EXHIBIT 2.1
MASTER AGREEMENT
OF
MERGER AND ACQUISITION
by and among
Xxxxxx-Xxxxx Properties, Inc.,
Xxxxxx-Xxxxx Properties Limited Partnership,
Xxxx X. Xxxxxxxx,
Xxxxx X. Xxxxxxxx,
W. Xxxxxxx Xxxxxx,
Xxxxxxx X. Xxxxxxx,
Xxxxx X. Xxxx,
and the partnerships
and limited liability companies
listed herein
Dated September 22, 1997
IN MAKING AN INVESTMENT DECISION, INVESTORS MUST RELY ON THEIR OWN
EXAMINATION OF THE ISSUER AND THE TERMS OF THE OFFERING, INCLUDING THE MERITS
AND RISKS INVOLVED. THESE SECURITIES HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL OR
STATE SECURITIES COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING
AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF ANY
DOCUMENT USED IN CONNECTION WITH THE OFFERING AND ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND
RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND THE APPLICABLE STATE SECURITIES LAWS,
PURSUANT TO THE REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE
THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISK OF THIS INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME.
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS..........................................................1
ARTICLE II
THE TRANSACTIONS.....................................................5
2.1 General.................................................5
2.2 Exchange Option Agreement...............................5
2.3 Closing.................................................6
ARTICLE III
CONSIDERATION........................................................7
3.1 Contribution Price......................................7
3.2 Terms of Payment........................................8
3.3 Additional Closing Adjustments..........................8
3.4 Fluctuation............................................10
ARTICLE IV
COVENANTS AND AGREEMENTS............................................10
4.1 Operation of Business..................................10
4.2 No Brokers.............................................10
4.3 Board of Directors of BNP..............................11
4.4 Section 754 Elections..................................11
4.5 Termination of Contracts...............................11
4.6 Contributions of Assets................................12
4.7 Non-Compete Agreements.................................12
4.8 Future Development Rights..............................12
4.9 Excess Shares..........................................12
4.10 Assignment of Warranties...............................12
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF CONTRIBUTORS - GENERALLY..........13
5.1 Consents...............................................13
5.2 Disclosure.............................................13
5.3 Absence of Conflicts...................................13
5.4 Certification of Chrysson Financial Statements.........14
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF CONTRIBUTORS......................14
6.1 Power and Authority of Chrysson Partnerships...........14
6.2 Rent Roll and Leases...................................15
6.3 No Contracts...........................................15
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6.4 Liabilities; Indebtedness..............................15
6.5 Insurance..............................................16
6.6 Personal Property......................................16
6.7 Claims or Litigation...................................16
6.8 Hazardous Substances...................................16
6.9 Compliance with Laws...................................17
6.10 Employees..............................................17
6.11 Condemnation and Moratoria.............................17
6.12 Condition of Improvements..............................18
6.13 Taxes..................................................18
6.14 Management Agreements..................................18
6.15 Operating Agreements...................................18
6.16 Absence of Certain Changes.............................19
6.17 Tradename..............................................19
6.18 Title..................................................20
6.19 Certain Liens..........................................20
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF XXXXXX-XXXXX......................20
7.1 Organization and Authority.............................20
7.2 Binding Obligation.....................................20
7.3 Partnership Agreement..................................21
7.4 Disclosure.............................................21
7.5 Insurance..............................................21
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES OF BNP...............................21
8.1 Organization and Authority.............................21
8.2 Binding Obligations....................................21
8.3 Securities Filings.....................................22
8.4 REIT Status of BNP.....................................22
ARTICLE IX
CONDITIONS TO CLOSING AND DUE DILIGENCE INVESTIGATION...............22
9.1 Conditions to Closing of Initial Properties............22
9.2 Xxxxxx-Xxxxx Investigation/Due Diligence Period........24
9.3 Conditions to Closing of Planned Properties............26
9.4 Closing Documents......................................28
ARTICLE X
INDEMNITY...........................................................28
10.1 Representations and Warranties of each
of the Contributors....................................28
10.2 Scope of Contributors Indemnity........................29
10.3 Arbitration............................................29
10.4 Representations and Warranties of Xxxxxx-Xxxxx.........29
10.5 Notice to Indemnitors..................................30
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ARTICLE XI
MISCELLANEOUS......................................................30
11.1 Notices...............................................30
11.2 Counterparts..........................................31
11.3 Severability..........................................31
11.4 Assigns...............................................32
11.5 Public Announcement...................................32
11.6 Confidentiality.......................................32
11.7 Remedies..............................................32
11.8 Captions..............................................33
11.9 Exhibits and Schedules................................33
11.10 Merger Clause.........................................33
11.11 Amendments and Waiver.................................33
11.12 Agent of Chrysson Partnerships........................33
11.13 Governing Laws........................................33
LIST OF SCHEDULES AND EXHIBITS..............................................36
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MASTER AGREEMENT OF
MERGER AND ACQUISITION
This MASTER AGREEMENT OF MERGER AND ACQUISITION (the "Master
Agreement") is made as of the 22nd day of September, 1997, by and among
XXXXXX-XXXXX PROPERTIES, INC., a Maryland corporation ("BNP"), XXXXXX-XXXXX
PROPERTIES LIMITED PARTNERSHIP, a North Carolina limited partnership
("Xxxxxx-Xxxxx"), the limited partnerships and limited liability companies
listed on SCHEDULE 1 attached hereto (each a "Chrysson Partnership" and
collectively the "Chrysson Partnerships"), and the following individuals: Xxxx
X. Xxxxxxxx, Xxxxx X. Xxxxxxxx, W. Xxxxxxx Xxxxxx, Xxxxxxx X. Xxxxxxx and Xxxxx
X. Xxxx (each a "Contributor" and collectively the "Contributors").
WHEREAS, Xxxxxx-Xxxxx is a North Carolina limited partnership having
BNP as its sole general partner and BNP has elected to be qualified as a real
estate investment trust under the Code; and
WHEREAS, the Chrysson Partnerships own certain real properties in
Greensboro, Winston- Salem and Burlington, North Carolina;
WHEREAS, Xxxxxx-Xxxxx and the Contributors, each of whom has an
ownership interest in one or more of the Chrysson Partnerships, have entered
into an Exchange Option Agreement (as defined below), pursuant to which such
Contributors have irrevocably agreed to sell, transfer and assign their
interests in the Chrysson Partnerships as more particularly described therein to
Xxxxxx- Xxxxx;
WHEREAS, pursuant to the terms hereof and the terms of the Exchange
Option Agreement, Xxxxxx-Xxxxx and the Chrysson Partnerships desire to combine
their respective businesses subject to the terms, conditions, provisions and
limitations of this Master Agreement;
NOW, THEREFORE, in consideration of the premises herein contained, and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The following capitalized terms shall have the following meanings for
all purposes of this Master Agreement and such meanings are equally applicable
to the singular and plural forms of the terms defined. The terms "hereof",
"hereto", "herein", "hereunder" and comparable terms refer to the entire
agreement with respect to which such terms are used and not to any particular
section, subsection, paragraph or other subdivision thereof.
"ACTUAL KNOWLEDGE" for the purposes of this Master Agreement shall mean
information which is known to an individual or, as to any entity, to
the officers, general partners or managers of such entity without the
requirement of additional inquiry unless such persons are aware of
facts or circumstances which would lead reasonable persons to make or
conduct additional inquiry.
"AFFILIATE" means, as to any Person (as defined below), each of the
Persons (i) which directly or indirectly through one or more
intermediaries controls, or is controlled by, or is under common
control with such Person; or (ii) which beneficially owns or holds 10%
or more of any class of the outstanding voting stock (or in the case of
a Person which is not a corporation, 10% or more of the equity
interest) of such Person; or (iii) 10% or more of any class of the
outstanding voting stock (or in the case of a Person which is not a
corporation, 10% or more of the equity interest) of which is
beneficially owned or held by such Person. The term "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether by
ownership of voting stock, by contract, by close family relationships
(i.e., parent, spouse, child or sibling) or otherwise.
"AMEX" means the American Stock Exchange.
"XXXXXX-XXXXX PARTNERSHIP AGREEMENT" means the Agreement of Limited
Partnership of Xxxxxx-Xxxxx Properties Limited Partnership, as amended
through the date hereof, including the amendment to admit the
Contributors as partners therein.
"CHRYSSON FINANCIAL STATEMENTS" means the periodic income statement and
balance sheets provided to Xxxxxx-Xxxxx (including the schedules
attached thereto) for the Chrysson Partnerships, and specifically
excludes any forecasts and projections.
"CHRYSSON PARTIES" means collectively Contributors and the Chrysson
Partnerships, without duplication.
"CLOSING" means the Initial Closing or a Subsequent Closing, as
applicable.
"CLOSING DATE" means the Initial Closing Date or a Subsequent Closing
Date, as applicable.
"CODE" means the Internal Revenue Code of 1986, as amended.
"CONTRIBUTION PRICE" means the consideration to be paid by Xxxxxx-Xxxxx
to the Contributors for the Initial Properties and the Planned
Properties as set forth in Section 3.1(a) and 3.1(b), respectively.
"ENVIRONMENTAL LAW" means any and all federal, state and local laws,
regulations, ordinances and other requirements relating to pollution or
protection of the environment, including, without limitation, laws,
regulations and requirements relating to the ownership, possession,
storage and control of the Properties (as defined below) and to
emissions,
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discharges, releases or threatened releases of storm water, pollutants,
contaminants, toxic or hazardous substances, or solid or hazardous
wastes into the environment (including without limitation ambient air,
surface water, groundwater or land), or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of pollutants, contaminants, toxic or
hazardous substances, or solid or hazardous wastes. The Environmental
Laws include, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCHANGE OPTION AGREEMENT" means the agreement dated as of September
__, 1997 between Xxxxxx-Xxxxx, BNP and the Contributors pursuant to
which Units are to be exchanged for all of the ownership interests in
the Chrysson Partnerships.
