EXHIBIT 10.11
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
C STATION, L.L.C.,
a Tennessee limited liability company,
as the Company
XXXXX & X'XXXX, INC.
XXXX X. XXXXX
XXXXX X. XXXXXXXX
STUDENT MANAGEMENT ASSOCIATES, LLC,
Collectively as the Owners,
XXXXXX X. XXXXXX
XXXXXXX X. XXXXX
XXXXXXX X. XXXXXX
XXXXXXX X. XXXXXX
Collectively as the Designees
EDR C STATION, LLC,
a Delaware limited liability company
as the Acquirer
and
EDUCATION REALTY OPERATING PARTNERSHIP, LP,
a Delaware limited partnership
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made as of the
20th day of September, 2004 by and among C STATION, L.L.C., a Tennessee limited
liability company (the "Company") and XXXXX & O'HARA, INC., XXXX X. XXXXX, XXXXX
X. XXXXXXXX, XXXXXXXX X. XXXXXXXX and STUDENT MANAGEMENT ASSOCIATES, LLC, who
are, collectively, all of the members of the Company (sometimes hereinafter
referred to individually as an "Owner" and collectively referred to as the
"Owners"), XXXXXX X. XXXXXX, XXXXXXX X. XXXXX, XXXXXXX X. XXXXXX and XXXXXXX X.
XXXXXX (sometimes hereinafter individually referred to as a "Designee" and
collectively referred to as the "Designees"); and, EDR C STATION, LLC, a
Delaware limited liability company (the "Acquirer"). EDUCATION REALTY OPERATING
PARTNERSHIP, LP, a Delaware limited partnership (the "Partnership"), joins in
this Agreement for the purpose of agreeing to the covenants and obligations set
forth in Section 3.2.
RECITALS
A. The Company is the owner of a student housing community known as The
College Station Apartments, located at 0000 Xxxxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxx
00000 (the "Property").
B. The Owners are, collectively, the record and beneficial owners of all
of the outstanding membership interests in the Company (such membership
interests are referred to herein collectively as the "Company Interests").
C. In lieu of being paid the merger consideration payable to it in
connection with the merger contemplated by this Agreement, Student Management
Associates, LLC has directed that the merger consideration payable to it by
virtue of such merger be paid to A&O Xxxxx X. Xxxxxxxx and the Designees.
D. The managers and members of each of Acquirer and the Company deem it to
be in the best interests of Acquirer and the Company and Acquirer's and the
Company's members for the Company to merge into Acquirer.
E. The Partnership is the sole owner of Acquirer and will receive a direct
financial benefit from the transactions contemplated by this Agreement.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
ARTICLE I
THE MERGER
1.1 Merger. In accordance with the terms and subject to the conditions of
this Agreement, and pursuant to the Tennessee Limited Liability Company Act and
the Delaware
Limited Liability Company Act, at the Effective Time (as defined in Section 1.2
below), the Company shall be merged with and into the Acquirer (the "Merger").
The Acquirer is herein referred to as the "Surviving Entity" whenever reference
is made to it at or after the Effective Time. At the Effective Time, all of the
Company Interests shall be converted into the right to receive the consideration
set forth in Section 1.4 hereof, and the separate existence of the Company shall
cease.
1.2 Effective Time of Merger. At or before the Closing Date (as defined in
Section 6.1 below), the Company and Acquirer shall execute the Certificate of
Merger in substantially the form attached hereto as Exhibit A, which shall be
filed with the Secretary of State of the State of Tennessee and the Secretary of
State of the State of Delaware on the Closing Date or as soon thereafter as
practicable. The Merger shall become effective at the time the Certificate of
Merger is duly filed with the Secretary of State of the State of Tennessee and
the Secretary of State of the State of Delaware (the "Effective Time").
1.3 Effect of Merger. At the Effective Time, the separate existence of the
Company shall cease and the Surviving Entity shall possess all of the rights,
privileges, immunities, powers and franchises, as well of a public nature as of
a private nature, of the Company; and all property, real, personal and mixed,
and all debts due on whatever account, and all other choses in action, and all
and every other interest of or belonging to or due to each of the Company shall
be taken and deemed to be transferred to and vested in the Surviving Entity
without further act or deed, and the title to any real estate or any interest
therein vested in the Company shall not revert or be in any way impaired by
reason of this Merger; and the Surviving Entity shall thenceforth be responsible
and liable for all the liabilities, obligations and penalties of the Company;
and any claim existing or action or proceeding, civil or criminal, pending by or
against the Company may be prosecuted as if such Merger had not taken place, or
the Surviving Entity may be substituted in its place, and any judgment rendered
against the Company may thenceforth be enforced against the Surviving Entity;
and neither the rights of creditors nor any liens upon the property of the
Company shall be impaired by such Merger.
1.4 Conversion of Membership Interests of the Company. At the Effective
Time, the Company Interests shall be converted into a total number of units
("Units") of limited partnership interest in the Partnership equal to (a) the
difference between $2,705,892 and the outstanding principal balances and accrued
but unpaid interest on the Property Loans (as defined in Section 2.2(h)) and
that certain loan from Xxxxx & X'Xxxx, Inc. to the Company disclosed on Section
2.2(k) of the Disclosure Schedule attached hereto as Exhibit B (the "Disclosure
Schedule"), as of the Closing Date, divided by (b) the per share price at which
the common stock (the "Common Stock") of Education Realty Trust, Inc., a
Maryland corporation (the "REIT"), is offered to the public in the underwritten
initial public offering of the Common Stock (the "Public Offering") before any
discounts or fees paid to underwriters (the "Merger Consideration"), payable to
the Owners and Designees in accordance with Schedule I attached hereto. Student
Management Associates, LLC acknowledges that it will receive none of the Units
and that all Units issuable to it by virtue of the Merger will be paid to its
members. No fractional Units will be issued as Merger Consideration hereunder,
but in lieu of issuing fractional Units, the value thereof shall be paid in
cash. Each Owner and Designee acknowledges that any certificates evidencing the
Units will bear appropriate legends indicating (a) that the Units have not been
registered under the Securities Act of 1933, as amended ("Securities Act"), and
(b) that the Partnership's Agreement of Limited Partnership (the "Partnership
Agreement") will restrict the transfer of the Units. Upon receipt of the Units,
the Owner or its Designee (provided the Designee is an accredited
investor) shall become a limited partner of the Partnership and shall execute
the Partnership Agreement. At and after the Effective Time, all of the issued
and outstanding shares in the Acquirer shall remain issued and outstanding. From
and after the Effective Time, each holder of any Company Interests to be
converted as above provided shall surrender any certificates representing its
Company Interest to the Surviving Entity. Irrespective of whether so
surrendered, however, each such Company Interest shall be deemed to be canceled
and shall be of no further force or effect.
