EXHIBIT 11
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EXECUTION COPY
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AGREEMENT AND PLAN OF MERGER
by and among
BERKSHIRE REALTY HOLDINGS, L.P.,
BRI ACQUISITION SUB, LP,
BERKSHIRE APARTMENTS, INC.
and
BRI OP LIMITED PARTNERSHIP
__________________
April 13, 1999
__________________
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TABLE OF CONTENTS
Page
ARTICLE 1THE MERGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.1 The Partnership Merger . . . . . . . . . . . . . 2
Section 1.2 Closing; Effective Time . . . . . . . . . . . . . 2
Section 1.3 Certificate and Agreement of Limited
Partnership; Officers . . . . . . . . . . . . . . . . 2
Section 1.4 Conversion of Seller OP Units . . . . . . . . . . 3
Section 1.5 Conversion of Units Owned by Seller General
Partner . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.6 Parent and Seller-Owned Interests . . . . . . . . 4
Section 1.7 Conversion of Interests in Buyer Operating
Partnership . . . . . . . . . . . . . . . . . . . . . 4
Section 1.8 Cancellation and Retirement of Seller OP
Units . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.9 Interest Elections . . . . . . . . . . . . . . . 4
Section 1.10 Payment for Seller OP Units . . . . . . . . . . . 5
Section 1.11 Further Assurances . . . . . . . . . . . . . . . 6
ARTICLE 2REPRESENTATIONS AND WARRANTIESOF SELLER GENERAL PARTNER AND
THE SELLER PARTNERSHIP . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.1 Organization, Standing and Power . . . . . . . . 6
Section 2.2 Authority; Noncontravention; Consents . . . . . . 7
Section 2.3 Information Supplied . . . . . . . . . . . . . . 8
ARTICLE 3REPRESENTATIONS AND WARRANTIESOF PARENT AND BUYER OPERATING
PARTNERSHIP . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 3.1 Organization, Standing and Power . . . . . . . . 8
Section 3.2 Authority; Noncontravention; Consents. . . . . . 9
Section 3.3 Information Supplied . . . . . . . . . . . . . . 10
ARTICLE 4COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 4.1 Reasonable Best Efforts; Additional Actions . . . 11
Section 4.2 Notification of Certain Matters . . . . . . . . . 11
Section 4.3 Consent Solicitation Statement; Securities
Filings . . . . . . . . . . . . . . . . . . . . . . . 11
Page
ARTICLE 5
CONDITIONS TO CONSUMMATION OF THE PARTNERSHIP MERGER . . . . . . . 12
Section 5.1 Conditions to Each Party's Obligations to
Effect the
Partnership Merger. . . . . . . . . . . . . . . 12
Section 5.2 Conditions to Seller General Partner's and
the Seller
Partnership's Obligations to Effect the Partnership
Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5.3 Conditions to Parent's and Buyer Operating
Partnership's
Obligations to Effect the Partnership . . . . . 14
ARTICLE 6TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 6.1 Termination . . . . . . . . . . . . . . . . . . . 15
Section 6.2 Procedure for and Effect of Termination . . . . . 15
ARTICLE 7MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 7.1 Amendment and Modification . . . . . . . . . . . 15
Section 7.2 Waiver of Compliance; Consents . . . . . . . . . 15
Section 7.3 Survival . . . . . . . . . . . . . . . . . . . . 15
Section 7.4 Notices . . . . . . . . . . . . . . . . . . . . . 15
Section 7.5 Assignment . . . . . . . . . . . . . . . . . . . 17
Section 7.6 GOVERNING LAW . . . . . . . . . . . . . . . . . . 17
Section 7.7 Counterparts . . . . . . . . . . . . . . . . . . 17
Section 7.8 Enforcement . . . . . . . . . . . . . . . . . . . 18
Section 7.9 Interpretation . . . . . . . . . . . . . . . . . 18
Section 7.10 Entire Agreement . . . . . . . . . . . . . . . . 18
Section 7.11 No Third Party Beneficiaries . . . . . . . . . . 18
Section 7.12 Severability . . . . . . . . . . . . . . . . . . 18
Section 7.13 Tax Election . . . . . . . . . . . . . . . . . . 18
EXHIBITS
Exhibit A Partnership Agreement
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of April 13, 1999,
by and among BERKSHIRE REALTY HOLDINGS, L.P., a Delaware limited partnership
("Parent"), BRI ACQUISITION SUB, LP, a Delaware limited partnership ("Buyer
Operating Partnership"), BERKSHIRE APARTMENTS, INC., a Delaware corporation
("Seller General Partner"), and BRI OP LIMITED PARTNERSHIP, a Delaware
limited partnership (the "Seller Partnership").
WHEREAS, the respective Boards of Directors (or
comparable body or entity) of Parent, BRI Acquisition, LLC ("Buyer") and
Berkshire Realty Company, Inc., a Delaware corporation (the "Seller"), have
approved the acquisition of the Seller and its assets (including, without
limitation, the Seller's direct and indirect interest in the Seller
Partnership) by Parent on the terms and subject to the conditions set forth
in the Agreement and Plan of Merger, dated as of April 13, 1999 (the "Merger
Agreement"), by and among Parent, Buyer and the Seller;
WHEREAS, it is proposed that, immediately prior to the
merger of the Buyer and Seller as contemplated by the Merger Agreement (the
"Merger"), Buyer Operating Partnership will merge with and into the Seller
Partnership (the "Partnership Merger") on the terms and subject to the
conditions of this Agreement;
WHEREAS, the Board of Directors of Seller General
Partner, in light of and subject to the terms and conditions set forth
herein, (i) approved this Agreement and (ii) resolved to recommend that the
holders of Seller OP Units adopt this Agreement and approve the Partnership
Merger;
WHEREAS, Parent, Buyer Operating Partnership, Seller
General Partner and the Seller Partnership desire to make certain
representations, warranties, covenants and agreements in connection with the
Partnership Merger and also to prescribe various conditions thereto; and
WHEREAS, capitalized terms used herein and not otherwise
defined have the respective meanings given them in the Merger Agreement.