"IMPROVEMENTS" means all buildings, structures, streets, furnishings,
parking lots, landscaping, walls, ponds, culverts, fixtures, utilities,
fences, driveways, loading docks, security systems and other physical
features constructed or assembled on, at, upon or beneath any of the
Properties (whether finished or unfinished).
"INDEBTEDNESS" means, without duplication, any obligations for borrowed
money and all obligations to trade creditors, whether heretofore, now
or hereafter owing, arising, due or payable to any person and howsoever
evidenced, created, incurred, acquired or owing, whether primary,
secondary, direct, contingent, fixed or otherwise and whether matured
or unmatured. Without in any way limiting the generality of the
foregoing, Indebtedness specifically includes the following: (a) all
obligations or liabilities of any person that are secured by any lien,
claim, encumbrance or security interest upon property; (b) all
obligations or liabilities created or arising under any capital lease
of real or personal property, or conditional sale or other title
retention agreement with respect to property, even though the rights
and remedies of the lessor, seller or lender thereunder are limited to
repossession of such property; (c) all unfunded pension fund, employee
medical or welfare obligations and liabilities; (d) deferred taxes; and
(e) all obligations under any indemnification agreements, guaranty
agreements, letters of credit or other documents creating such
contingent liabilities.
"INDEPENDENT DIRECTOR" shall have the meaning set forth in the charter
of BNP, as it may be amended from time to time.
"INITIAL CLOSING" means the closing and consummation of the
transactions contemplated by this Master Agreement relating to the
Initial Properties.
"INITIAL CLOSING DATE" means the date upon which all the conditions for
closing and consummation of the transactions contemplated by this
Master Agreement relating to the Initial Properties shall have been
satisfied, which date shall be no later than December 31, 1997;
provided, however, that if the Closing has not occurred because
Xxxxxx-Xxxxx has not completed the refinancing of the Indebtedness of
the Chrysson Partnerships, the Initial Closing Date shall be
automatically extended beyond December 31, 1997 in the event that
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Xxxxxx-Xxxxx has received a commitment from a lending institution to
provide for the refinancing of the Indebtedness of the Chrysson
Partnerships and is proceeding diligently to close such refinancing, in
which case the closing period shall be extended for a reasonable period
of time in order to complete such refinancing (such date being referred
to hereinafter as the "Closing Extension Date").
"INITIAL PROPERTIES" means those Properties set forth in SCHEDULE 1-2.
"LIEN" means any interest in property securing an obligation owed to,
or a claim by, a person other than the owner of the property, whether
such interest is based on the common law, statute or contract, and
including but not limited to the lien or security interest arising from
a mortgage, encumbrance, pledge, security agreement, conditional sale
or trust receipt or a lease consignment or bailment for security
purposes. The term Lien shall include reservations, exceptions, defects
of any kind or nature, encroachments, easements, rights-of-way,
covenants, conditions, restrictions, leases and other title exceptions
and encumbrances affecting property.
"OUTSTANDING CHRYSSON DEBT FINANCING" means the Indebtedness of the
Chrysson Partnerships as described on SCHEDULE 3.2(I) attached hereto
including any indemnifications and guarantees related thereto.
"PERMITTED LIEN" means (i) liens for 1997 ad valorem taxes not yet due
and payable; (ii) restrictions, easements, covenants, reservations and
rights of way of record as do not detract from the value or interfere
with the present use of a parcel of property; (iii) zoning ordinances,
restrictions and other requirements imposed by governmental authority
as do not detract from the value or interfere with the present use of a
parcel of property; and (iv) such imperfections of title, liens and
encumbrances, if any, as do not detract from the value or interfere
with the present use of a parcel of property and which do not secure
obligations for borrowed money or the deferred purchase price of
property.
"PERSON" means any individual, joint venture, corporation, company,
voluntary association, partnership, trust, joint stock company,
unincorporated organization, association, government, or any agency,
instrumentality, or political subdivision thereof, or any other form of
entity.
"PLANNED PROPERTIES" means those Properties set forth in SCHEDULE 1-3.
"PROPERTY" or "PROPERTIES" shall mean, individually, the real property
together with any Improvements thereon and all personal property and
rights, privileges and interests appurtenant thereto owned by a
Chrysson Partnership or, collectively, by all of the Chrysson
Partnerships, including but not limited to as more particularly
described on the Descriptive Property Exhibit attached hereto at
SCHEDULE 1-4.
"REDEMPTION SHARES" means the shares of Common Stock of BNP into which
Units received by the Contributors in connection with the transactions
contemplated hereby are convertible
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into under certain circumstances at the election of BNP upon their
tender for redemption as provided in the Xxxxxx-Xxxxx Partnership
Agreement.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITIES LAWS" means the Securities Act, the Exchange Act and the
rules and regulations promulgated thereunder.
"SHARES" means the duly authorized common stock, par value $.01 per
share, of BNP.
"SUBSEQUENT CLOSING" means the closing and consummation of the
transactions contemplated by this Master Agreement relating to the
Planned Properties.
"SUBSEQUENT CLOSING DATE" means with respect to each acquisition of a
Planned Property, such date as determined by the mutual agreement of
the parties hereto but no later than 30 days after all conditions
precedent to any such acquisition have been met.
"UNIT" means an undivided limited partnership interest of Xxxxxx-Xxxxx,
which is exchangeable by the Unit holder for either cash or Shares,
whichever may be elected by BNP, after one year from the Closing Date
in accordance with the Xxxxxx-Xxxxx Partnership Agreement and the
Registration Rights Agreement to be executed in conjunction with the
Exchange Option Agreement.
ARTICLE II
THE TRANSACTIONS
2.1 General. Subject to the terms, conditions, provisions and
limitations in this Master Agreement, on the Closing Date the parties shall
cause the transactions contemplated hereby to be consummated (the
"Transactions"), including, but not limited to:
(a) The closings under the Exchange Option Agreement, as
described in Section 2.2 below;
(b) At the discretion of Xxxxxx-Xxxxx, the dissolution of
the Chrysson Partnerships and the resulting transfer by operation of
law of all the Properties owned by them, respectively, to Xxxxxx-Xxxxx.
2.2 Exchange Option Agreement. Xxxxxx-Xxxxx shall tender the
consideration to each Contributor as required by the Exchange Option Agreement
such that each "Final Closing", as defined in the Exchange Option Agreement,
occurs under the terms thereof.
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2.3 Closing.
(a) The closing of the transactions contemplated by this
Master Agreement (the "Closing") shall take place at the offices of
XXXXXX & BIRD LLP, Attorneys at Law, Raleigh, North Carolina on or
before the Closing Date, but in the case of the Initial Closing Date,
in no event later than December 31, 1997 (or, if applicable, the
Closing Extension Date), unless delayed pursuant to Section 9.2(c)
hereof or otherwise agreed in writing by Xxxxxx-Xxxxx and a majority of
the Contributors. The closing of the Exchange Option Agreement shall
take place simultaneously with and only if the Closing hereunder
occurs. The Closing of the acquisition of a Planned Property shall
occur on a Subsequent Closing Date.
(b) Xxxxxx-Xxxxx may terminate this Master Agreement
without liability and without waiving any of its rights at law or in
equity by giving notice to the Contributors at any time prior to the
Initial Closing:
(i) If any one of the Chrysson Parties is in breach
of any representation, warranty, or covenant
contained in this Master Agreement or in the Exchange
Option Agreement in any material respect;
(ii) If the Initial Closing shall not have occurred
on or before the Closing Date by reason of any
condition precedent in Article IV or Article IX
hereto not being fulfilled or in the Exchange Option
Agreement (unless the failure results from
Xxxxxx-Xxxxx itself breaching any representation,
warranty or covenant contained in this Master
Agreement or in the Exchange Option Agreement); or
(iii) Pursuant to the terms of Section 9.2 hereof.
(c) The Contributors may terminate this Master Agreement
without liability and without waiving any of their respective rights at
law or in equity by giving notice to Xxxxxx- Xxxxx at any time prior to
the Initial Closing:
(i) If Xxxxxx-Xxxxx is in breach of any
representation, warranty, or covenant contained in
this Master Agreement or in the Exchange Option
Agreement in any material respect;
(ii) If the Initial Closing shall not have occurred
on or before the Closing Date by reason of any
condition precedent in Article IV or Article IX
hereto not being fulfilled (unless the failure
results from any of the Chrysson Parties breaching
any representation, warranty, or covenant contained
in this Master Agreement or in the Exchange Option
Agreement);
(iii) If there has been a material adverse change in
the financial condition or business of Xxxxxx-Xxxxx
or
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BNP taken as a whole or if Xxxxxx-Xxxxx or BNP files
any petition, or has filed against it any involuntary
petition, seeking liquidation, reorganization,
arrangement, readjustment of debts or for any other
relief under the United States Bankruptcy Code or
under any other statute, code or act, whether state,
federal or foreign, or becomes insolvent or otherwise
becomes subject to any reorganization or insolvency
proceeding; or
(iv) Pursuant to the terms of Section 9.2, if the
Contributors elect not to repair any structural
defects or deficiencies reasonably determined to
exist by Xxxxxx-Xxxxx during its due diligence review
of the Chrysson Properties under Section 9.2 hereof
(unless the structural defect or deficiency
constitutes a breach of a representation or warranty
set forth herein).
(d) In the event the Contributors elect not to proceed
with the Initial Closing for any reason other than as provided in
Section 2.3(c) hereof and Xxxxxx-Xxxxx either (i) elects not to seek
specific performance or (ii) seeks but is unable to obtain specific
performance, the Contributors, agree to pay to Xxxxxx-Xxxxx a sum equal
to Xxxxxx-Xxxxx'x and BNP's actual out-of-pocket expenses incurred in
connection with the transactions contemplated hereby up to a maximum
amount of $1.0 million plus liquidated damages equal to $500,000 as its
sole and exclusive remedy.