1.5 Redemption Rights for Units. Each Unit shall be redeemable at the
option of the holder, in accordance with, but subject to the restrictions
contained in, the Partnership Agreement; provided, however, that such redemption
option may not be exercised prior to the first anniversary of the Closing Date.
1.6 Tax Consequences to Owners. Notwithstanding anything to the contrary
contained in this Agreement, including without limitation the use of words and
phrases such as "sell and" "sale," and "pay," the parties agree that it is their
intent that the transactions contemplated hereby shall be treated for federal
income tax purposes, pursuant to Section 721 of the Internal Revenue Code of
1986, as amended (the "Code"), as the contribution of the Company Interests by
the Owners to the Partnership, in exchange for Units.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Representations by Acquirer. The Acquirer hereby represents and
warrants to each Owner that:
(a) Organization and Power. The Acquirer is duly organized, validly
existing, and in good standing under the laws of the State of Delaware, and has
full right, power, and authority to enter into this Agreement and to perform all
of its obligations under this Agreement. The execution and delivery of this
Agreement and the performance by the Acquirer of its obligations hereunder have
been duly authorized by all requisite action of the Acquirer and require no
further action or approval of the Acquirer's members or of any other individuals
or entities in order to constitute this Agreement as a binding and enforceable
obligation of the Acquirer.
(b) Noncontravention. Neither the entry into nor the performance of,
or compliance with, this Agreement by the Acquirer has resulted, or will result,
in any violation of, or default under, or result in the acceleration of, any
obligation under any existing certificate of formation, limited liability
company agreement, mortgage, indenture, lien agreement, note, contract, permit,
judgment, decree, order, restrictive covenant, statute, rule, or regulation
applicable to the Acquirer.
(c) Litigation. There is no action, suit, or proceeding, pending or
known to be threatened, against or affecting the Acquirer in any court or before
any arbitrator or before any federal, state, municipal, or other governmental
department, commission, board, bureau, agency or instrumentality which (i) in
any manner raises any question affecting the validity or enforceability of this
Agreement or any other agreement or instrument to which the Acquirer is a
party or by which it is bound and that is to be used in connection with or is
contemplated by this Agreement, (ii) could have material and adverse effect on
the business, financial position, or results of operations (a "Material Adverse
Effect") of the Acquirer, (iii) could materially and adversely affect the
ability of the Acquirer to perform its obligations hereunder, or under any
document to be delivered pursuant hereto.
(d) Consents. Except in connection with the initial public offering
of the common stock of Education Realty Trust, Inc., a Maryland corporation (the
"REIT") which, indirectly, is the parent corporation of the Acquirer (the
"Public Offering"), each consent, approval, authorization, order, license,
certificate, permit, registration, designation, or filing by or with any
governmental agency or body necessary for the execution, delivery, and
performance of this Agreement or the transactions contemplated hereby by the
Acquirer has been obtained or will be obtained on or before the Closing Date.
(e) Units Validly Issued. The Units, when issued, will have been
duly and validly authorized and issued, free of any preemptive or similar
rights, and will be fully paid and nonassessable, without any obligation to
restore capital except as required by the Delaware Revised Uniform Limited
Partnership Act (the "Limited Partnership Act"). Each Owner (or its Designee)
shall be admitted as a limited partner of the Acquirer as of the Closing Date
and shall be entitled to all of the rights and protections of a limited partner
under the Limited Partnership Act and the provisions of the Partnership
Agreement, with the same rights, preferences, and privileges as all other
limited partners on a pari passu basis. The Common Stock for which the Units may
be redeemed have been validly authorized and will be duly and validly issued,
fully paid and nonassessable, free of preemptive or similar rights.
2.2 Representations by Owners. Each Owner hereby jointly and severally
represents and warrants to the Acquirer:
(a) Organization and Power. The Company is duly formed, validly
existing, and in good standing under the laws of the State of Tennessee. The
Company and each Owner has full right, power, and authority to enter into this
Agreement and to assume and perform all of their respective obligations under
this Agreement. The execution and delivery of this Agreement and the performance
by the Company and each Owner of their respective obligations hereunder have
been duly authorized by all requisite action of the Company and each Owner and
require no further action or approval of the Company's or any Owner's members,
managers, officers, directors or shareholders or of any other individuals or
entities in order to constitute this Agreement as a binding and enforceable
obligation of the Company and each Owner. The Company is qualified to do
business in each jurisdiction in which the nature of its business or the
character of its property makes such qualification necessary, except where
failure to be so qualified would not have a Material Adverse Effect on the
Company. The Company has provided to the Acquirer true and correct copies of the
Company's operating agreement and other organizational documents, with all
amendments as in effect on the date of this Agreement (collectively, the
"Organizational Documents").
(b) Noncontravention. Neither the entry into nor the performance of,
or compliance with, this Agreement by the Company or any of the Owners has
resulted, or will result, in any violation of, or default under, or result in
the acceleration of, any obligation under
any of the Organizational Documents, regulations, mortgage indenture, lien
agreement, note, contract, permit, judgment, decree, order, restrictive
covenant, statute, rule, or regulation applicable to, the Company or any Owner.
(c) Litigation. There is no action, suit, or proceeding, pending or
known to be threatened, against or affecting the Company, any of the Owners or
the Property in any court or before any arbitrator or before any federal, state,
municipal, or other governmental department, commission, board, bureau, agency
or instrumentality which (i) in any manner raises any question affecting the
validity or enforceability of this Agreement, (ii) could have a Material Adverse
Effect with respect to the Company, any Owner or the Property, (iii) could
materially and adversely affect the ability of the Company or any Owner to
perform its obligations hereunder or under any document to be delivered pursuant
hereto, or (iv) could create a mortgage, lien, pledge, security interest,
assessment, charge, claim, restriction, pledge, or encumbrance (a "Lien") on the
Company Interests, the Company, the Property, any part thereof, or any interest
therein.
(d) Solvency. The Company and each Owner has been and will be
solvent at all times prior to and immediately following the Merger. There are no
attachments, executions, assignments for the benefit of creditors, or voluntary
or involuntary proceedings in bankruptcy or under other debtor relief laws
contemplated by, pending, or, to any Owner's knowledge, threatened against the
Owners, the Company or the Property.
(e) Ownership of Company Interests. The Company Interests listed on
Section 2.2(e) of the Disclosure Schedule constitute all of the issued and
outstanding equity interests in the Company, and all such interests are owned by
the Owners.