NOW THEREFORE, in consideration of the representations,
warranties, covenants and agreements contained herein, and intending to be
legally bound hereby, the parties hereto agree as follows:
ARTICLE 1
THE MERGER
Section 1.1 The Partnership Merger. Upon the terms and
subject to the conditions of this Agreement, at the Effective Time (as
defined in Section 1.2) and in accordance with the Revised Uniform Limited
Partnership Act of the State of Delaware (the "DRULPA"), Buyer Operating
Partnership shall be merged with and into the Seller Partnership, with the
Seller Partnership as the surviving partnership in the Partnership Merger
(the "Surviving Operating Partnership"). At the Effective Time, the separate
existence of Buyer Operating Partnership shall cease and the other effects of
the Partnership Merger shall be as set forth in Section 17-211 of the DRULPA.
Section 1.2 Closing; Effective Time. Provided that the
conditions set forth in Article 5 have been satisfied (or waived by the
appropriate party), the closing of the Partnership Merger (the "Closing")
shall take place at the place of the closing of the Merger set forth in
Section 1.2(a) of the Merger Agreement, on the Closing Date immediately prior
to the closing of the Merger, or at such other place, at such other time or
on such other date as the parties hereto may mutually agree. At the Closing,
the parties hereto shall cause a certificate of merger (the "Certificate of
Merger") to be executed and filed with the Secretary of State of the State of
Delaware in accordance with the DRULPA. The Partnership Merger shall become
effective as of the date and time of such filing, or such other time within
24 hours after such filing as the parties hereto shall agree to be set forth
in the Certificate of Merger (the "Effective Time"), which, in either case,
shall be immediately prior to the effective time of the Merger. If the
closing date of the Merger has been extended as contemplated under Section
1.2(b) of the Merger Agreement, then for purposes of the conditions set forth
in Section 5.3 hereof, all references in the lettered subsections thereof to
the term "Closing Date" shall be deemed to mean the Satisfaction Date, and
the certificates and other documents to be delivered by the parties pursuant
to Section 5.3 hereof shall be delivered on and as of the Satisfaction Date.
The parties hereto agree that none of the conditions set forth in Section 5.3
shall be required to be satisfied at any time after the Satisfaction Date.
Section 1.3 Certificate and Agreement of Limited
Partnership; Officers.
(a) At the Effective Time, and without any further
action on the part of Buyer Operating Partnership or the Seller Partnership,
the agreement of limited partnership and the certificate of limited
partnership of the Seller Partnership, as in effect immediately prior to the
Effective Time, shall become, from and after the Effective Time, the
agreement of limited partnership and the certificate of limited partnership
of the Surviving Operating Partnership, until thereafter amended as provided
therein and under applicable law.
(b) The officers of the Seller Partnership
immediately prior to the Effective Time shall become, from and after the
Effective Time, the officers of the Surviving Operating Partnership, until
their respective successors are duly elected or appointed and shall qualify
or their earlier resignation or removal.
Section 1.4 Conversion of Seller OP Units. The
Seller OP Units issued and outstanding immediately prior to the Effective
Time (other than Seller OP Units owned by Seller General Partner, which shall
be treated as set forth in Section 1.5, and other than Seller OP Units to be
canceled in accordance with Section 1.6) shall, at the Effective Time, be
converted into the following (the consideration set forth in clauses (a), (b)
and (c) below being collectively referred to as the "Merger Consideration"):
(a) for each Seller OP Unit with respect
to which an election to receive a Class A Preferred Unit (as defined
below) has been effectively made pursuant to Section 1.9 and not
revoked or lost ("Class A Electing Units"), the right to receive one
fully paid and nonassessable "Class A Preferred Unit" (each, a
"Class A Preferred Unit") as defined in the partnership agreement of
Parent attached hereto as Exhibit A (the "Partnership Agreement");
(b) for each Seller OP Unit with respect
to which an election to receive a Class B Unit (as defined below) has
been effectively made pursuant to Section 1.9 and not revoked or lost
("Class B Electing Units"), the right to receive one fully paid and
nonassessable "Class B Unit" as defined in the Partnership Agreement
(each, a "Class B Unit"); and
(c) for each Seller OP Unit, other than
Class A Electing Units and Class B Electing Units, the right to
receive in cash, without interest, an amount equal to the Common
Merger Consideration (the "Cash Election Price").
Notwithstanding the foregoing, if between the date of
this Agreement and the Effective Time the outstanding Seller OP Units,
Class A Preferred Units (if any) or Class B Units (if any) shall have been
changed into a different number of units or a different class by reason of
any distribution, dividend, subdivision, reclassification, recapitalization,
split, combination or exchange of Seller OP Units, Class A Preferred Units
(if any) or Class B Units (if any), the Merger Consideration shall be
correspondingly adjusted to reflect such distribution, dividend, subdivision,
reclassification, recapitalization, split, combination or exchange.