(e) In the event Xxxxxx-Xxxxx elects not to proceed with
the Initial Closing for any reason other than as provided in Section
2.3(b) hereof, Xxxxxx-Xxxxx agrees to pay to the Contributors, as its
sole and exclusive remedy hereunder, in the aggregate, liquidated
damages equal to $100,000.
(f) The payment of sums due under Section 2.3(d) and
2.3(e) above shall be made within two (2) business days of such
election not to proceed with the Initial Closing. Each party
acknowledges to the other that each has incurred and will incur,
substantial expenses in performing their respective preliminary
underwriting and investigations concerning the transactions
contemplated hereby and that adequate consideration exists for the
foregoing agreements.
ARTICLE III
CONSIDERATION
3.1 Contribution Price.
(a) The Initial Properties. As consideration for the
contribution of the Initial Properties, Xxxxxx-Xxxxx shall deliver to
the Contributors, in the aggregate, 1,140,077 limited partnership units
("Units") in Xxxxxx-Xxxxx (subject to adjustment as provided for
herein).
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(b) The Planned Properties. As consideration for the
contribution of the Planned Properties, Xxxxxx-Xxxxx shall deliver to
the Contributors, in the aggregate, 544,231 Units in Xxxxxx-Xxxxx
(subject to adjustment as provided for herein).
(c) Allocated Value. The Contribution Price allocable to
each of the Properties shall be allocated as set forth on SCHEDULE 3.1.
If fewer than all of the ownership interest in the Chrysson Partnership
that owns Allerton is acquired by Xxxxxx-Xxxxx, the Contribution Price
for such interests shall be the value of Allerton set forth at SCHEDULE
3.1 times the percentage of the ownership interests acquired.
(d) Contribution Value. The number of Units to be
delivered to the Contributors in exchange for their interests in the
Properties is based on a value of each Unit at $13.00.
(e) Allocation of Consideration. The Units to be delivered
to the Contributors shall be allocated among them as set forth in the
Exchange Option Agreement.
3.2 Terms of Payment.
(a) Generally. At the Initial Closing and each Subsequent
Closing, each Contributor shall receive the number of Units allocated
to him for each of the Properties to be acquired, subject to pro rata
adjustment for the following:
(i) any changes in the amount of the Outstanding
Chrysson Debt Financing as of the applicable closing
date from the amounts projected to be outstanding as
of such dates as reflected on SCHEDULE 3.2(A)(I)
attached hereto; and
(ii) the amount by which any prepayment fees
associated with Xxxxxx- Xxxxx'x refinancing of the
Outstanding Chrysson Debt Financing exceeds the
amount specified in the attached SCHEDULE 3.2(A)(II)
with respect to a Property.
(b) Pro Rata Expenses. Each Contributor shall be
responsible for payment of his pro rata portion of legal fees
associated with this transaction, any contract termination fees and any
prorations chargeable to the Contributors under Section 3.3 hereof.
3.3 Additional Closing Adjustments.
(a) Generally. All real estate taxes, charges and
assessments affecting a Property, all charges for water, sewer,
electricity, gas and all other utilities and operating expenses with
respect to a Property, to the extent not paid or payable by tenants
under the Leases (as defined in Section 6.2 below and as described on
SCHEDULE 6.2A attached hereto), shall be apportioned on a per diem
basis as of midnight on the date immediately preceding the Closing. All
such expenses for the period preceding the Closing shall be deemed
expenses of the applicable Contributors and all such expenses
commencing as of the Closing with
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respect to such Property shall be deemed to be expenses of
Xxxxxx-Xxxxx. Amounts owed under this paragraph shall be paid to the
party to whom they are owed in cash at the Closing or in the
Post-Closing Adjustment Period (as defined below) in the same manner as
if the underlying real property were being sold. If any real estate
taxes, charges or assessments have not been finally assessed as of the
Closing Date for a Property for the then current calendar tax year,
they shall be adjusted at the Closing based upon the greater of (i) the
most recently issued bills therefor or (ii) the best reasonable
estimate therefor after consultations with the appropriate taxing
officials.
(b) Rent. Except for delinquent rent, all rent under a
Chrysson Partnership's Leases and other income attributable to a
Property shall be apportioned on a per diem basis as of midnight on the
date immediately preceding the Closing. All such rent and other income,
including commissions earned, for the period preceding the Closing
shall be deemed to be property of the applicable Contributors, and all
rent and other income for any period commencing as of the Closing and
thereafter shall be the property of Xxxxxx-Xxxxx for the purpose of
making the adjustments set forth herein. Amounts owed under this
paragraph shall be paid to the party to whom they are owed in cash at
the Closing or during the Post- Closing Adjustment Period. Delinquent
rent shall not be prorated, but shall be deemed the property of the
appropriate Contributors. Payments received by Xxxxxx-Xxxxx from
tenants of a Chrysson Partnership from and after the Closing with
respect to a Property shall be applied first to rents and other amounts
then due Xxxxxx-Xxxxx from such tenant and then to such tenant's
delinquent rent as of the time of apportionment. Xxxxxx-Xxxxx shall use
reasonable efforts to collect delinquent rents for the benefit of the
Contributors but in no event shall be obligated to evict or xxx any
tenants in order to collect such rents and shall cooperate with the
Contributors in the collection of any delinquent amounts; provided,
however, that the Contributors shall not have any rights to evict such
tenants for such delinquent amounts. Any amounts received by
Contributors on account of rent or other income for the period after
the Closing with respect to the Property and the related personal
property shall be turned over to Xxxxxx-Xxxxx for application in
accordance with the terms of this paragraph. All accounts receivable,
notes, cash and bank accounts of the Chrysson Partnerships existing as
of the Closing Date shall be transferred at Closing to the appropriate
Contributors, other than the remaining balance of any escrow accounts
for tenant improvements and lease commissions held by the Chrysson
Partnerships, the amount necessary to pay prorations of taxes, security
deposits and amounts which belong to Xxxxxx- Xxxxx after making the
closing adjustments for rent and operating expenses.
(c) Preclosing Expenses and Liabilities. The parties
acknowledge that not all invoices for expenses incurred with respect to
the Properties prior to the Closing will be received by the Closing and
that a mechanism needs to be in place so that such invoices can be paid
as received. All of the prorations referred to above will be done on an
interim basis at the Closing and will be subject to final adjustment in
accordance with the provisions hereof within 60 days or such other
agreed upon period of time following Closing (the "Post- Closing
Adjustment Period"). Upon receipt by Xxxxxx-Xxxxx after Closing of an
invoice for a Property's operating expenses which are attributable in
whole or in part to a period prior to the Closing and which were not
apportioned at Closing, Xxxxxx-Xxxxx shall submit to CB
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Development Company, Inc., as agent for the Contributors
("Contributor's Representative"), a copy of such invoice with such
additional supporting information as Contributor's Representative shall
reasonably request. Within 10 days of receipt of such copy, each of the
Contributors shall pay to Xxxxxx-Xxxxx their pro rata share of an
amount equal to the portion of such invoice attributable to the period
ending as of midnight on the date immediately preceding the Closing
apportioned on a per diem basis.
(d) Security Deposits/Tenant Inducements. With respect to
the Property or Properties to be acquired at any Closing, the Chrysson
Partnerships shall pay to Xxxxxx-Xxxxx in cash at such Closing an
amount equal to the sum of (i) the Security Deposits, if any, which the
Chrysson Partnerships are holding pursuant to the Leases, and (ii) any
other deposits or advances received by the Chrysson Partnerships
relating to services yet to be provided by the Chrysson Partnerships.
3.4 Fluctuation. EACH OF THE CONTRIBUTORS AND XXXXXX-XXXXX ACKNOWLEDGES
AND AGREES THAT AFTER THE EXECUTION OF THE EXCHANGE OPTION AGREEMENT, THE MARKET
VALUE OF THE BNP COMMON STOCK WHICH IS CURRENTLY OUTSTANDING MAY INCREASE OR
DECREASE IN VALUE AS THE RESULT OF MARKET FLUCTUATIONS, AND THAT ANY SUCH
FLUCTUATIONS MAY AFFECT THE VALUE OF THE UNITS. NOTWITHSTANDING THESE
FLUCTUATIONS, XXXXXX-XXXXX WILL NOT BE REQUIRED TO INCREASE THE NUMBER OF UNITS
TO BE ISSUED TO ANY CONTRIBUTOR IN THE EVENT OF A DECREASE IN THE MARKET VALUE
OF BNP COMMON STOCK PRIOR TO THIS AGREEMENT AND THE CLOSING. LIKEWISE, EACH
CONTRIBUTOR WHOSE PURCHASE PRICE IS BEING PAID IN UNITS WILL BE ENTITLED TO THAT
NUMBER OF UNITS SET FORTH IN THE EXCHANGE OPTION AGREEMENT NOTWITHSTANDING ANY
INCREASE IN VALUE OF BNP COMMON STOCK PRIOR TO THE CLOSING.
ARTICLE IV
COVENANTS AND AGREEMENTS
4.1 Operation of Business. After making adequate provisions for all
prorations contemplated herein, specifically by Section 3.3, and by the Exchange
Option Agreement, the Chrysson Partnerships may make cash distributions of all
cash on hand immediately prior to the Closing and may otherwise only distribute
all claims or other evidences of money owed to them, it being understood that,
except as otherwise provided herein, no claims, accounts receivable, notes
receivable or other rights to payment of the Chrysson Partnerships shall remain
assets of the Chrysson Partnerships, as the case may be, as of the Closing Date.