(f) No Consents. Except for the filing of the Certificate of Merger
in accordance with Section 1.2 hereof, and except as shall have been obtained on
or before the Closing Date, and, for informational purposes, as set forth in
Section 2.2(f) of the Disclosure Schedule, no consent, approval, authorization,
order, license, certificate, permit, registration, designation, or filing by or
with any third party or governmental agency or body is necessary for the
execution, delivery, and performance of this Agreement or the transactions
contemplated hereby by the Company or any Owner.
(g) No Brokers. Neither the Company nor any of the Owners has
engaged the services of any real estate agent, broker, finder or any other
person or entity for any brokerage or finder's fee, commission or other amount
with respect to the transactions described herein.
(h) Title to the Property. The Company owns good and marketable fee
simple title of record to the Property identified in the recitals hereto and
further described on Section 2.2(h) of the Disclosure Schedule, free and clear
of any Liens other than the deeds of trust securing the loans related to the
Property (the "Property Loans") described in Section 2.2(h) of the Disclosure
Schedule, the lien for current year real estate taxes and assessments not yet
due or payable, and such recorded utility easements serving the Property which
do not materially adversely affect the marketability of title to the Property or
the use of the Property.
(i) No Agreements to Sell. Neither the Company nor any Owner has
made any agreement with, and will not enter into any agreement with, and has no
obligation (absolute or contingent) to, any other person or firm to sell,
transfer or in any way encumber the Property or to not sell the Property, or to
enter into any agreement with respect to a sale, transfer or encumbrance of or
put or call right with respect to the Property.
(j) Leases. The Company holds the lessor's interest under all
leases, licenses, tenancies, possession agreements and occupancy agreements with
the tenants of the Property (the "Leases"). A true and complete copy of all
Leases have been made available to the Acquirer; to the Owners' knowledge, such
Leases are in full force and effect, except as indicated otherwise in Section
2.2(j) the Disclosure Schedule, the Company, as lessor under such Leases, has
not received any notice that it is in default of any of its obligations under
such Leases beyond any applicable grace period which has not been cured; to the
Owners' knowledge, except as set forth in Section 2.2(j) of the Disclosure
Schedule, no tenant is in default under any Lease except to the extent such
default would not have a Material Adverse Effect with respect to the Company;
rent is being billed to the tenants in accordance with the Leases; no tenant is
entitled to "free" rent, rent concessions, rebates, rent abatements, set-offs,
or offsets against rent and no tenant under any such Lease claims a right to any
of the foregoing, except as set forth in Section 2.2(j) of the Disclosure
Schedule; the Company has received no written notice that any tenant under any
such Lease contests any rent or other charges billed to it, except as set forth
in Section 2.2(j) of the Disclosure Schedule; no assignment of the Company's
rights under any Lease is in effect on the date hereof other than collateral
assignments to secure mortgage indebtedness; and, except as set forth in Section
2.2(j) of the Disclosure Schedule with respect to any Leases entered into by the
Company, no brokerage commissions will be due upon the failure of any tenant
under any such Lease to exercise any cancellation right granted in its Lease or
upon any extension or renewal of such Leases. To the Owners' knowledge, all
material obligations of the lessor under the Leases that have accrued to the
date hereof have been performed or satisfied.
(k) Liabilities; Indebtedness. Except for the Property Loans, the
Company has no indebtedness or liabilities whatsoever, contingent, accrued or
otherwise, except for trade payables and obligations for other customary and
ordinary expenses incurred in the ordinary course of business that are not more
than thirty (30) days delinquent and that have been disclosed to the Acquirer.
(l) Insurance. The Company currently has in place public liability,
casualty and other insurance coverage with reputable insurance companies with
respect to the Property in customary amounts for projects similar to the
Property in the market in which the Property is located, and in all cases in
compliance with the existing financing arrangements. To the Owners' knowledge,
each of such policies is in full force and effect, and all premiums due and
payable thereunder have been fully paid when due. No written notice of
cancellation, default or non-renewal has been received or to the Owners'
knowledge threatened with respect thereto.
(m) Personal Property. The Company owns all of the tangible personal
property constituting Fixtures and Personal Property (as defined below) which is
used in and, individually or in the aggregate with other such property, is
material to the operation of the Property. "Fixtures and Personal Property"
shall mean all fixtures, furniture, furnishings, apparatus and fittings,
equipment, machinery, appliances, building supplies, tools, and other items of
personal
property located on the Property and used in connection with the operation or
maintenance of the Property; excluding, however, all furniture, furnishings, and
other items of personal property owned by tenants. To the Owners' knowledge,
except as set forth in Section 2.2(m) of the Disclosure Schedule, such Fixtures
and Personal Property are free and clear of all Liens. All equipment, fixtures
and personal property located at or on the Property shall remain and not be
removed prior to the Closing, except for equipment that becomes obsolete or
unusable, which may be replaced in the ordinary course of business.
(n) Employees and Contracts. Except as set forth in Section 2.2(n)
of the Disclosure Schedule, (i) there are no contracts with employees of the
Company as of the date hereof, nor (ii) service or maintenance contracts
affecting the Property, in each case which are not cancelable upon thirty (30)
days notice or less or which are for a contract amount greater than $100,000 per
annum. True and correct copies of all service, equipment, franchise, operating,
management, parking, supply, utility and maintenance agreements relating to the
Property (the "Service Contracts") have been made available to the Acquirer and
the same are in full force and effect and have not been modified or amended
except in the ordinary course of the Company's business. To the Owners'
knowledge, no event of default exists (which remains uncured) under any of the
Service Contracts which would have a Material Adverse Effect with respect to the
Company. To the Owners' knowledge, there are no union contracts or similar
agreements between the Company and its employees. Except as set forth in Section
2.2(n) of the Disclosure Schedule, no employee is entitled to receive annual
compensation (including bonus) from the Company in excess of $100,000.
(o) Property Loans. To the Owners' knowledge, the Property Loans and
the documents entered into in connection therewith (collectively, the "Loan
Documents") are in full force and effect as of the date hereof. To the Owners'
knowledge, no event of default or event that with the passage of time or giving
of notice or both would constitute an event of default has occurred as of the
date hereof under any of the Loan Documents which would have a Material Adverse
Effect on the Company. True and correct copies of the existing Loan Documents
have been made available to the Acquirer.