Section 1.5 Conversion of Units Owned by Seller General
Partner. The Seller OP Units that are owned by Seller General Partner
immediately prior to the Effective Time (collectively, the "Seller GP
Interest") shall, at the Effective Time, by virtue of the Partnership Merger
and without any action on the part of Seller General Partner, be converted
into a 1% general partnership interest in the Surviving Operating
Partnership.
Section 1.6 Parent and Seller-Owned Interests. Each
Seller OP Unit that is owned by Parent or the Seller immediately prior to the
Effective Time shall, at the Effective Time, by virtue of the Partnership
Merger and without any action on the part of Parent or the Seller,
automatically be canceled and retired and cease to exist, and no
consideration shall be delivered in exchange therefor.
Section 1.7 Conversion of Interests in Buyer Operating
Partnership. The aggregate limited partnership interests in Buyer
Operating Partnership issued and outstanding immediately prior to the
Effective Time shall, at the Effective Time, by virtue of the Partnership
Merger and without any action on the part of Parent, be converted into a 99%
limited partnership interest in the Surviving Operating Partnership. The
aggregate general partnership interests in Buyer Operating Partnership issued
and outstanding immediately prior to the Effective Time shall, at the
Effective Time, by virtue of the Partnership Merger and without any action on
the part of Buyer, automatically be canceled and retired and cease to exist,
and no consideration shall be delivered in exchange therefor.
Section 1.8 Cancellation and Retirement of Seller OP
Units. Each Seller OP Unit converted into the right to receive the Merger
Consideration pursuant to Section 1.4 shall no longer be outstanding and
shall automatically be canceled and retired and shall cease to exist, and
each holder of a Seller OP Unit shall cease to have any rights with respect
thereto, except for the right to receive the Merger Consideration, if any,
applicable thereto.
Section 1.9 Interest Elections.
(a) Subject to Section 1.9(e), each holder of a
Seller OP Unit shall be entitled, with respect to all, but not less than all,
of such holder's Seller OP Units, to make an unconditional election, on or
prior to the Election Date (as defined in Section 1.9(b)), to receive
(i) Class A Preferred Units or Class B Units (a "Non-Cash Election") or
(ii) the Cash Election Price (a "Cash Election"), on the basis hereinafter
set forth.
(b) Buyer Operating Partnership shall prepare,
and the Seller Partnership shall mail pursuant to Section 4.3(a), a form of
election, which form shall be subject to the reasonable approval of Seller
General Partner (the "Form of Election"). The Form of Election shall be used
by each holder of a Seller OP Unit to designate such holder's election to
exchange all, but not less than all, of the Seller OP Units held by such
holder into either Class A Preferred Units, Class B Units or the Cash
Election Price. Any such holder's election to receive Class A Preferred
Units, Class B Units or the Cash Election Price shall be deemed to have been
properly made only if Parent shall have received at its principal executive
office, not later than 5:00 p.m., New York City time on the date that is five
business days before the scheduled date of the Seller Shareholders Meeting
(the "Election Date"), a Form of Election specifying whether such holder
elects to receive Class A Preferred Units, Class B Units or the Cash
Election Price and otherwise properly completed and signed. The Form of
Election shall state therein the date that constitutes the Election Date.
(c) A Form of Election may be revoked by any
holder of a Seller OP Unit only by written notice received by Parent prior to
5:00 p.m., New York City time, on the Election Date. In addition, all Forms
of Election shall automatically be revoked if the Partnership Merger has been
abandoned.
(d) The reasonable determination of Parent
shall be binding as to whether or not elections to receive Class A Preferred
Units, Class B Units or the Cash Election Price have been properly made or
revoked pursuant to this Section 1.9 and when elections and revocations were
received by it. If Parent determines that any election to receive Class A
Preferred Units, Class B Units or the Cash Election Price was not properly
made, the Seller OP Units with respect to which such election was not
properly made shall be treated by Parent as Seller OP Units for which a Cash
Election was made, and such Seller OP Units shall be converted in accordance
with Section 1.4(c). Parent may, with the agreement of Seller General
Partner, make such rules as are consistent with this Section 1.9 for the
implementation of the elections provided for herein as shall be necessary or
desirable fully to effect such elections.
(e) Parent reserves the right to require any
holder of Seller OP Units, as a condition to making a Non-Cash Election with
respect to such holder's Seller OP Units, to (i) represent to Parent that
such holder is an "Accredited Investor" (as such term is defined under Rule
501 promulgated under the Securities Act) and (ii) agree to abide by the
terms of the Partnership Agreement and to become a party thereto.
Section 1.10 Payment for Seller OP Units.
(a) Payment. Promptly after the Effective
Time, Parent shall pay the Merger Consideration to which holders of Seller OP
Units shall be entitled at the Effective Time pursuant to Section 1.4(c).
Parent shall be entitled to deduct and withhold, from the consideration
otherwise payable pursuant to Section 1.4(c) to any former holder of
Seller OP Units, such amounts as Parent is required to deduct and withhold
with respect to the making of such payment under the Code or any provision of
state, local or foreign tax law. To the extent that amounts are so withheld
by Parent, such withheld amounts shall be treated for all purposes of this
Agreement as having been paid to the former holder of Seller OP Units in
respect of which such deduction and withholding was made by Parent.
(b) No Further Ownership Rights in Seller OP
Units. The Merger Consideration delivered in accordance with the terms of
Article 1 shall be deemed to have been issued (or paid, as applicable) in
full satisfaction of all rights pertaining to the Seller OP Units.