Xxxxxx-Xxxxx and the Contributors agree to use their reasonable efforts to
reconcile prorations and other closing adjustments within the Post-Closing
Adjustment Period.
4.2 No Brokers. Except as set forth at SCHEDULE 4.2, each of the
Contributors covenants, represents and warrants to Xxxxxx-Xxxxx that, no broker
or finder or agent has been involved or engaged by it in connection with the
transactions contemplated hereby and, each hereby
10
agrees to indemnify and hold harmless Xxxxxx-Xxxxx from and against any and all
broker's or finder's fees, commissions or similar charges incurred or alleged to
have been incurred by the Contributors in connection with the transactions
contemplated hereby and any and all loss, liability, cost or expense (including
without limitation reasonable fees of counsel satisfactory to Xxxxxx-Xxxxx)
arising out of any claim that the indemnifying party incurred any such fees,
commissions or charges.
4.3 Board of Directors of BNP. The Contributors (by majority vote
thereof) shall have the right to designate two of the Contributors (the
"Contributor Directors") to serve on BNP's board of directors, effective as of
the Initial Closing Date. On or about the Initial Closing Date, the members of
the board of directors of BNP shall take all action necessary to cause the
Contributor Directors to be appointed to the board of directors of BNP, to serve
until the next annual meeting of shareholders of BNP. Each of the Contributor
Directors shall also be nominated to serve on the board of directors in
connection with the 1998 and 1999 annual meetings of the shareholders unless and
until: (i) such Contributor Director breaches his duty as a director; (ii) the
shareholders fail to elect such Contributor Director; or (iii) the Contributors
dispose of more than 25% of the Units (including Shares received upon redemption
of Units) received on the Initial Closing and any Subsequent Closings. If the
Contributors dispose of more than 25% but less than 50% of such Units, only one
Contributor Director shall be nominated to the board as provided herein; if the
Contributors dispose of more than 50% of such Units, there shall be no
obligation to nominate a Contributor Director to the board of directors. If an
event (a "Terminating Event") described in clause (i) or (ii) of this paragraph
occurs with respect to only one Contributor Director, the other Contributor
Director shall be entitled to choose another individual to serve as a
Contributor Director as provided herein. At such time as BNP completes an
underwritten secondary public offering of its Common Stock, the Contributors
shall have the right to designate three persons who are not Affiliates of a
Contributor and who are of prominent real estate industry repute (having public
company board experience), one of whom shall be selected by BNP's board of
directors (excluding the Contributor Directors) to serve as an additional member
of BNP's board of directors until the next annual meeting of the shareholders of
BNP. It is also understood that it is currently anticipated that Xxxxx Xxxxxxxxx
and Xxxxxx Xxxxx, currently officers of BNP, will also be appointed to serve on
BNP's board of directors at that time. Furthermore, except for the appointments
described above, the size of the board of directors shall not increase prior to
the earlier of the year 2000 annual meeting of the shareholders or the
occurrence of a Terminating Event unless a majority of the Independent Directors
who are not Affiliates of a Contributor determines that additional board seats
would help BNP consummate an advantageous acquisition or would further some
other important business purpose. Although BNP has agreed hereby to appoint
certain persons as directors as specified above, it is understood that there can
be no assurances of board membership beyond the appointments called for hereby.
4.4 Section 754 Elections. Each of the Contributors and the Chrysson
Partnerships agree (i) to cause an election under Section 754 of the Code to be
included in the closing federal partnership tax returns of each of the Chrysson
Partnerships indicating Xxxxxx-Xxxxx as a partner; (ii) to prepare, at their
expense, and timely file closing partnership tax returns for the period ending
on the Closing Date for each of the Chrysson Partnerships; and (iii) to present
such tax returns to Xxxxxx-Xxxxx for its approval, which shall not be
unreasonably withheld, sufficiently in advance of the filing of such returns.
11
4.5 Termination of Contracts. Unless otherwise specified by
Xxxxxx-Xxxxx in writing, all management, development, leasing or other
contracts, entered into by the Chrysson Partnerships with respect to any
Property, if any, must be terminated as of the effective date of Closing with
respect to such Property so that Xxxxxx-Xxxxx or its designee shall have the
exclusive right to manage and lease such Property.
4.6 Contributions of Assets. All personal property used by the Chrysson
Parties in the operation and management of the Properties including but not
limited to that listed on SCHEDULE 4.6 will be transferred to Xxxxxx-Xxxxx in
conjunction with the Closing and as partial consideration for the transactions
otherwise contemplated by this Agreement.
4.7 Non-Compete Agreements. Each Contributor agrees not to, and
warrants that no Affiliate will, directly or indirectly, build, purchase,
acquire, own or manage any property competing with any business or property
owned or managed by Xxxxxx-Xxxxx (or any of its Affiliates) within a three-mile
radius, without Xxxxxx-Xxxxx'x consent, for such period of time that the
Contributors own, in the aggregate, more than 5% of BNP's outstanding common
stock (on an as-converted basis) or at least one director of BNP is Affiliated
with any Contributor.
4.8 Future Development Rights. For so long as (i) the Contributors own,
in the aggregate, more than 5% of BNP's outstanding securities (on an as
converted basis) and/or (ii) at least one director to BNP's board of directors
is Affiliated with any Contributor, Xxxxxx-Xxxxx shall have a right of first
refusal to acquire all future multi-family properties developed directly or
indirectly by any Contributor, or any Affiliate thereof (a "Development
Property"). The Contributors shall not sell any Development Property without
first offering Xxxxxx-Xxxxx the option to purchase such Development Property on
the same terms as offered to a third party. Xxxxxx-Xxxxx shall have 30 days to
decide whether or not to purchase such Development Property on such terms. If
Xxxxxx- Xxxxx declines to exercise this option, the Development Property may be
sold within the next 120 days on terms no more favorable than those presented to
Xxxxxx-Xxxxx. If the Development Property is not sold within such 120-day
period, Xxxxxx-Xxxxx will again have a right of first refusal prior to any sale
of the Development Property. The decision whether to exercise such option with
respect to any Development Property shall be made by BNP's board of directors on
a case-by-case basis with any director that is a Contributor or Affiliated with
an Contributor abstaining from such decision.
4.9 Excess Shares. If any Contributors are ever deemed to hold "Excess
Shares" as defined in the Articles of Incorporation, BNP will use reasonable
efforts to try to enable such Contributors to keep such shares; provided that
BNP need not take any steps that would jeopardize its status as a REIT or that
would require BNP to issue additional securities.
4.10 Assignment of Warranties. With respect to any Property that was
constructed within 12 months of the Closing, the Chrysson Partnerships will
assign all warranties with respect to such Property to Xxxxxx-Xxxxx and will use
their best efforts to cause the maker of such warranties to consent to such
assignment if necessary for such assignment to be valid.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF
CONTRIBUTORS - GENERALLY
To induce Xxxxxx-Xxxxx and BNP to enter into this Master Agreement and
the transactions contemplated hereby, unless otherwise indicated, each of the
Contributors represents and warrants that the statements contained in Article V
and Article VI are true, correct and complete on the date hereof and will be
true, correct and complete on the Closing Date. It is the express intention and
agreement of each of the Contributors that the representations and warranties
set forth in Article V and Article VI shall survive the consummation of the
transactions contemplated in this Master Agreement, but only to the extent
expressly provided in Section 10.2 hereof.
5.1 Consents. Except as disclosed on SCHEDULE 6.2C and SCHEDULE 5.1
attached hereto, to the actual knowledge of each Contributor, (i) no consents,
approvals, waivers, notifications, acknowledgments or permissions which have not
been obtained are required in order for any of the Chrysson Parties to fully
perform its or his respective obligations under this Master Agreement or which,
if left unobtained at Closing and thereafter, would have a material adverse
affect on the value, operation, occupation, use or development of any Initial
Property, and (ii) the execution and delivery of this Master Agreement by the
Chrysson Parties and the consummation of the transactions contemplated hereby,
including without limitation the execution of any related agreements, will not
require the consent of, or any prior filing with or notice to or payment to, any
governmental authority or other Person.
5.2 Disclosure. To the actual knowledge of each of the Contributors,
the representations and warranties contained in this Master Agreement (including
Schedules and Exhibits and documents or instruments delivered in connection
herewith) or in any information, statement, certificate or agreement furnished
or to be furnished to Xxxxxx-Xxxxx by any of the Chrysson Parties in connection
with the Closing pursuant to this Master Agreement or the Exchange Option
Agreement, do not contain any untrue statement of a material fact or omit to
state any material fact necessary to make the statements and information
contained herein or therein, in light of the circumstances in which they are
made, not misleading.
5.3 Absence of Conflicts. Except as set forth on SCHEDULE 5.1 AND
SCHEDULE 5.3 attached hereto, to the actual knowledge of each Contributor, the
execution, delivery and performance of this Master Agreement by the Chrysson
Parties and the consummation of the transactions contemplated hereby, including
without limitation, the execution and delivery of any documents, instruments or
agreements contemplated hereby, will not (after a lapse of time, due notice or
otherwise) (a) conflict with, violate or result in any breach or default under
(i) any provision of any partnership agreement, operating agreement or
certificate of any of the Chrysson Partnerships; (ii) any law, statute, rule or
regulation of any administrative agency or governmental body, or any judgment,
order, writ, stipulation, injunction, award or decree of any court, arbiter,
administrative agency or governmental body to which the Chrysson Parties or the
Properties are subject; or (iii) any indenture, agreement, instrument or other
contract to which the Chrysson Parties may be bound or relating to or affecting
their assets (except for the documents and instruments evidencing and/or
securing the Outstanding Chrysson Debt Financing); or (b) except for the
remedies imposed by the
13
documents evidencing the Outstanding Chrysson Debt Financing, result in the
acceleration of, create in any party the right to accelerate, terminate, modify
or cancel, or require any notice under or result in the creation or imposition
of any Lien on the Properties or related assets in accordance with the terms of
this Master Agreement under any indenture, mortgage, contract, agreement, lease,
sublease, license, sublicenses, franchise, permit, instrument of indebtedness,
security agreement or other undertaking or instrument to which the Chrysson
Parties may be bound or affected.