(p) Taxes. To the Owners' knowledge, the transactions contemplated
hereby will not result in any income tax liability to the Company, the Acquirer
or the Partnership, and no tax Lien or other Lien exists or will exist upon
consummation of the transactions contemplated hereby with respect to the
Property or any other property of the Company, except such tax Liens for which
the tax is not due and which has been properly reserved for payment by the
Company or any Lien relating to the Property Loan or tax Liens or other charges
which individually or in the aggregate would not have a Material Adverse Effect
with respect to the Company or the Property. The copies of the real property tax
bills for the Property for the current tax year which have been furnished or
made available to the Acquirer are true and correct copies of all of the tax
bills for such tax year actually received by the Company or the Company's agents
for the Property. For federal income tax purposes, the Company is, and at all
times during its existence has been, a partnership or limited liability company
taxable as a partnership (rather than an association or a publicly traded
partnership taxable as a corporation). The Company has timely and properly filed
all tax returns required to be filed by it and has timely paid all taxes
required to be paid by it. The Company has not requested any extension of time
or agreed to any extension of the applicable statue of limitations within which
to file any pending tax returns.
None of the tax returns filed by the Company is the subject of a pending or
ongoing audit, and no federal, state, local or foreign taxing authority has
asserted any tax deficiency or other assessment against any Property or the
Company.
(q) Zoning. None of the Owners or the Company has received any
written notice (which remains uncured) from any governmental authority stating
that the Property is currently violating any zoning, land use or other similar
rules or ordinances in any material respect that would reasonably be expected to
have a Material Adverse Effect with respect to the Company.
(r) Property Management Agreements. All of the property management
agreements for the Property are listed in Section 2.2(r) of the Disclosure
Schedule and are in full force and effect and neither the Company nor, to the
knowledge of the Owners, any other party to such management agreements is in
default thereunder.
(s) No Agreements. The Property is not subject to any outstanding
agreement of sale or ground lease, option to purchase or other right of any
third party to acquire any interest therein (other than under the Leases).
(t) Environmental Conditions. The Company has not received any
written notice of the presence or release of any substance that is regulated
under any Environmental Laws as a pollutant, contaminant or toxic, radioactive
or otherwise hazardous substance, including petroleum, its derivatives or
by-products and other hydrocarbons (collectively and individually, "Hazardous
Substances") that would cause any of the Property, or the Company to be in
violation of any applicable Environmental Laws and that remains uncured, nor has
the Company received written notice that the Property is not in compliance with
applicable Environmental Laws. There are no Hazardous Substances located at, on
or under any Property and no Hazardous Substances have leaked, escaped or been
discharged, emitted or otherwise released from the Property onto any adjoining
properties. For the purposes of this Section, "Environmental Laws" means any and
all federal, state and local statutes, laws, regulations and rules in effect on
the date hereof relating to the protection of the environment or to the use,
transportation and disposal of Hazardous Substances.
(u) Compliance With Laws. The Company possesses and/or on or prior
to Closing will possess such certificates, authorities or permits issued by the
appropriate state or federal agencies or bodies necessary to conduct the
business to be conducted by it, and the Company has not received any written
notice of proceedings that have been or may be commenced relating to the
revocation or modification or any such certificate, authority or permit which,
singly or in the aggregate, if the subject of an unfavorable decision, ruling,
or finding, would have a Material Adverse Effect with respect to the Company.
The Company has not received any written or other notice of any violation of any
applicable zoning, building or safety code, rule, regulation or ordinance, or of
any employment, environmental, wetlands or other regulatory law, order,
regulation or other requirement, including without limitation the Americans with
Disabilities Act, or any restrictive covenants or other easements, encumbrances
or agreements, relating to the Property, which remains uncured and would have a
Material Adverse Effect with respect to the Company.
(v) Condemnation and Moratoria. There are (i) no pending or
threatened condemnation or eminent domain proceedings, or negotiations for
purchase in lieu of condemnation, which affect or would affect the Property;
(ii) no pending or threatened moratoria on utility or public water or sewer
hook-ups or the issuance of permits, licenses or other inspections or approvals
necessary in connection with the construction or reconstruction of improvements
which affect or would affect any portion of the Property; and (iii) no pending
or threatened proceeding to change adversely the existing zoning classification
as to any portion of the Property. No portion of the Property is a designated
historic property or located within a designated historic area or district, and
there are no graveyards or burial grounds located within the Property. The
Owners have no actual knowledge of any change or proposed change in the route,
grade or width of or otherwise affecting, any street or road adjacent to or
serving the Property which could reasonably be expected to have a Material
Adverse Effect with respect to the Company.
(w) Condition of Improvements. There is no material defect in the
condition of the Property, including the improvements thereon, the roof,
foundation, load-bearing walls or other structural elements thereof, and the
mechanical, electrical, plumbing and safety systems therein. No material damage
to the Property has occurred from casualty or other cause, nor is there any soil
condition of any nature that will not support all of the improvements thereon
without the need for unusual or new subsurface excavations, fill, footings,
caissons or other installations. All utilities necessary for the current
operation of the Property are available to the Property.
(x) Securities Law Matters.
(i) Each Owner is knowledgeable, sophisticated and experienced
in business and financial matters; each Owner has previously invested in
securities similar to the Units and fully understands the limitations on
transfer imposed by the federal securities laws and as described in this
Agreement. Each Owner is able to bear the economic risk of holding the Units for
an indefinite period and is able to afford the complete loss of his, her or its
investment in the Units; each Owner has received and reviewed all information
and documents about or pertaining to the REIT, the Partnership, Acquirer, the
business and prospects of the REIT, the Partnership and the Acquirer and the
issuance of the Units as each Owner deems necessary or desirable and has been
given the opportunity to obtain any additional information or documents and to
ask questions and receive answers about such information and documents, the
REIT, the Partnership, the Acquirer, the business and prospects of the REIT, the
Partnership and the Acquirer and the Units which such Owner deems necessary or
desirable to evaluate the merits and risks related to its investment in the
Units and to conduct its own independent valuation of the Units; and each Owner
understands and has taken cognizance of all risk factors related to the purchase
of the Units. Each Owner is a sophisticated real estate investor. In acquiring
the Units and engaging in this transaction, no Owner is relying upon any
representations made to it by the Partnership or Acquirer, or any of the
officers, employees, or agents of the Partnership or Acquirer not contained
herein. Each Owner is relying upon its own independent analysis and assessment
(including with respect to taxes), and the advice of such Owner's advisors
(including tax advisors), and not upon that of the Acquirer or any of the
Acquirer's advisors or affiliates, for purposes of evaluating, entering into,
and consummating the transactions contemplated by this
Agreement. Each Owner represents and warrants that it has reviewed and approved
the form of the Partnership Agreement attached hereto as Exhibit C.