Section 1.11 Further Assurances. If, at any time after
the Effective Time, the Surviving Operating Partnership shall determine or be
advised that any deeds, bills of sale, assignments, assurances or any other
actions or things are necessary or desirable to vest, perfect or confirm of
record or otherwise in the Surviving Operating Partnership the right, title
or interest in, to or under any of the rights, properties or assets of the
Seller Partnership acquired or to be acquired by the Surviving Operating
Partnership as a result of, or in connection with, the Partnership Merger or
otherwise to carry out this Agreement, the Surviving Operating Partnership
shall be authorized to execute and deliver, in the name and on behalf of each
of Buyer Operating Partnership and the Seller Partnership or otherwise, all
such deeds, bills of sale, assignments and assurances and to take and do, in
the name and on behalf of each of Buyer Operating Partnership and the Seller
Partnership or otherwise, all such other actions and things as may be
necessary or desirable to vest, perfect or confirm any and all right, title
and interest in, to and under such rights, properties or assets in the
Surviving Operating Partnership or otherwise to carry out this Agreement.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
OF SELLER GENERAL PARTNER AND THE SELLER PARTNERSHIP
Each of Seller General Partner and the Seller Partnership
represents and warrants to Parent and Buyer Operating Partnership as follows:
Section 2.1 Organization, Standing and Power. Each of
Seller General Partner and Seller Partnership is duly organized and validly
existing under the Laws of Delaware. Each of Seller General Partner and
Seller Partnership has the requisite corporate or limited partnership power
and authority to carry on its business as now being conducted. Each of Seller
General Partner and Seller Partnership is duly qualified or licensed to do
business as a foreign corporation or limited partnership and is in good
standing in each jurisdiction in which the nature of its business or the
ownership or leasing of its properties makes such qualification or licensing
necessary, other than in such jurisdictions where the failure to be so
qualified or licensed, individually or in the aggregate, would not have a
Seller Material Adverse Effect. Each of Seller General Partner and Seller
Partnership has delivered to Parent complete and correct copies of its
Certificate of Incorporation and By-laws or similar organizational documents,
in each case, as amended to the date of this Agreement.
Section 2.2 Authority; Noncontravention; Consents.
(a) Each of Seller General Partner and Seller
Partnership has the requisite corporate or limited partnership power and
authority to enter into this Agreement and, subject to the Seller Partner
Approval, to consummate the transactions contemplated by this Agreement to
which it is a party. The execution and delivery of this Agreement by Seller
General Partner and Seller Partnership and the consummation by Seller General
Partner and Seller Partnership of the transactions contemplated by this
Agreement to which Seller General Partner and/or Seller Partnership is a
party have been duly authorized by all necessary corporate or limited
partnership action on the part of Seller General Partner and Seller
Partnership, except for and subject to the Seller Partner Approval. This
Agreement has been duly executed and delivered by Seller General Partner and
Seller Partnership and constitutes a valid and binding obligation of each of
Seller General Partner and Seller Partnership, enforceable against each of
Seller General Partner and Seller Partnership in accordance with and subject
to its terms, subject to applicable bankruptcy, insolvency, moratorium or
other similar Laws relating to creditors' rights and general principles of
equity.
(b) The execution and delivery of this
Agreement by each of Seller General Partner and Seller Partnership does not,
and the consummation of the transactions contemplated by this Agreement to
which it is a party and compliance by it with the provisions of this
Agreement will not, require any consent, approval or notice under, or
conflict with, or result in any violation of, or default (with or without
notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation or to loss of a
benefit under, or result in the creation of any Lien upon any of the
properties or assets of Seller General Partner, Seller Partnership or any of
their Subsidiaries under, (i) the Certificate of Incorporation or the By-laws
or the comparable certificate of incorporation or organizational documents or
partnership or similar agreement (as the case may be) of Seller General
Partner, Seller Partnership or any of their Subsidiaries, each as amended or
supplemented to the date hereof, (ii) any loan or credit agreement, note,
bond, mortgage, indenture, reciprocal easement agreement, lease, joint
venture agreement, development agreement, benefit plan or other agreement,
instrument, permit, concession, franchise or license applicable to Seller
General Partner, Seller Partnership or any of their Subsidiaries or their
respective properties or assets or (iii) subject to the governmental filings
and other matters referred to in the following sentence, any judgment, order,
decree, statute, law, ordinance, rule or regulation (collectively, "Laws")
applicable to Seller General Partner, Seller Partnership or any of their
Subsidiaries, or their respective properties or assets, other than, in the
case of clause (ii) (other than such items relating to the incurrence of
indebtedness) or (iii), any such conflicts, violations, defaults, rights,
loss or Liens that individually or in the aggregate would not reasonably be
expected to (x) have a Seller Material Adverse Effect or (y) prevent or delay
beyond December 31, 1999 the consummation of the transactions contemplated by
this Agreement. No consent, approval, order or authorization of, or
registration, declaration or filing with, any federal, state or local
government or any court, administrative or regulatory agency or commission or
other governmental authority or agency, domestic or foreign (a "Governmental
Entity"), is required by or with respect to Seller General Partner, Seller
Partnership or any of their Subsidiaries in connection with the execution and
delivery of this Agreement or the consummation by Seller General Partner or
Seller Partnership of the transactions contemplated by this Agreement, except
for (i) the filing of the Certificate of Merger with the Secretary of State
of the State of Delaware, (ii) any filings required under the ▇▇▇▇-▇▇▇▇▇-
▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the "HSR Act"), (iii)
the filing of a Form D with the SEC and (iv) such other consents, approvals,
orders, authorizations, registrations, declarations and filings (A) as are
set forth in Schedule 2.5 to the Seller Disclosure Letter, (B) as may be
required under (y) federal, state or local environmental Laws or (z) the
"blue sky" laws of various states, to the extent applicable or (C) which, if
not obtained or made, would not prevent or delay beyond December 31, 1999 the
consummation of any of the transactions contemplated by this Agreement or
otherwise prevent or delay beyond December 31, 1999 Seller from performing
its obligations under this Agreement in any material respect or have,
individually or in the aggregate, a Seller Material Adverse Effect.