5.4 Certification of Chrysson Financial Statements. The Chrysson
Financial Statements are true, correct and complete in all material respects,
are prepared in accordance either with generally acceptable accounting
principles or federal income tax principles, consistently applied, and fairly
present the financial condition of each of the applicable Chrysson Partnerships.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
OF CONTRIBUTORS AS TO THE
CHRYSSON PARTNERSHIPS
Each of the Contributors jointly and severally represents and warrants
to Xxxxxx-Xxxxx and BNP as follows:
6.1 Power and Authority of Chrysson Partnerships. Each of the Chrysson
Partnerships is a limited partnership or limited liability company, as the case
may be, duly formed and validly existing under the laws of the State of North
Carolina. To the actual knowledge of each Contributor, each partner or member of
the Chrysson Partnerships which is not an individual has been duly formed and is
validly existing. All partnership interests in each Chrysson Partnership have
been validly issued and fully paid. True, correct and complete copies of each of
the partnership agreements, operating agreements and other organizational
documents, as applicable, of the Chrysson Partnerships and all amendments
thereto, and the minutes of any meetings of the partners of the Chrysson
Partnerships, have been submitted to Xxxxxx-Xxxxx prior to the date of this
Master Agreement. Each of the Chrysson Partnerships has full power and authority
to own and operate its properties and to enter into and perform its obligations
under this Master Agreement and the documents and instruments contemplated
hereby to which they are a party, and the execution, delivery and performance of
this Master Agreement have been duly authorized by all requisite partnership or
company actions on the part of each of the Chrysson Partnerships. This Master
Agreement constitutes, and the documents and instruments contemplated hereby and
other instruments and documents to be executed and delivered by the Chrysson
Partnerships, as applicable, hereunder will, when executed, constitute the
legal, valid and binding obligations of the Chrysson Partnerships, respectively,
enforceable against them in accordance with their respective terms. To the
actual knowledge of each of the Contributors, the Closing of the Exchange Option
Agreement, and the Master Agreement will effectuate the transfer of all of the
ownership interests in each of the Chrysson Partnerships, except for an 41 1/2%
equity interest in the Chrysson Partnership that owns Allerton.
14
6.2 Rent Roll and Leases. The schedule of leases attached hereto as
SCHEDULE 6.2A (the "Schedule of Leases") is a true, correct and complete
schedule of all leases, subleases and rights of occupancy in effect with respect
to each of the Properties, respectively (the "Leases"), and there have been no
material changes to the Leases. Except as set forth on the Schedule of Leases,
there are no other leases, subleases, tenancies or other rights of occupancy in
effect with respect to the Properties other than the Leases. True, correct and
complete copies of the Leases, together with all amendments and supplements
thereto and all other documents and correspondence relating thereto, have been
delivered or made available to Xxxxxx-Xxxxx and its agents. SCHEDULE 6.2A
includes the rent roll information and is, as of the date shown thereon, true
and correct in all material respects. To the actual knowledge of each of the
Contributors, the Schedule of Leases sets forth, as of such date, (i) a list of
all tenants under the Leases, (ii) all arrearages owing from such tenants under
such Leases (listed on delinquency and default reports attached to and made a
part thereof), (iii) the expiration date of the term of such Leases, (iv) the
rent the tenant under such Lease is currently obligated to pay, (v) the amount
of any concession given in connection with any such Lease at any time, (vi) the
current outstanding balances of any security deposits held pursuant to any
Leases, (vi) any prepayments of rent by any tenant under any Lease of more than
one (1) month in advance (excluding security deposits which are delineated on
the list attached to the Schedule of Leases and made a part thereof) and (viii)
each Contributor represents that to his actual knowledge, there are no rental
concessions or abatements under a Lease applicable to any period subsequent to
the Initial Closing. Except as set forth on the Schedule of Leases, to the
actual knowledge of the Contributors, all such Leases are valid and enforceable
and presently in full force and effect, and none of the Leases have been
assigned. Except as set forth on SCHEDULE 6.2B attached hereto, none of the
Chrysson Partnerships, or to the actual knowledge of each Contributor, any
lessee under any Lease, is in default under such Lease, and to the actual
knowledge of each Contributor, there is no event which, but for the passage of
time or the giving of notice, or both, would constitute a default under such
Leases, except such defaults that would not have a material adverse effect on
the condition, financial or otherwise or on the earnings, business affairs or
business prospects of any of the Chrysson Partnerships or the Properties. Except
as disclosed on SCHEDULE 6.2B attached hereto, to the actual knowledge of each
of the Contributors, the consummation of the transactions contemplated by this
Master Agreement will not give rise to any breach, default or event of default
under any of the Leases. Each of the Leases is assignable by the applicable
Chrysson Partnership and, except as disclosed on SCHEDULE 6.2C attached hereto,
none of the Leases requires the consent or approval of any party in connection
with the transactions contemplated by this Master Agreement.
6.3 No Contracts. No agreements, undertakings or contracts (the
"Contracts") affecting the Properties or the Chrysson Partnerships, written or
oral, will be in existence as of the Initial Closing, except as set forth on
SCHEDULE 6.3, SCHEDULE 3.2(I), SCHEDULE 6.2A and SCHEDULE 6.15 attached hereto,
all of which must have been approved by Xxxxxx-Xxxxx in writing.
6.4 Liabilities; Indebtedness. Except for the Outstanding Chrysson Debt
Financing, the Leases, the liabilities expressly assumed by Xxxxxx-Xxxxx under
the provisions of this Master Agreement, including the operating agreements
listed on SCHEDULE 6.15 which are assumed by Xxxxxx-Xxxxx hereunder, and those
liabilities disclosed to Xxxxxx-Xxxxx in writing on SCHEDULE 6.4 hereto, the
Chrysson Partnerships have not incurred any Indebtedness related to the Initial
Properties
15
except in each instance for trade payables and any other customary and ordinary
expenses in the ordinary course of business that will be paid and discharged in
full by the Chrysson Partnerships, respectively, as of the Initial Closing.
6.5 Insurance. Each of the Chrysson Partnerships currently maintains or
causes to be maintained all of the public liability, casualty and other
insurance coverage with respect to the Properties and their respective
businesses as set forth on SCHEDULE 6.5 attached hereto. All such insurance
coverage shall be maintained in full force and effect through the Closing and
all premiums due and payable thereunder have been, and shall be, fully paid when
due.
6.6 Personal Property. All equipment, fixtures and personal property
located at or on any of the Properties, respectively, which is owned or leased
by the Chrysson Partnerships shall remain at the Properties and shall not be
removed prior to the Closing, except for equipment that becomes obsolete or
unusable, which may be disposed of or replaced in the ordinary course of
business. The personal property of the Chrysson Partnerships is not subject to
any Liens except for Permitted Liens.
6.7 Claims or Litigation. Except as set forth on SCHEDULE 6.7 attached
hereto, none of the Chrysson Parties has received notice of any claim, demand,
suit or unfiled lien against the Chrysson Parties or the Properties nor to any
of the Contributors' actual knowledge has any proceeding or litigation of any
kind, pending or outstanding, been filed before any court or administrative,
governmental or regulatory authority, agency or body, domestic or foreign, and,
to the actual knowledge of any of the Contributors, no order, judgment,
injunction or decree of any court, tribunal or other governmental authority has
been filed against any of the Chrysson Parties or any of the Properties or, to
the actual knowledge of any of the Contributors, threatened, or likely to be
made or instituted, which would have a materially adverse affect on the business
or financial condition of any of the Chrysson Parties or any of the Properties
or in any way be binding upon Xxxxxx-Xxxxx or affect or limit Xxxxxx-Xxxxx'x
full use and enjoyment of any of the Properties.
6.8 Hazardous Substances. Each of the Contributors represents, to his
actual knowledge, that (x) as of the date hereof and (y) except as set forth in
the environmental audit reports provided to Xxxxxx-Xxxxx by the Chrysson Parties
and in the environmental assessments of the Properties conducted on behalf of
Xxxxxx-Xxxxx (the "Environmental Assessments"), as of any Closing Date, the
Chrysson Parties have not generated, stored, released, discharged or disposed of
hazardous substances or hazardous wastes at, upon or from any of the Properties
in violation of any Environmental Law, order, judgment or decree or permit, or
in connection with which remedial action would be required under any
Environmental Law, order, judgment, decree or permit. To the actual knowledge of
each of the Contributors, (x) as of the date hereof and (y) except as set forth
in the environmental audit reports provided to Xxxxxx-Xxxxx by the Chrysson
Parties or in the Environmental Assessments, as of any Closing Date, no
hazardous substances or hazardous wastes have otherwise been generated, stored,
released, discharged or disposed of from, at or upon any of the Properties in
violation of any Environmental Law. To the actual knowledge of each of the
Contributors, (x) as of the date hereof and (y) except as set forth in the
environmental audit reports provided to Xxxxxx-Xxxxx by the Chrysson Parties or
in the Environmental Assessments, as of any Closing Date, no underground storage
tanks are located on any of the Properties. As used in this
16
Master Agreement, the terms "hazardous substances" and "hazardous wastes" shall
have the meanings set forth in the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, and the regulations thereunder, the
Resource Conservation and Recovery Act, as amended, and the regulations
thereunder, and the Federal Clean Water Act, as amended, and the regulations
thereunder, and such terms shall also include asbestos, petroleum products,
radioactive materials and any regulated substances under any Environmental Law,
regulation or ordinance.