(ii) Each Owner understands that neither the Units nor the
Common Stock issuable upon redemption of the Units have been registered under
the Securities Act or any state securities acts and are instead being offered
and sold in reliance on an exemption from such registration requirements. The
Units issuable to each Owner (or its Designee) are being acquired solely for its
own account, for investment, and are not being acquired with a view to, or for
resale in connection with, any distribution, subdivision, or fractionalization
thereof, in violation of such laws, and the Owner has no present intention to
enter into any contract, undertaking, agreement, or arrangement with respect to
any such resale; provided, however, that, at or following Closing, the Owner may
distribute the Units to those of its members or successors that (A) have
represented and warranted to the Acquirer in writing that, as of the time of
such distribution, such member is an accredited investor as that term is defined
in Rule 501 of Regulation D under the Securities Act, and (B) have executed the
Partnership Agreement as limited partners. Each Owner understands that any
certificates evidencing the Units will contain appropriate legends reflecting
the requirement that the Units not be resold without registration under such
laws or the availability of an exemption from such registration and that the
Partnership Agreement will restrict transfer of the Units.
(iii) Each Owner is an "accredited investor" as that term is
defined in Rule 501 of Regulation D under the Securities Act of 1933, as
amended. Each Owner has previously provided the Acquirer with a duly executed
Accredited Investor Questionnaire. No event or circumstance has occurred since
delivery of such Questionnaire to make the statements contained therein false or
misleading.
(y) Patriot Act Representations. No Owner, nor to the knowledge of
such Owner, any direct or indirect owner of such Owner, (i) are included on any
Government List, (ii) are Persons who have been determined by competent
authority to be subject to the prohibitions contained in the Presidential
Executive Order No. 13224 or any other similar prohibitions contained in the
rules and regulations of the OFAC or in any enabling legislation or other
Presidential Executive Orders in respect thereof, (iii) have been indicted or
convicted of any Patriot Act Offenses, or (iv) are currently under investigation
by any governmental authority for alleged criminal activity. For purposes of
this Agreement, (i) "Government List" means (A) the Specially Designated
Nationals and Blocked Persons List maintained by OFAC, (B) any other list of
terrorists, terrorist organizations or narcotics traffickers maintained pursuant
to any of the Rules and Regulations of OFAC, or (C) any similar list maintained
by the United States Department of State, the United States Department of
Commerce or any other governmental authority or pursuant to any Executive Order
of the President of the United States of America; (ii) "OFAC" means the Office
of Foreign Asset Control, U.S. Department of the Treasury, (iii) "Patriot Act"
means the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, as
the same may be amended from time to time, and corresponding provisions of
future laws, and (iv) "Patriot Act Offense" means any violation of the criminal
laws of the United States of America or of any of the several states, or that
would be a criminal violation if committed within the jurisdiction of the United
States of America or any of the several states, relating to terrorism or the
laundering of monetary instruments, including any offense under (A) the criminal
laws
against terrorism, (B) the criminal laws against money laundering, (C) the Bank
Secrecy Act, as amended, (D) the Money Laundering Control Act of 1986, as
amended, or (E) the Patriot Act and also means the crimes of conspiracy to
commit, or aiding and abetting another to commit any of the foregoing.
2.3 Representations and Warranties of the Designees. Each of the Designees
jointly and severally makes the representations and warranties contained in
Section 2.2(x) that are made by each of the Owners as if all references to
"Owner" or "Owners" is Section 2.2(x) referred to "Designee" and "Designees."
ARTICLE III
COVENANTS AND INDEMNITIES
3.1 Covenants Pending Closing.
(a) From the date hereof through the Closing, each Owner shall, to
the extent within his or its control, cause the Company to conduct its business
in the ordinary course of business, consistent with past practice, and shall, to
the extent within his or its control, not permit the Company, without the prior
written consent of Acquirer, to:
(i) Enter into any material transaction not in the ordinary
course of business:
(ii) Sell, transfer or dispose of, or cause the sale, transfer
or disposition of (or agree to do any of the foregoing) any assets of the
Company, except in the ordinary course of business consistent with past
practice;
(iii) Mortgage, pledge or encumber (or permit to become
encumbered) any assets of the Company, except (A) liens for taxes not due, (B)
purchase money security interests in the ordinary course of such entity's
business, and (C) mechanics' liens being disputed by the Company in good faith
and by appropriate proceeding in the ordinary course of the Company's business
(provided such mechanics liens are released prior to or on the Closing Date at
no cost to the Acquirer);
(iv) Amend, modify or terminate any Lease, contract or other
instruments relating to the Property to which the Company is a party, except in
the ordinary course of the Company's business consistent with past practice;
(v) Cause or permit the Company to change the existing use of
the Property;
(vi) Cause or permit the Company to enter into any new Lease
or terminate any existing Lease except in the ordinary course of the Company's
business consistent with past practice;
(vii) Cause or take any action that would render any of the
representations or warranties regarding the Company or the Property as set forth
herein untrue in any material respect;
(viii) Terminate or amend any existing insurance policies
affecting the Property that results in a material reduction in insurance
coverage for the Property;
(ix) Knowingly cause or permit the Company to violate or fail
to use commercially reasonable efforts to cure any violation of any applicable
laws;
(x) Materially alter the manner of keeping the Company's
books, accounts or records or the accounting methods therein reflected; or
(xi) Make any distribution to its members.
(c) From the date hereof until the Closing Date, the Company will
afford to the officers and authorized representatives of the Acquirer access to
all of the Company's books and records and will furnish the Acquirer with such
additional financial and operating data and other information as to the business
and properties of the Company as the Acquirer may from time to time reasonably
request.
(d) Notwithstanding anything to the contrary contained herein, any
failure by an Owner to comply with or fulfill the covenants contained in this
Section 3.1 shall not constitute an indemnifiable claim under Section 3.4 of
this Agreement, but shall constitute an unfulfilled condition precedent pursuant
to Section 5.1, provided such failure is identified to or otherwise becomes
known to the Acquirer prior to Closing.
3.2 Tax Covenants.
(a) From the date hereof and subsequent to the Closing, each Owner
and the Acquirer shall provide each other with such cooperation and information
relating to the Company as the parties reasonably may request in (i) filing any
tax return, amended tax return or claim for tax refund, (ii) determining any
liability for taxes or a right to a tax refund, or (iii) conducting or defending
any proceeding in respect of taxes. The Acquirer shall promptly notify the
Owners in writing upon receipt by the Acquirer or any of its affiliates of
notice of (i) any pending or threatened tax audits or assessments with respect
to the Company and (ii) any pending or threatened federal, state, local or
foreign tax audits or assessments of the Acquirer or any of its affiliates, in
each case which may affect the liabilities for taxes of any Owner with respect
to any tax period ending on or before the Closing Date. Each Owner shall
promptly notify the Acquirer in writing upon receipt by such Owner of notice of
any pending or threatened federal, state, local or foreign tax audits or
assessments relating to the income, properties or operations of the Company.