Section 2.3 Information Supplied. None of the
information supplied by Seller General Partner or the Seller Partnership for
inclusion or incorporation by reference in the Consent Solicitation Statement
(as defined in Section 4.3) or the other Solicitation Documents (as defined
Section 4.3) shall, at the time the Solicitation Documents are mailed to the
holders of Seller OP Units and at the Closing Date, contain any untrue
statement of material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
OF PARENT AND BUYER OPERATING PARTNERSHIP
Each of Parent and Buyer Operating Partnership represents
and warrants to Seller General Partner and the Seller Partnership as follows:
Section 3.1 Organization, Standing and Power.
(a) Parent is a limited partnership duly
organized and validly existing under the Laws of Delaware and has the
requisite power and authority to carry on its business as now being
conducted. Parent is duly qualified or licensed to do business as a foreign
limited partnership and is in good standing in each jurisdiction in which the
nature of its business or the ownership or leasing of its properties makes
such qualification or licensing necessary, other than in such jurisdictions
where the failure to be so qualified or licensed, individually or in the
aggregate, would not have a material adverse effect on the ability of Parent
to consummate the transactions contemplated by this Agreement. Parent has
delivered to Seller complete and correct copies of its organizational
documents as amended or supplemented to the date of this Agreement. Attached
hereto as Exhibit A is a complete and correct copy of the Partnership
Agreement. The Partnership Agreement has not been amended subsequent to the
date hereof, except for such amendments as are permitted under Section 4.3(c)
of the Merger Agreement.
(b) Buyer Operating Partnership is a limited
partnership duly organized and validly existing under the Laws of Delaware
and has the requisite power and authority to carry on its business as now
being conducted. Buyer Operating Partnership is duly qualified or licensed
to do business as a foreign limited partnership and is in good standing in
each jurisdiction in which the nature of its business or the ownership or
leasing of its properties makes such qualifications or licensing necessary,
other than in such jurisdictions where the failure to be so qualified or
licensed, individually or in the aggregate, would not have a material adverse
effect on the ability of Buyer Operating Partnership to consummate the
transactions contemplated by this Agreement. Buyer Operating Partnership has
delivered to Seller complete and correct copies of its organizational
documents as amended or supplemented to the date of this Agreement.
(c) Parent and Buyer Operating Partnership are
newly formed and, except for activities incident to the acquisition of Seller
Partnership, neither Parent nor Buyer Operating Partnership has (i) engaged
in any business activities of any type or kind whatsoever or (ii) acquired
any property of any type or kind whatsoever.
Section 3.2 Authority; Noncontravention; Consents.
(a) Each of Parent and Buyer Operating
Partnership has the requisite power and authority to enter into this
Agreement and to consummate the transactions contemplated by this Agreement
to which it is a party. The execution and delivery of this Agreement by
Parent and Buyer Operating Partnership and the consummation by Parent and
Buyer Operating Partnership of the transactions contemplated by this
Agreement to which Parent and/or Buyer Operating Partnership is a party have
been duly authorized by all necessary partnership action on the part of
Parent and Buyer Operating Partnership (including, without limitation, the
issuance of the Class A Preferred Units and the Class B Units in the
Partnership Merger). This Agreement has been duly executed and delivered by
Parent and Buyer Operating Partnership and constitutes a valid and binding
obligation of each of Parent and Buyer Operating Partnership, enforceable
against each of Parent and Buyer Operating Partnership in accordance with and
subject to its terms, subject to applicable bankruptcy, insolvency,
moratorium or other similar Laws relating to creditors' rights and general
principles of equity.