6.9 Compliance with Laws. The Chrysson Parties possess such
certificates, authorities or permits issued by the appropriate state or federal
regulatory agencies or bodies necessary to conduct the business to be conducted
by them (other than any environmental certification, authorities or permits
required by state or federal agencies to be obtained by tenants of the
Properties) and none of the Chrysson Parties has received any written notice of
proceedings relating to the revocation or modification of any such certificate,
authority or permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially and adversely affect
the condition, financial or otherwise, or the earnings, business affairs or
business prospects of any of the Chrysson Parties or any of the Properties, as
applicable. Except as otherwise disclosed to Xxxxxx- Xxxxx in writing, to the
actual knowledge of each of the Contributors, there is no existing violation of
any federal, state, county or municipal law, ordinance, order, code, regulation
or requirement affecting any of the Chrysson Parties or the Properties that
would have a material, adverse effect on the financial condition, business or
prospects of any of the Chrysson Parties. Except as otherwise disclosed to
Xxxxxx-Xxxxx in writing, to the actual knowledge of each of the Contributors,
there has been no material misstatement of a fact or misrepresentation of a fact
herein or in any other written document submitted by any of the Chrysson Parties
to Xxxxxx-Xxxxx. Except as otherwise disclosed to Xxxxxx-Xxxxx in writing, to
the actual knowledge of each of the Contributors, there are no zoning,
environmental or other land use regulation proceedings instituted against any of
the Properties that would materially, adversely affect the use, occupancy or
operation of such Property. To the actual knowledge of each of the Contributors,
each of the Chrysson Parties has obtained all material licenses, permits,
certificates and authorization necessary to conduct its business.
6.10 Employees. None of the Chrysson Partnerships presently has any
employees nor have any of the Chrysson Partnerships ever had any such employees.
6.11 Condemnation and Moratoria. Except as set forth at SCHEDULE 6.11,
to the actual knowledge of each of the Contributors, 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 any portion of
any of the Properties; (ii) no pending or threatened moratoria on utility or
public sewer hook-ups or the issuance of permits, licenses or other inspections
or approvals necessary in connection with the construction or reconstruction of
improvements, including without limitation tenant improvements, which affect or
would affect any portion of any of the Properties; and (iii) no pending or
threatened proceeding to change adversely the existing zoning classification as
to any portion of any of the Properties. No portion of any of the Properties is
a designated historic property or located within a designated historic area or
district, and to the actual knowledge of each of the Contributors, there are no
graveyards or burial grounds located within any of the Properties. Xxxxxx-Xxxxx
shall be entitled to all compensation received from any governmental authority
relating to the proceedings or negotiations described at SCHEDULE 6.11.
17
6.12 Condition of Improvements. To the actual knowledge of each of the
Contributors after reasonable inquiry, (x) as of the date hereof and (y) except
as otherwise disclosed to Xxxxxx- Xxxxx during the due diligence process related
to the Properties by its independent engineers or others conducting such due
diligence, as of any Closing Date, there is no material defect in the condition
of (i) any of the Properties, (ii) the improvements thereon, (iii) the roof,
foundation, load-bearing walls or other structural elements thereof, (iv) any
drainage or soil condition of any nature, or (v) the mechanical, electrical,
plumbing and safety systems therein, nor any material damage from casualty or
other cause, nor any soil condition of any nature that will not support all of
the Improvements currently thereon without the need for unusual or new
subsurface excavations, fill, footings, caissons or other installations. For
purposes of this Section 6.12, the actual knowledge of a Contributor shall not
be imputed to the knowledge of another Contributor unless such Contributor has
actual independent knowledge of such fact.
6.13 Taxes. Except as set forth on SCHEDULE 6.13 attached hereto and
the ad valorem taxes assessed on the Properties, (i) all tax or information
returns required to be filed on or before the date hereof by or on behalf of the
Chrysson Parties or the Properties have been filed and all such tax or
information returns required to be filed hereafter will be filed on or before
the date due in accordance with all applicable laws prior to the incurrence of
any penalties or interest thereon and all taxes shown to be due on any returns
have been paid or will be paid when due; and (ii) to the actual knowledge of
each of the Contributors, there is no action, suit or proceeding pending against
or threatened with respect to any Chrysson Party or any of the Properties in
respect of any tax, nor is any claim for additional tax asserted by any taxing
authority. None of the Chrysson Parties nor any of their respective federal,
state and local income or franchise tax returns are the subject of any audit or
examination by any taxing authority. None of the Chrysson Parties has executed
or filed with the Internal Revenue Service or any other taxing authority any
agreement now in effect extending the period for assessment or collection of any
income or other taxes.
6.14 Management Agreements. All management, leasing, development or
service and similar agreements in effect entered into by any of the Chrysson
Parties or any Affiliates of the Chrysson Parties relating to the Initial
Properties are described on SCHEDULE 6.14 attached hereto (collectively, the
"Management and Leasing Agreements"), and all such Management and Leasing
Agreements relating to the Properties shall be terminated as of the Initial
Closing Date and thereafter shall be void and of no further force and effect.
6.15 Operating Agreements. True, complete and correct copies of all
agreements pertaining to the operation of the Properties as of the date hereof
(collectively, the "Existing Operating Agreements") have been provided or made
available to Xxxxxx-Xxxxx. The Existing Operating Agreements are, to the actual
knowledge of each of the Contributors, in full force and effect, no Chrysson
Partnership is in default of any of its material obligations under any of such
Existing Operating Agreements, and except for those set forth on SCHEDULE 6.15
attached hereto, all Existing Operating Agreements are terminable on not more
than thirty (30) days prior written notice and without payment of any penalty.
At the Closing with respect to each of the Properties, true, complete and
correct copies of such Existing Operating Agreements shall have been provided or
made available to Xxxxxx-Xxxxx and, to the actual knowledge of each of the
Contributors, the Existing Operating Agreements shall be, unless otherwise
described in writing to Xxxxxx-Xxxxx or
18
except as otherwise provided herein, (i) in full force and effect and (ii) free
from any default by the appropriate Chrysson Partnership of any of its material
obligations under any of them. Chrysson shall advise Xxxxxx-Xxxxx immediately of
any default by any party to an Existing Operating Agreement. Xxxxxx-Xxxxx does
not assume any obligation under any Existing Operating Agreement for acts or
omissions which occur prior to Closing.
6.16 Absence of Certain Changes. Since December 31, 1996, except as
otherwise set forth in this Master Agreement, to the actual knowledge of each of
the Contributors, there has not been with respect to any of the Chrysson
Partnerships:
(a) any material adverse change in the financial condition
of any of such Chrysson Parties;
(b) any adverse change in the condition of the property,
business or liabilities of any of the Chrysson Partnerships except
normal and usual changes in the ordinary course of business which have
not been materially adverse;
(c) any damage, destruction or loss, whether or not
covered by insurance, materially and adversely affecting the properties
or business of any of the Chrysson Partnerships;
(d) any sale, abandonment or other disposition by any of
the Chrysson Partnerships of any interest in the Properties, or of any
personal property owned by a Chrysson Partnership, other than in the
ordinary course of such Chrysson Partnership's business;
(e) any change in the accounting methods or practices by
any of the Chrysson Partnerships or in depreciation or amortization
policies theretofore used or adopted;
(f) any material contractual liability incurred by any of
the Chrysson Partnerships, contingent or otherwise, other than for
operating expenses, obligations under executory contracts incurred for
fair consideration and taxes accrued with respect to operations during
such period, all incurred in the ordinary course of business; or
(g) any other material adverse change in the business of
any of the Chrysson Partnerships or any of the Properties.
6.17 Tradename. There have never been any Liens or pending or
threatened third-party claims for infringement or unlawful use of the tradename
used by the multi-family community of a Chrysson Partnership, and to the actual
knowledge of each of the Contributors each of the Chrysson Partnerships has the
right to sell, transfer, assign and convey the Tradename to Xxxxxx-Xxxxx,
provided, however, no party has filed for any protection under federal or state
trademark laws and no Chrysson Party has taken any steps other than use to
secure any common law proprietary interest in the Tradename.
19
6.18 Title. The Chrysson Partnerships have good and marketable fee
simple title to the Properties, and as of Closing there will be no mechanics'
liens, contractors' claims, unpaid bills for material or labor pertaining to the
Initial Properties, nor any other similar liens which might adversely affect the
Chrysson Partnerships' title to the Initial Properties, except for current ad
valorem real estate taxes.
6.19 Certain Liens. All labor and services performed and materials
furnished to the Initial Properties have been paid for in full and to the best
of the Chrysson Partnerships' knowledge, there exists no basis for which a
mechanic's, materialman's or similar lien can properly be claimed against the
Initial Properties or any part thereof.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
OF XXXXXX-XXXXX
To induce the Chrysson Parties to enter into this Master Agreement and
the transactions contemplated hereby, Xxxxxx-Xxxxx hereby represents and
warrants to the Chrysson Parties that the statements contained in this Article
VII are true, correct and complete as of the date hereof and will be true,
correct and complete on the Closing Date. It is the express intention and
agreement of Xxxxxx-Xxxxx that the foregoing representations and warranties
shall survive the consummation of the transactions contemplated in this Master
Agreement, but only to the extent expressly provided in Section 10.4 hereof.
7.1 Organization and Authority. Xxxxxx-Xxxxx has been duly formed and
is validly existing as a North Carolina limited partnership and is duly
qualified to do business in all jurisdictions where such qualification is
necessary to carry on its business as now conducted and is duly qualified or in
the process of becoming duly qualified in all jurisdictions where the ownership
of its property would necessitate such qualification. Xxxxxx-Xxxxx has all
partnership power and authority under its Partnership Agreement and its
certificate of limited partnership to enter into this Master Agreement and the
Exchange Option Agreement and to enter into and deliver all of the documents and
instruments required to be executed and delivered by Xxxxxx-Xxxxx and to perform
its obligations hereunder and thereunder.