Each of the Acquirer and each Owner may participate at its own expense in the
prosecution of any claim or audit with respect to taxes attributable to any
taxable period ending on or before the Closing Date, provided, that such Owners
shall have the right to control the conduct of any such audit or proceeding or
portion thereof for which the Owners (or its owners) has acknowledged liability
(except as a partner of the Partnership) for the payment of any additional tax
liability, and the Acquirer shall have the right to control any other audits and
proceedings. Notwithstanding the foregoing, neither the Acquirer nor any Owner
may settle or
otherwise resolve any such claim, suit or proceeding which could have an adverse
tax effect on the other party or its owners without the consent of the other
party, such consent not to be unreasonably withheld. Each Owner and the Acquirer
shall retain all tax returns, schedules and work papers, and all material
records and other documents relating thereto, until the expiration of the
statute of limitations (and, to the extent notified by any party, any extensions
thereof) of the taxable years to which such tax returns and other documents
relate to and until the final determination of any tax in respect of such years.
(b) With respect to the Property, the Acquirer and each Owner agrees
that the Acquirer shall use the "traditional method" with "curative
allocations", as described in Regulations Section 1.704-3(c), to make
allocations of taxable income and loss among the partners of the Partnership
with respect to the Property.
3.3 Financial Records.
(a) Each Owner acknowledges that Acquirer may be required to comply
with certain acquisition audit or disclosure requirements pursuant to applicable
regulations of the Securities Exchange Commission ("SEC") in connection with the
Public Offering. As such, Acquirer may be required to file with the SEC audited
financial statements of the Company, the Property and/or pro forma financial
statements giving effect to the acquisition of the Property. Accordingly, each
Owner agrees to cooperate and make available to Acquirer such records as may be
necessary to permit Acquirer to comply with SEC requirements.
(b) At the Closing, each Owner agrees to cause the Company to
deliver to Acquirer the most recent audited financial statements of the Company
and the Property, if any, and any more current unaudited balance sheets and
income statements for the Company and the
Property for the current fiscal year through the Closing Date and for the
comparable portion of the prior fiscal year.
(c) Subsequent to the Closing, each Owner agrees to cooperate with
Acquirer's independent auditors to provide access to financial records and
accounting personnel that may be required to permit the preparation and audit of
financial statements of the Company and/or the Property for the required periods
pursuant to applicable SEC regulations. This provision shall survive the
Closing.
3.4 Owners' Indemnity. The Owners hereby jointly and severally agree to
indemnify and hold each of the Acquirer, the REIT, and each of their respective
employees, directors, members, partners, affiliates, officers and agents (each
of which is an "Indemnified Acquirer Party") harmless of and from all
liabilities, losses, damages, costs, and expenses (including reasonable
attorneys' fees) (collectively, "Losses") which the Indemnified Acquirer Party
may suffer or incur by reason of (a) any breach of any Owner's representations
or warranties contained in Section 2.2 of this Agreement, (b) any act or cause
of action occurring or accruing prior to the Closing Date and arising from the
ownership of the Company prior to the Closing Date, and (c) the ownership or
operation of the Property and relating to the period prior to the Closing Date,
including, without limitation, actions or claims relating to damage to property
or injury to or death of any person occurring or arising during the period prior
to the Closing Date, or any claims for any debts or obligations occurring on or
about or in connection with the Property or any portion thereof or with respect
to the Property' operations at any time prior to the Closing Date.
Notwithstanding the foregoing, each Owner shall severally, and not jointly,
indemnify the Indemnified Acquirer Parties for any breach of Section 2.2(y) as
to itself and shall have no obligation to indemnify any Indemnified Acquirer
Party for any breach of Section 2.2(y) by any other Owner.
3.5 Acquirer's Indemnity. The Acquirer agrees to indemnify and hold each
Owner, and each Owner's employees, directors, members, partners, affiliates,
officers and agents (each of which is an "Indemnified Owner Party") harmless of
and from all Losses which the Indemnified Owner Party may suffer or incur by
reason of (a) any breach of the Acquirer's representations or warranties
contained in Section 2.1 of this Agreement, (b) any act or cause of action
occurring or accruing on or after the Closing Date and arising from the
ownership of the Company or the operation of the Property on or after the
Closing Date, and (c) the ownership or operation of the Property and relating to
the period on or after the Closing Date, including, without limitation, actions
or claims relating to damage to property or injury to or death of any person
occurring or arising during the period on or after the Closing Date, or any
claims for any debts or obligations occurring on or about or in connection with
the Property or any portion thereof or with respect to the Property' operations
at any time on or after the Closing Date.
ARTICLE IV
RELEASES AND WAIVERS
Each of the releases and waivers enumerated in this Article 4 shall become
effective only upon the Closing.
4.1 General Release of Acquirer.
As of the Closing, each Owner irrevocably waives, releases and forever
discharges the Acquirer and the Acquirer's affiliates (including the Company),
member, agents, attorneys, successors and assigns of and from, any and all
charges, complaints, claims, liabilities, damages, actions, causes of action,
losses and costs of any nature whatsoever (collectively, "Owner Claims"), known
or unknown, suspected or unsuspected, arising out of or relating to any of the
Organizational Documents, the Property or any other matter which exists at the
Closing, except for Owner Claims arising from the breach of any representation,
warranty, covenant or obligation by the Acquirer under this Agreement or any
agreement contemplated hereby.
4.2 General Release of Owners.
As of the Closing, the Acquirer irrevocably waives, releases and forever
discharges each Owner and each Owner's agents, attorneys, successors and assigns
of and from, any and all charges, complaints, claims, liabilities, damages,
actions, causes of action, losses and costs of any nature whatsoever
(collectively, "Acquirer Claims"), known or unknown, suspected or unsuspected,
arising out of or relating to any of the Organizational Documents, the Property
or any other matter which exists at the Closing, except for Acquirer Claims
arising from the breach of any representation, warranty, covenant, or obligation
by any Owner under this Agreement or any agreement contemplated hereby.
ARTICLE V
CONDITIONS PRECEDENT TO THE CLOSING
5.1 Conditions to Acquirer's Obligations. In addition to any other
conditions set forth in this Agreement, the Acquirer's obligation to consummate
the Closing is subject to the timely satisfaction of each and every one of the
conditions and requirements set forth in this Section 5.1, all of which shall be
conditions precedent to the Acquirer's obligations under this Agreement.