(b) The execution and delivery of this
Agreement by each of Parent and Buyer Operating Partnership does not, and the
consummation of the transactions contemplated by this Agreement to which
Parent and/or Buyer is a party and compliance by each of Parent and Buyer
Operating Partnership with the provisions of this Agreement will not,
conflict with, or result in any violation of or default (with or without
notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any material obligation or to
loss of a material benefit under, or result in the creation of any Lien upon
any of the properties or assets of Parent or any of its Subsidiaries under,
(i) the organizational documents of Parent (including the Partnership
Agreement) or Buyer Operating Partnership or the comparable certificate of
incorporation or organizational documents or partnership or similar agreement
(as the case may be) of any other Subsidiary of the Parent, each as amended
or supplemented to the date of this Agreement, (ii) any loan or credit
agreement, note, bond, mortgage, indenture, reciprocal easement agreement,
lease or other agreement, instrument, permit, concession, franchise or
license applicable to Parent or any of its Subsidiaries or their respective
properties or assets or (iii) subject to the governmental filings and other
matters referred to in the following sentence, any Laws applicable to Parent
or any of its Subsidiaries or their respective properties or assets, other
than, in the case of clause (ii) or (iii), any such conflicts, violations,
defaults, rights, loss or Liens that individually or in the aggregate would
not reasonably be expected to (x) have a Parent Material Adverse Effect or
(y) prevent the consummation of the transactions contemplated by this
Agreement. No consent, approval, order or authorization of, or registration,
declaration or filing with, any Governmental Entity is required by or with
respect to Parent or any of its Subsidiaries in connection with the execution
and delivery of this Agreement by Parent or Buyer Operating Partnership or
the consummation by Parent or Buyer Operating Partnership of any of the
transactions contemplated by this Agreement, except for (i) the filing of the
Certificate of Merger with the Secretary of State of the State of Delaware,
(ii) such filings as may be required in connection with the payment of any
Transfer Taxes, (iii) any filings required under the HSR Act, (iv) the filing
of a Form D with the SEC and (v) such other consents, approvals, orders,
authorizations, registrations, declarations and filings (A) as may be
required under federal, state or local environmental Laws, (B) the "blue sky"
laws of various states, to the extent applicable, or (C) which, if not
obtained or made, would not prevent or delay beyond December 31, 1999 the
consummation of any of the transactions contemplated by this Agreement or
otherwise prevent Parent or Buyer Operating Partnership from performing its
obligations under this Agreement in any material respect or have,
individually or in the aggregate, a Parent Material Adverse Effect.
Section 3.3 Information Supplied. None of the
information supplied by Parent or Buyer Operating Partnership for inclusion
or incorporation by reference in the Consent Solicitation Statement or the
other Solicitation Documents shall, at the time the Solicitation Documents
are mailed to the holders of Seller OP Units and at the Closing Date, contain
any untrue statement of material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
ARTICLE 4
COVENANTS
Section 4.1 Reasonable Best Efforts; Additional
Actions. Upon the terms and subject to the conditions of this Agreement,
each of the parties hereto shall use all reasonable best efforts to take, or
cause to be taken, all actions, and to do or cause to be done, and to assist
and cooperate with the other parties in doing, all things necessary, proper
or advisable to consummate and make effective as promptly as practicable the
transactions contemplated by, and in connection with, this Agreement. In
connection with and without limiting the foregoing, Seller General Partner
shall take all necessary action to obtain the requisite consent of the
holders of Seller OP Units to adopt this Agreement and approve the
Partnership Merger prior to the closing of the Merger.
Section 4.2 Notification of Certain Matters. Each of
Seller General Partner and the Seller Partnership shall give notice to Parent
and Buyer Operating Partnership, and each of Parent and Buyer Operating
Partnership shall give notice to Seller General Partner and the Seller
Partnership, promptly upon becoming aware of (a) any occurrence, or failure
to occur, of any event, which occurrence or failure to occur has caused or
would reasonably be expected to cause any representation or warranty that is
qualified as to materiality in this Agreement to be untrue or inaccurate or
any representation or warranty that is not so qualified to be untrue or
inaccurate in any material respect at any time after the date hereof and
prior to the Closing Date and (b) any material failure on its part to comply
with or satisfy any covenant, condition or agreement to be complied with or
satisfied by it hereunder; provided that the delivery of any notice pursuant
to this Section 4.2 shall not limit or otherwise affect the remedies
available hereunder to the party receiving such notice.
Section 4.3 Consent Solicitation Statement; Securities
Filings.
(a) Seller Partnership and Parent shall jointly
and promptly prepare a Consent Solicitation Statement soliciting the written
consent of the holders of Seller OP Units to the adoption of this Agreement
and the approval of the Partnership Merger (the "Consent Solicitation
Statement"), which Consent Solicitation Statement shall contain a description
of the terms of the Class A Preferred Units and the Class B Units and the
recommendation of Seller General Partner's Board of Directors that the
holders of Seller OP Units consent to the adoption of this Agreement and the
approval of the Partnership Merger. The Consent Solicitation Statement shall
comply as to form in all material respects with the requirements of the
Securities Act and the rules and regulations thereunder applicable to an
offering of securities exempt from registration under the Securities Act
pursuant to Rule 506 thereunder. As soon as practicable following the mailing
of the Proxy Statement in connection with the Merger, Seller Partnership
shall mail the Consent Solicitation Statement, together with a form of
written consent, a Form of Election and any other documents relating thereto
(collectively, the "Solicitation Documents"), to the holders of Seller OP
Units. Seller Partnership and Parent shall consult and cooperate with each
other in the preparation of the Solicitation Documents. All mailings to the
holders of Seller OP Units in connection with the Partnership Merger,
including the Solicitation Documents, shall be subject to the prior review,
comment and approval of Parent (such approval not to be unreasonably withheld
or delayed). Parent shall take all actions required to be taken under any
applicable federal and state securities laws in connection with the issuance
of the Class A Preferred Units and the Class B Units in the Partnership
Merger pursuant to this Agreement, including but not limited to the filing
with the SEC of a "Notice of Sale of Securities Pursuant to Regulation D" on
Form D.
(b) Parent, on the one hand, and Seller
Partnership, on the other hand, shall each advise the other promptly if,
prior to the Closing Date, it obtains knowledge of any facts that would make
it necessary to amend any of the Solicitation Documents in order to render
the statements therein not false or misleading or to comply with applicable
law. Seller Partnership and Parent shall promptly amend or supplement any
information in such documents if and to the extent that such information has
become false or misleading, and Seller Partnership shall take all steps
necessary to disseminate the amended documents or supplements to the holders
of Seller OP Units, in each case, as and to the extent required by applicable
law.