7.2 Binding Obligation. The execution and delivery of this Master
Agreement, the Exchange Option Agreement and the documents required to be
executed by Xxxxxx-Xxxxx hereunder and thereof, and the performance of its
obligations under this Master Agreement and the Exchange Option Agreement, have
been duly authorized by all requisite partnership action, and this Master
Agreement and the Exchange Option Agreement have been, and such documents will
on the Closing Date have been, duly executed and delivered by Xxxxxx-Xxxxx. This
Master Agreement and the Exchange Option Agreement do and will, and the
documents executed by Xxxxxx-Xxxxx will, constitute the valid and binding
obligation of Xxxxxx-Xxxxx enforceable in accordance with their terms, subject
to bankruptcy and similar laws affecting the remedies or recourse of creditors
generally.
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7.3 Partnership Agreement. The Xxxxxx-Xxxxx Partnership Agreement as in
effect on the Initial Closing Date shall be substantially in the form as shown
at EXHIBIT 7.3.
7.4 Disclosure. To the actual knowledge of Xxxxxx-Xxxxx, the
representations and warranties contained in this Master Agreement (including
Schedules and Exhibits and documents or instruments delivered in connection
herewith) or in any information, statement, certificate or agreement furnished
or to be furnished to any of the Chrysson Parties by Xxxxxx-Xxxxx in connection
with the Closing pursuant to this Master Agreement or the Exchange Option
Agreement, do not contain any untrue statement of a material fact or omit to
state any material fact necessary to make the statements and information
contained herein or therein, in light of the circumstances in which they are
made, not misleading.
7.5 Insurance. Xxxxxx-Xxxxx shall at all times until three (3) years
from the date hereof cause to be maintained all of the public liability,
casualty and other insurance coverage with respect to the Properties and their
respective businesses in such amounts it considers appropriate in its sole
discretion.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES OF BNP
BNP hereby represents and warrants to each Chrysson Party as follows:
8.1 Organization and Authority. BNP has been duly formed and is validly
existing as a Maryland corporation and has elected under the Code to be treated
as a real estate investment trust, and is duly qualified to do business in all
jurisdictions where such qualification is necessary to carry on its business as
now conducted and is duly qualified or in the process of becoming duly qualified
in all jurisdictions in which its properties or Xxxxxx-Xxxxx'x properties. BNP
has all power and authority under its organizational documents to enter into
this Master Agreement and such other documents as are required hereby and by the
Exchange Option Agreement to be executed by it.
8.2 Binding Obligations. The execution and delivery of this Master
Agreement, the Exchange Option Agreement and the documents required to be
executed by BNP by the terms hereof and thereof, and the performance of its
obligations under this Master Agreement, the Exchange Option Agreement and the
documents executed by it, have been duly authorized by all requisite action and
this Master Agreement, the Exchange Option Agreement, and the documents required
to be executed by it have been and will on the Closing Date have been, duly
executed and delivered by BNP. To the actual knowledge of BNP, none of the
foregoing requires any action by or in respect of, or filing with, any
governmental body, agency or official or contravenes or constitutes a default
under any provision of applicable law or regulation, any organizational document
of BNP or any agreement, judgment, injunction, order, decree or other instrument
binding upon BNP. This Master Agreement does and will, and the documents
required to be executed by it will, constitute the valid and binding obligations
of BNP enforceable in accordance with their respective terms, subject to
bankruptcy and similar laws affecting the remedies or resources of creditors
generally.
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8.3 Securities Filings. BNP has delivered or made available to each
Contributor each report, proxy statement or information statement and all
exhibits thereto prepared by it or relating to its properties since December 31,
1995 each in the form (including exhibits and any amendments thereto) filed with
the SEC (collectively, the "Xxxxxx-Xxxxx Reports"). The Xxxxxx-Xxxxx Reports,
which were filed with the SEC in a timely manner, constitute all forms, reports
and documents required to be filed by BNP under the Securities Laws during such
time period. As of their respective dates and to the best of Xxxxxx-Xxxxx'x
knowledge, the Xxxxxx-Xxxxx Reports (i) complied as to form in all material
respects with the applicable requirements of the Securities Laws and (ii) did
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements made
therein, in the light of circumstances under which they were made, not
misleading. No material adverse change in the financial condition, business
operations or properties of BNP has occurred that would render any material
statement made in any of the Xxxxxx-Xxxxx Reports materially untrue or
misleading.
8.4 REIT Status of BNP. BNP is organized and operates and will continue
to operate in a manner so as to qualify as a "real estate investment trust"
under Section 856 thorough 860 of the Code. BNP has elected, and will continue
to elect, to be taxed as a "real estate investment trust" under the Code.
ARTICLE IX
CONDITIONS TO CLOSING AND
DUE DILIGENCE INVESTIGATION
9.1 Conditions to Closing of Initial Properties. In addition to the
other pre-conditions detailed herein, each of the following shall be a condition
as described below to the obligation to close the transactions contemplated
hereby with respect to the Initial Properties:
(a) BNP Shareholder Approval. If it is determined by BNP
that the completion of the transactions contemplated hereby requires
the approval of BNP's shareholders, then (i) such approval shall be a
condition to close the transaction contemplated hereby and (ii) BNP
agrees that it shall in good faith promptly begin the process of
preparing and filing with the SEC any necessary proxy material and will
call for and hold a shareholder meeting as soon as is reasonably
practicable to vote on such matter. If such approval is required and
the shareholders of BNP do not approve the transactions contemplated
hereby, this Agreement shall be terminated and Xxxxxx-Xxxxx shall be
obligated to pay to the Contributors the liquidated damages set forth
in Section 2.3(e) hereof.
(b) Price of BNP's Common Stock. If the average daily last
sale price of BNP's Common Stock for the 20 trading days prior to the
Initial Closing is less than $12.00 per share, then the Chrysson
Parties shall have no obligation to close the transaction contemplated
hereby. If the average daily last sale price of BNP's Common Stock for
the 20 trading days prior to the Initial Closing is greater than $14.75
per share, then Xxxxxx- Xxxxx shall have no obligation to close the
transaction contemplated hereby.
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(c) Refinancing of Loans. Xxxxxx-Xxxxx shall have no
obligation to close the transactions contemplated hereby if
Xxxxxx-Xxxxx determines that it is unable to refinance all of the
Outstanding Chrysson Debt Financing on terms reasonably acceptable to
the Board of Directors of BNP.
(d) Termination of Management Contracts. Xxxxxx-Xxxxx
shall have no obligation to close the transactions contemplated hereby
if Xxxxxx-Xxxxx does not have the unconditional right to manage all of
the Properties as of their respective acquisition date. Any costs
associated with terminating any existing contracts shall be at the
Contributors' expense.
(e) Limitation on Costs. Xxxxxx-Xxxxx shall have no
obligation to close the transactions contemplated hereby if
Xxxxxx-Xxxxx'x and BNP's aggregate total cash expenses for completing
the acquisition of the Initial Properties (exclusive of any investment
banking fees) exceeds $1.0 million.
(f) No Material Adverse Change to Properties. Xxxxxx-Xxxxx
shall have no obligation to close the transactions contemplated hereby
if there has been a material adverse change in the condition, financial
or otherwise, of any of the Properties, or the business prospects of
any of the Properties from the date hereof.
(g) Title and Survey. Xxxxxx-Xxxxx shall have no
obligation to close the transactions contemplated hereby if the
Contributors do not convey good and marketable title to the Properties,
which shall be free and clear of all liens, defects and encumbrances,
except "Permitted Liens" or if the Contributors do not convey
unencumbered title to all personal property, including but not limited
to all personalty, fixtures, furniture, equipment and communication
infrastructure, including TV cables, used in the operation of the
Properties. Xxxxxx-Xxxxx shall pay for the preliminary title report,
the premium for an ALTA "extended coverage" Owner's Policy.
Xxxxxx-Xxxxx shall pay the costs of recording the deed and shall be
responsible for ordering the ALTA survey (at Xxxxxx-Xxxxx'x costs and
in a form required by Xxxxxx-Xxxxx and its mortgage lender).
Additionally, Xxxxxx-Xxxxx and the Contributors are each responsible
for their respective legal fees. Any fees associated with the
assumption by Xxxxxx-Xxxxx or the prepayment or retirement of debt
encumbering any of the Properties (to the extent such fees exceed those
specified at SCHEDULE 3.2(II) with respect to any Property), property
transfer and documentary taxes, all other costs related to the transfer
of the Properties and escrow fees shall be paid by the Contributors and
shall be a reduction in the Contribution Price.
(h) Performance of Properties. Xxxxxx-Xxxxx shall have no
obligation to close the transactions contemplated hereby unless each
Property has met the performance standards set forth at EXHIBIT 9.1(H)
(the "Performance Standards").
(i) Opinion to Xxxxxx-Xxxxx. Xxxxxx-Xxxxx shall have no
obligation to close the transactions contemplated hereby if
Xxxxxx-Xxxxx and BNP have not received an opinion of counsel to the
Chrysson Parties substantially in the form of EXHIBIT 9.1(I) attached
hereto.
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(j) Opinion to Chrysson. The Chrysson Parties shall have
no obligation to close the transactions contemplated hereby if the
Chrysson Parties have not received an opinion of counsel to
Xxxxxx-Xxxxx and BNP substantially in the form of EXHIBIT 9.1(J)
attached hereto.
(k) No Material Adverse Change to BNP. The Chrysson
Parties shall have no obligation to close the transactions contemplated
hereby if there has been a material adverse change in the financial
condition of BNP from the date hereof; provided that a decrease in the
market price of BNP's Common Stock shall not be deemed a "material
adverse change." The provisions of this Section 9.1(k) shall not affect
or limit the Chrysson Parties' right to terminate this Agreement under
Section 9.1(b) hereof.