(a) Company's and Owners' Obligations. The Company and the Owners
shall have performed all of their respective obligations hereunder which are to
be performed prior to Closing, and shall have delivered or caused to be
delivered to the Acquirer, all of the documents and other information required
of the Owners pursuant to Section 6.2.
(b) Owners' Representations and Warranties. The Owners'
representations and warranties set forth in Section 2.2 shall be true and
correct as if made again on the Closing Date.
(c) No Injunction. On the Closing Date, there shall be no effective
injunction, writ, preliminary restraining order or other order issued by a court
of competent jurisdiction restraining or prohibiting the consummation of the
transactions contemplated hereby.
(d) Completion of Public Offering. The Public Offering shall have
been completed.
(e) Title Policies. Acquirer shall have received updated title
policies for the Property as of the Closing Date satisfactory to the Acquirer.
5.2 Conditions to the Company's and the Owners' Obligations. In addition
to any other conditions set forth in this Agreement, the Company's and the
Owners' obligation to consummate the Closing is subject to the timely
satisfaction of each and every one of the conditions and requirements set forth
in this Section 5.2, all of which shall be conditions precedent to the Owner's
obligations under this Agreement.
(a) Acquirer's Obligations. The Acquirer shall have performed all
obligations of the Acquirer hereunder which are to be performed prior to
Closing, and shall have delivered or caused to be delivered to the Owners, all
of the documents and other information required of the Acquirer pursuant to
Section 6.3.
(b) Acquirer's Representations and Warranties. The Acquirer's
representations and warranties set forth in Section 2.1 shall be true and
correct as if made again on the Closing Date.
(c) Completion of Public Offering. The Public Offering shall have
been completed.
ARTICLE VI
CLOSING AND CLOSING DOCUMENTS
6.1 Closing. The consummation and closing (the "Closing") of the
transactions contemplated under this Agreement shall take place at 10:00 a.m. at
the offices of Xxxxxx, Xxxxxxx & Xxxxxx, LLP in Atlanta, Georgia, or such other
place as is mutually agreeable to the parties, on the day (the "Closing Date")
the Partnership receives the proceeds from the Public Offering from the
underwriter(s); provided, however, that this Agreement shall terminate if
Closing does not occur prior to March 31, 2005.
6.2 Owners' Deliveries. At the Closing, the Owners shall deliver the
following to the Acquirer in addition to all other items required to be
delivered to the Acquirer by the Owners:
(a) Company Interest Certificates. If the Company Interests are
certificated, certificates issued by the Company to the Owners representing all
the issued and outstanding Company Interests duly endorsed in blank.
(b) Books and Records. All books and records, title insurance
policies, leases, lease files, contracts, stock certificates, original
promissory notes, another indicia of ownership with respect to the Company and
the Property which are in the Company's possession or which can be obtained
through the Company's reasonable efforts.
(c) Other Documents. Any other document or instrument reasonably
requested by the Acquirer or required hereby. Upon request of the Acquirer, the
Owners shall provide a certified copy of all appropriate corporate actions
executing the execution, delivery and performance by each Owner of this
agreement.
6.3 Acquirer's Deliveries. At the Closing, the Acquirer shall deliver the
following to the Owners:
(a) Certificates for Units. If certificates are issued, certificates
representing Units duly issued by the Partnership in the name the Owner (or its
designee) as of the Closing Date representing the Units to which the Owner is
entitled pursuant to Section 1.2 of this Agreement.
(b) Executed Partnership Agreement. The fully executed Partnership
Agreement, with the original duly executed signature of Education Realty OP GP,
Inc., a Delaware corporation which is the wholly-owned subsidiary of the REIT,
as general partner, and original or photostatic copies of the signatures of all
limited partners.
(c) Other Documents. Any other document or instrument reasonably
requested by the Owners or required hereby.
6.4 Fees and Expenses; Closing Costs. The Acquirer shall pay all legal
fees and professional expenses incurred by the Company and Acquirer in
connection with the transactions contemplated by this Agreement; provided
however, that the Owners shall pay their own legal fees and expenses.
ARTICLE VII
MISCELLANEOUS
7.1 Notices. Any notice provided for by this Agreement and any other
notice, demand, or communication required hereunder shall be in writing by
either (i) personal delivery (including recognized overnight delivery service),
(ii) confirmed facsimile transmission or (iii) certified or registered mail,
postage prepaid, with return receipt requested. All notices shall be addressed
as follows:
Acquirer:
EDR C Station, LLC
c/o Education Realty Operating Partnership, LP
000 Xxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxx
Fax No.: (000)000-0000
with a copy to:
Xxxxxx, Xxxxxxx & Xxxxxx, LLP
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxxxx X. Xxxxxxxx
Fax No.: (000) 000-0000
The Owners or the Designees at the addresses set forth for the
Owners on Schedule I hereto.
Any address or name specified above may be changed by a notice given by the
addressee to the other party. Any notice, demand or other communication shall be
deemed given and effective as of the date of delivery. The inability to deliver
because of changed address of which no notice was given, or rejection or other
refusal to accept any notice, demand or other communication, shall be deemed to
be receipt of the notice, demand or other communication as of the date of such
attempt to deliver or rejection or refusal to accept.
7.2 Entire Agreement; Modifications and Waivers; Cumulative Remedies. This
Agreement supersedes any existing letter of intent between the parties,
constitutes the entire agreement among the parties hereto and may not be
modified or amended except by instrument in writing signed by the parties
hereto, and no provisions or conditions may be waived other than by a writing
signed by the party waiving such provisions or conditions. No delay or omission
in the exercise of any right or remedy accruing to the Company, the Owners or
the Acquirer upon any breach under this Agreement shall impair such right or
remedy or be construed as a waiver of any such breach theretofore or thereafter
occurring. The waiver by the Company, the Owners or the Acquirer of any breach
of any term, covenant, or condition herein stated shall not be deemed to be a
waiver of any other breach, or of a subsequent breach of the same or any other
term, covenant, or condition herein contained. All rights, powers, options, or
remedies afforded to the Company, the Owners or the Acquirer either hereunder or
by law shall be cumulative and not alternative, and the exercise of one right,
power, option, or remedy shall not bar other rights, powers, options, or
remedies allowed herein or by law, unless expressly provided to the contrary
herein.
7.3 Exhibits. All exhibits referred to in this Agreement and attached
hereto are hereby incorporated in this Agreement by reference.
7.4 Successors and Assigns. This Agreement may not be assigned by any
party without the prior approval of the other parties hereto, except that the
Acquirer may assign its rights and obligations to an affiliate. This Agreement
shall be binding upon, and inure to the benefit of, the Owners, the Acquirer,
and their respective legal representatives, successors, and permitted assigns.