ARTICLE 5
CONDITIONS TO CONSUMMATION OF THE PARTNERSHIP MERGER
Section 5.1 Conditions to Each Party's Obligations to
Effect the Partnership Merger. The respective obligations of each party
hereto to effect the Partnership Merger is subject to the satisfaction on or
prior to the Closing Date of each of the following conditions, any and all of
which may be waived in whole or in part by the parties hereto with respect to
such party's conditions, to the extent permitted by applicable law:
(a) Conditions to the Merger. All of the
conditions to the closing of the Merger shall have been satisfied or waived
in accordance with the terms of the Merger Agreement (other than those set
forth in Section 6.2(h), 6.2(i) or 6.3(f) of the Merger Agreement).
(b) Unitholders' Consent. The requisite
consent of the holders of the Seller OP Units to adopt this Agreement and
approve the Partnership Merger shall have been obtained; and
(c) No Injunctions or Restraints. No temporary
restraining order, preliminary or permanent injunction or other order issued
by any court of competent jurisdiction or other legal restraint or
prohibition preventing the consummation of the Partnership Merger or any of
the other transactions contemplated hereby shall be in effect.
(d) HSR Act. All applicable waiting periods
(and any extensions thereof) under the HSR Act shall have expired or
otherwise been terminated.
Section 5.2 Conditions to Seller General Partner's and
the Seller Partnership's Obligations to Effect the Partnership Merger. The
obligation of Seller General Partner and the Seller Partnership to effect the
Partnership Merger is also subject to the satisfaction (or waiver by Seller
General Partner and the Seller Partnership) on or prior to the Closing Date
of each of the following additional conditions:
(a) Accuracy of Representations and Warranties.
All representations and warranties made by each of Parent and Buyer Operating
Partnership herein shall be true and correct in all material respects (except
for representations having a materiality, Parent Material Adverse Effect or
Buyer Material Adverse Effect qualification, which shall be true and correct
in all respects) as of the date of the Agreement and as of the Closing Date
with the same force and effect as though such representations and warranties
had been made on and as of the Closing Date, except for representations and
warranties that are made as of a specified date or time, which shall be true
and correct in all material respects (except for representations having a
materiality, Parent Material Adverse Effect or Buyer Material Adverse Effect
qualification, which shall be true and correct in all respects) only as of
such specific date or time.
(b) Compliance with Covenants. Each of Parent
and Buyer Operating Partnership shall have performed in all material respects
all obligations and agreements, and complied in all material respects with
covenants, contained in this Agreement to be performed or complied with by it
prior to or as of the Closing Date.
(c) Officer's Certificate. Seller General
Partner and the Seller Partnership shall have received a certificate of
Parent, dated as of the Closing Date, signed by an executive officer of
Parent to evidence satisfaction of the conditions set forth in
Sections 5.2(a) and (b).
Section 5.3 Conditions to Parent's and Buyer Operating
Partnership's Obligations to Effect the Partnership. The obligation of
Parent and Buyer Operating Partnership to effect the Partnership Merger is
also subject to the satisfaction (or waiver by Parent and Buyer Operating
Partnership) at or prior to the Closing Date of each of the following
additional conditions:
(a) Accuracy of Representations and Warranties.
All representations and warranties made by each of Seller General Partner and
the Seller Partnership herein shall be true and correct in all material
respects (except for representations having a materiality or Seller Material
Adverse Effect qualification, all of which shall be true and correct in all
respects) as of the date of this Agreement and as of the Closing Date, with
the same force and effect as though such representations and warranties had
been made on and as of the Closing Date, except for representations and
warranties that are made as of a specified date or time, which shall be true
and correct in all material respects (except for representations having a
materiality or Seller Material Adverse Effect qualification, which shall be
correct in all respects) only as of such specific date or time.
(b) Compliance with Covenants. Each of Seller
General Partner and the Seller Partnership shall have performed in all
material respects all obligations and agreements, and complied in all
material respects with covenants, contained in this Agreement to be performed
or complied with by it prior to or as of the Closing Date.
(c) Officer's Certificate. Parent and Buyer
Operating Partnership shall have received a certificate of Seller General
Partner, dated as of the Closing Date, signed by an executive officer of
Seller General Partner to evidence satisfaction of the conditions set forth
in Sections 5.3(a) and (b).
Notwithstanding anything to the contrary in this
Agreement, none of the initiation, threat or existence of any legal action of
any kind with respect to this Agreement or the Merger Agreement or any
transaction contemplated hereby or thereby, including without limitation any
action initiated, threatened or maintained by any stockholder of the Seller
or any holders of Seller OP Units, whether alleging rights with respect to
Dissenting Shares, claims under any Federal or state securities law, contract
or tort claims, for breach of fiduciary duty or otherwise, will constitute a
failure of the conditions set forth in Sections 5.2(a), 5.2(b), 5.3(a) or
5.3(b) (and no such action shall cause an executive officer of Seller General
Partner or of Parent to be unable to deliver a certificate attesting to
compliance with such conditions) unless that action has resulted in the
granting of injunctive relief that prevents the consummation of the
Partnership Merger and the other transaction contemplated hereby or thereby,
and such injunctive relief has not been dissolved or vacated.
ARTICLE 6
TERMINATION
Section 6.1 Termination. This Agreement shall
terminate, without any further action on the part of the parties hereto, upon
the termination of the Merger Agreement in accordance with its terms. This
Agreement may be terminated and the transactions contemplated hereby may be
abandoned at any time prior to the Closing Date by the mutual written consent
of the parties hereto.