7.5 Article Headings. Article headings and article and section numbers are
inserted herein only as a matter of convenience and in no way define, limit, or
prescribe the scope or intent of this Agreement or any part hereof and shall not
be considered in interpreting or construing this Agreement.
7.6 Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of Delaware, without regard to conflicts
of laws principles.
7.7 Counterparts. This Agreement may be executed in any number of
counterparts and by any party hereto on a separate counterpart, each of which
when so executed and delivered shall be deemed an original and all of which
taken together shall constitute but one and the same instrument.
7.8 Survival. All representations and warranties contained in this
Agreement, and all covenants and agreements contained in the Agreement which
contemplate performance after the Closing Date and the obligations of the
parties not fully performed at the Closing (including, without limitation, those
covenants and agreements contained in Sections 1.6, 3.2, 3.3, 3.4, 3.5, 4.1,
4.2, 6.4, and 7.14 hereof) shall survive the Closing.
7.9 Further Acts. In addition to the acts, instruments and agreements
recited herein and contemplated to be performed, executed and delivered by the
Acquirer, the Company and the Owners, the Acquirer, the Company and Owners shall
perform, execute, and deliver or cause to be performed, executed, and delivered
at the Closing or after the Closing, any and all further acts, instruments, and
agreements and provide such further assurances as the other parties may
reasonably require to consummate the transaction contemplated hereunder.
7.10 Severability. In case any one or more of the provisions contained in
this Agreement shall for any reason be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provision hereof, and this Agreement shall be
construed as if such invalid, illegal, or unenforceable provision had never been
contained herein.
7.11 Equitable Remedies. Each Owner agrees that irreparable damage would
occur to the Acquirer in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the Acquirer shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement by such Owner
and to enforce specifically the terms and provisions hereof in any federal or
state court located in Tennessee (as to which the parties agree to submit to
jurisdiction for the purposes of such action), this being in addition to any
other remedy to which the Acquirer is entitled under this Agreement or otherwise
at law or in equity.
7.12 Time of the Essence. TIME IS OF THE ESSENCE with respect to all
obligations of the parties under this Agreement.
7.13 Attorneys' Fees. Should a party employ an attorney or attorneys to
enforce any of the provisions hereof or to protect its interest in any manner
arising under this Agreement, or to recover damages for breach of this
Agreement, any non-prevailing party in any action pursued in a court of
competent jurisdiction (the finality of which is not legally contested) shall
pay to the prevailing party all reasonable costs, damages, and expenses,
including reasonable attorneys' fees, expended or incurred in connection
therewith.
7.14 Confidentiality. Each Owner acknowledges that the matters relating to
the REIT, the Public Offering, this Agreement, and the other documents, terms,
conditions and information related thereto (collectively, the "Information") are
confidential in nature. Therefore, each Owner covenants and agrees to keep the
Information confidential and will not (except as required by applicable law,
regulation or legal process including applicable securities laws), without the
Acquirer's prior written consent, disclose any Information in any manner
whatsoever; provided, however, that the Information may be revealed only to the
Owners' key employees, legal counsel and financial advisors and to the Property
Lender, each of whom shall be informed of the confidential nature of the
Information and shall agree to act in accordance with the terms of this
Section 7.14. In the event that the Owner or its key employees, legal counsel or
financial advisors or the Property Lender (collectively, the "Information
Group") are requested pursuant to, or required by, applicable law (other than in
connection with the Public Offering), regulation or legal process to disclose
any of the Information, the applicable member of the Information Group will
notify the Acquirer promptly so that it may seek a protective order or other
appropriate remedy or, in its sole discretion, waive compliance with the terms
of this Section 7.14. In the event that no such protective order or other remedy
is obtained, or that the Acquirer waives compliance with the terms of this
Section 7.14, the applicable member of the Information Group may furnish only
that portion of the Information which it is advised by counsel is legally
required and will exercise all reasonable efforts to obtain reliable assurance
that confidential treatment will be accorded the Information. Each Owner
acknowledges that remedies at law may be inadequate to protect the Acquirer or
the REIT against any actual or threatened breach of this Section 7.14, and,
without prejudice to any other rights and remedies otherwise available, the
Owner agrees to the granting of injunctive relief in favor of the REIT and/or
the Acquirer without proof of actual damages.
[SIGNATURES APPEAR ON FOLLOWING PAGES.]
IN WITNESS WHEREOF, this Agreement has been entered into effective as of
the 20th day of September, 2004.
OWNERS:
STUDENT MANAGEMENT ASSOCIATES, LLC
By: Xxxxx & X'Xxxx, Inc., a Tennessee corporation
Its: Managing Member
By: /s/ Xxxx X. Xxxxx
----------------------------
Xxxx X. Xxxxx, President
XXXXX & O'HARA, INC.
By: /s/ Xxxx X. Xxxxx
----------------------------
Xxxx X. Xxxxx, President
/s/ Xxxx X. Xxxxx
--------------------------------
XXXX X. XXXXX
/s/ Xxxxx X. Xxxxxxxx
--------------------------------
XXXXX X. XXXXXXXX
DESIGNEES:
/s/ Xxxxxx X. Xxxxxx
--------------------------------
XXXXXX X. XXXXXX
/s/ Xxxxxxx X. Xxxxxx
--------------------------------
XXXXXXX X. XXXXXX
/s/ Xxxxxxx X. Xxxxx
--------------------------------
XXXXXXX X. XXXXX
/s/ Xxxxxxx X. Xxxxxx
--------------------------------
XXXXXXX X. XXXXXX
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
COMPANY:
C STATION, L.L.C.
By: /s/ Xxxx X. Xxxxx
--------------------------------
Name: Xxxx X. Xxxxx
Title: President and Chief Executive Officer
ACQUIRER:
EDR C STATION, LLC
By: /s/ Xxxx X. Xxxxx
--------------------------------
Name: Xxxx X. Xxxxx
Title: President and Chief Executive Officer
Education Realty Operating Partnership, LP joins in the execution of this
Agreement for purposes of Section 3.2 of this Agreement.
EDUCATION REALTY OPERATING
PARTNERSHIP, LP
By: Education Realty OP GP, Inc., its general partner
By: /s/ Xxxx X. Xxxxx
--------------------------------
Xxxx Xxxxx, President
SCHEDULE I
OWNERS OF C STATION, L.L.C.
I-1
EXHIBIT A
Certificate of Merger
A-1
EXHIBIT B
Disclosure Schedule
B-1
EXHIBIT C
Partnership Agreement
C-1