Section 6.2 Procedure for and Effect of Termination.
If this Agreement is terminated as provided herein, no party hereto shall
have any liability or further obligation to any other party under the terms
of this Agreement.
ARTICLE 7
MISCELLANEOUS
Section 7.1 Amendment and Modification. Subject to
applicable law, this Agreement may be amended, modified or supplemented only
by a written agreement signed by each of the parties hereto at any time prior
to the Closing Date with respect to any of the terms contained herein;
provided, however, that after this Agreement is adopted by the holders of
Seller OP Units, no such amendment shall be made which requires the approval
of such holders.
Section 7.2 Waiver of Compliance; Consents. Any
failure of Parent or Buyer Operating Partnership, on the one hand, or Seller
General Partner or the Seller Partnership, on the other hand, to comply with
any obligation, covenant, agreement or condition herein may, subject to
Section 7.1, be waived by Parent and Buyer Operating Partnership or Seller
General Partner and the Seller Partnership, respectively, only by a written
instrument signed by the party granting such waiver, but such waiver or
failure to insist upon strict compliance with such obligation, covenant,
agreement or condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure. Whenever this Agreement
requires or permits consent by or on behalf of any party hereto, such consent
shall be given in writing in a manner consistent with the requirements for a
waiver of compliance as set forth in this Section 7.2 and in Section 7.1.
Section 7.3 Survival. The respective representations
and warranties of Parent and Buyer Operating Partnership and Seller General
Partner and the Seller Partnership contained herein shall not survive the
Closing hereunder.
Section 7.4 Notices. All notices, requests, claims,
demands and other communications under this Agreement shall be in writing and
shall be delivered personally, sent by overnight courier (providing proof of
delivery) to the parties or sent by telecopy (providing confirmation of
transmission) at the following addresses or telecopy numbers (or at such
other address or telecopy number for a party as shall be specified by like
notice):
(a) if to Parent or Buyer Operating
Partnership, to:
Berkshire Realty Holdings, L.P.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to Seller General Partner or the Seller
Partnership, to:
Berkshire Realty Company, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇ and ▇▇▇▇ LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
All notices shall be deemed given only when actually received.
Section 7.5 Assignment. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, but
neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any of the parties hereto without the prior
written consent of the other parties.
Section 7.6 GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
DELAWARE, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE
PRINCIPLES OF CONFLICT OF LAWS THEREOF.
Section 7.7 Counterparts. This Agreement may be
executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
Section 7.8 Enforcement. The parties agree that
irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed by Seller General Partner and Seller
Partnership in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that Parent and Buyer Operating
Partnership shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement by Seller General Partner and Seller Partnership
and to enforce specifically the terms and provisions of this Agreement in any
federal court located in Delaware or in Chancery Court in Delaware, this
being in addition to any other remedy to which they are entitled at law or in
equity. The parties acknowledge that Seller General Partner and Seller
Partnership shall not be entitled to an injunction or injunctions to prevent
breaches of this Agreement by Parent or Buyer Operating Partnership or to
enforce specifically the terms and provisions of this Agreement and that
Seller General Partner's and Seller Partnership's sole and exclusive remedy
with respect to any such breach shall be the remedy set forth in Section 7.2
of the Merger Agreement. In addition, each of the parties hereto (a)
consents to submit itself (without making such submission exclusive) to the
personal jurisdiction of any federal court located in Delaware or Chancery
Court located in Delaware in the event any dispute arises out of this
Agreement or any of the transactions contemplated by this Agreement and (b)
agrees that it will not attempt to deny or defeat such personal jurisdiction
by motion or other request for leave from any such court.
Section 7.9 Interpretation. The article and
Section headings contained in this Agreement are solely for the purpose of
reference, are not part of the agreement of the parties and shall not in any
way affect the meaning or interpretation of this Agreement.
Section 7.10 Entire Agreement. The Merger Agreement
(including the schedules, exhibits, documents or instruments referred to
herein) and this Agreement together embody the entire agreement and
understanding of the parties hereto in respect of the subject matter hereof
and thereof and supersede all prior agreements and understandings, both
written and oral, among the parties, or between any of them, with respect to
the subject matter hereof and thereof.
Section 7.11 No Third Party Beneficiaries. This
Agreement is not intended to, and does not, create any rights or benefits of
any party other than the parties hereto.
Section 7.12 Severability. In the event that any one or
more of the provisions contained in this Agreement or in any other instrument
referred to herein, 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 of this Agreement or any other such
instrument.
Section 7.13 Tax Election. The parties hereby agree
that an election pursuant to Section 754 of the Internal Revenue Code shall
be made for the Seller Partnership and each partnership which is a subsidiary
of the Seller Partnership (or shall be in effect) with respect to any
transfers of interests in the Seller Partnership pursuant to the Merger and
the Partnership Merger.
[Signatures appear on next page]
IN WITNESS WHEREOF, the Parent, Buyer Operating Partnership,
Seller General Partner and the Seller Partnership have caused this Agreement
and Plan of Merger to be signed by a person duly authorized to do so as of
the date first above written.
BERKSHIRE REALTY HOLDINGS, L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Authorized Signatory
BRI ACQUISITION SUB, LP
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Authorized Signatory
BERKSHIRE APARTMENTS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
BRI OP LIMITED PARTNERSHIP
By: BERKSHIRE APARTMENTS, INC., its
general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Executive
Officer