(l) Performance of Obligations. The Chrysson Partnerships
shall have performed all of its obligations under the Contracts, the
Leases, the Permitted Liens and any mortgages relating to the
Properties.
(m) Payment of Charges and Assessments. All charges and
assessments (other than ad valorem property taxes for the year of
Closing) for sewer, water, streets, sidewalks, and similar improvements
by any governmental authority affecting the Initial Properties, to the
extent due and payable prior to Closing, shall have been paid.
(n) Authorizations. Xxxxxx-Xxxxx shall have received by
the Closing all necessary and appropriate licenses, permits, approvals
and authorizations (collectively, the "Authorizations") from all
governmental agencies, authorities, boards, commissions, departments
and bodies having or claiming to have jurisdiction over the Properties;
provided that Xxxxxx-Xxxxx has used its best efforts to obtain the
Authorizations.
(o) Zoning. No actual or threatened easement, zoning
ordinance or use regulation, statute, ordinance, law, juridical
decision, official or unofficial policy, restriction or reservation or
proposed shall prohibit or impair (and there shall be no pending or
threatened litigation which may prohibit or impair) Xxxxxx-Xxxxx'x use
and operation of the Properties.
(p) Representations and Warranties. All of the
representations and warranties of the parties hereto shall be true and
correct in all material respects as of the Closing Date.
9.2 Xxxxxx-Xxxxx Investigation/Due Diligence Period. For a period of
sixty (60) days after the execution date of this Agreement ("Investigation/Due
Diligence Period") and for a 60-day period prior to any Subsequent Closing
Xxxxxx-Xxxxx, at its own expense, shall have the right, but not the obligation,
to perform due diligence on the Properties and of the Chrysson Partnerships,
including but not limited to the following procedures:
(a) Physical. Inspect all physical aspects of the
Properties, including inspections of all apartment units at each
Property and including all systems, components and service
24
contracts. Contributor agrees to supply Xxxxxx-Xxxxx with "as-built"
plans, specifications and surveys with respect to all Properties.
(b) Regulatory. Investigate all zoning, code and
governmental requirements, including the review of certificates of
occupancy and licenses, all which shall be provided by the Chrysson
Parties.
(c) Environmental. Review and perform Phase I and Phase II
audits and other environmental studies. If, in Xxxxxx-Xxxxx'x sole
discretion, a Phase II investigation is warranted with respect to some
or all of the Properties, the Investigation/Due Diligence Period will
automatically extend by thirty (30) days (it being understood that the
due diligence review with respect to the non-Phase II properties shall
be deemed completed at the end of the initial 60-day Investigation/Due
Diligence Period).
(d) Title. Review preliminary title reports and surveys.
(e) Lease and Tenant Information. Review copies of leases,
rental agreements and contracts, together with any modifications or
amendments therein pertaining to the operation of the Properties.
(f) Books and Records. Obtain the Chrysson Financial
Statements (at Xxxxxx- Xxxxx'x expense); verify financial information
from all accounting books and records since the inception of the
Contributors' ownership; review any other information and documents in
the Contributors' possession or control and pertaining to the
Contributors' ownership and operation of the Properties including all
tax records (collectively, the "Records").
Within ten (10) days after the execution of this Master Agreement, the
Chrysson Partnerships agree to deliver to Xxxxxx-Xxxxx true and correct copies
of the following documents, to the extent not delivered prior to the date of
this Master Agreement: (i) soil and engineering studies and other reports
relating to the Properties; (ii) all warranties and guaranties reasonably
available from any contractors, subcontractors, vendors and suppliers relating
to their performance, quality of workmanship and quality of materials supplied
in connection with the construction, development, installation and operation of
any and all fixtures, equipment, items of personal property and improvements
located in or used in connection with the Properties.
The Chrysson Parties and each Contributor covenants and agrees that it
shall provide Xxxxxx- Xxxxx with access to all Records in the Chrysson Parties'
or the Contributors' possession and control. Xxxxxx-Xxxxx shall conduct all of
its property inspections in a manner not disruptive to the tenants or to the
operation of the Properties.
After its investigation, if Xxxxxx-Xxxxx, in its sole discretion (i)
determines that any Initial Property is not satisfactory for purchase or
operation, then Xxxxxx-Xxxxx may terminate this Master Agreement and (ii)
determines that any Planned Property is not satisfactory for purchase or
operation, then Xxxxxx-Xxxxx shall have no obligation to purchase such Planned
Property.
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The Chrysson Parties and each Contributor will cooperate with
Xxxxxx-Xxxxx before and after Initial Closing and any Subsequent Closing in
providing such information as Xxxxxx-Xxxxx may reasonably require to prepare its
proxy material and Form 8-K filings and such other reports and filings as may be
required by any governmental authority, AMEX or applicable exchange; provided
that the Chrysson Parties shall have no obligation to obtain at their expense
audited financial statements of the Chrysson Partnerships.
9.3 Conditions to Closing of Planned Properties. In addition to the
other preconditions detailed herein, each of the following shall be a condition
as described below to the obligation to close the transactions contemplated
hereby with respect to the purchase of a Planned Property:
(a) Performance of Properties. Xxxxxx-Xxxxx shall have no
obligation to close the transactions contemplated hereby with respect
to a Planned Property unless each such Property has met the performance
standards set forth at EXHIBIT 9.3(A) (the "Planned Property
Performance Standards"). If any Planned Property is not purchased
pursuant to this Section 9.3(a), "Planned Property" or "Planned
Properties" as used herein shall mean only those Planned Properties to
be purchased.
(b) Refinancing of Loans. Xxxxxx-Xxxxx shall have no
obligation to purchase a Planned Property if Xxxxxx-Xxxxx determines
that it is unable to refinance all of the Outstanding Chrysson Debt
Financing related to a Planned Property on terms reasonably acceptable
to the Board of Directors of BNP.
(c) Termination of Management Contracts. Xxxxxx-Xxxxx
shall have no obligation to purchase a Planned Property if Xxxxxx-Xxxxx
does not have the unconditional right to manage such Planned Properties
as of its respective acquisition date. Any costs associated with
terminating any management contracts shall be at the Contributors'
expense.
(d) Construction and Lease-up. Xxxxxx-Xxxxx shall have no
obligation to purchase a Planned Property unless the construction and
lease-up of the Planned Property has been completed within the time
frame set forth at SCHEDULE 9.3(D).
(e) No Material Adverse Change. Xxxxxx-Xxxxx shall have no
obligation to purchase a Planned Property unless the condition,
financial or otherwise, of the Property, or the business prospects of
the Property are as the Contributors represented and projected that
they would be. It is understood that the directors of Xxxxxx-Xxxxx
(other than those who may be Contributors or their Affiliates), at
their sole discretion exercised in good faith, will determine whether
or not the conditions of this Section 9.3(e) have been satisfied.
(f) Covenants, Representations and Warranties.
Xxxxxx-Xxxxx shall have no obligation to purchase a Planned Property
unless (i) there has been no breach by the Contributors of any covenant
in this Master Agreement or in an Exchange Option Agreement and (ii)
all of the representations and warranties of the Contributors set forth
herein with respect to an Initial Property remain true with respect to
a Planned Property, with the related
26
schedules updated or added by the Contributors through the Subsequent
Closing Date. It is understood that Xxxxxx-Xxxxx will have no
obligation to purchase a Planned Property if such updated or additional
schedules contain material information causing the directors of Xxxxxx-
Xxxxx (other than those who may be Contributors or their Affiliates),
at their sole discretion exercised in good faith, to determine that the
purchase of the Planned Property on the terms set forth herein and in
the Exchange Option Agreement is no longer in the best interest of
Xxxxxx-Xxxxx.
(g) Title and Survey. Xxxxxx-Xxxxx shall have no
obligation to purchase a Planned Property if the Contributors cannot
convey good and marketable title to the Planned Property, which shall
be free and clear of all liens, defects and encumbrances, except
"Permitted Liens" or if the Contributors do not convey unencumbered
title to all personal property, including but not limited to all
personalty, fixtures, furniture, equipment and communication
infrastructure, including TV cables, used in the operation of the
Planned Property. Xxxxxx-Xxxxx shall pay for the preliminary title
report and the premium for an ALTA "extended coverage" Owner's Policy.
Xxxxxx-Xxxxx shall pay the costs of recording the deed and shall be
responsible for ordering the ALTA survey (at Xxxxxx-Xxxxx'x costs and
in a form required by Xxxxxx-Xxxxx and its mortgage lender).
Additionally, Xxxxxx-Xxxxx and the Contributors are each responsible
for their respective legal fees with respect to the purchase of a
Planned Property. Any fees associated with the assumption by
Xxxxxx-Xxxxx or the prepayment or retirement of debt encumbering any of
the Planned Properties (to the extent such fees exceed those specified
at SCHEDULE 3.2(II) with respect to any Property), property transfer
and documentary taxes, all other costs related to the transfer of the
Planned Properties and escrow fees shall be paid by the Contributors
and shall be a reduction in the Contribution Price.
(h) Adequate Warranty. Xxxxxx-Xxxxx shall have no
obligation to purchase a Planned Property if such purchase is not
accompanied by warranties from the developer that are customary in
connection with the purchase of similar, newly constructed properties.
(i) Opinion to Xxxxxx-Xxxxx. Xxxxxx-Xxxxx shall have no
obligation to purchase a Planned Property if Xxxxxx-Xxxxx and BNP have
not received an opinion of Counsel to the Chrysson Parties
substantially in the form of EXHIBIT 9.1(I) attached hereto.
(j) Opinion to Chrysson. The Chrysson Parties shall have
no obligation to sell a Planned Property if the Chrysson Parties have
not received an opinion of counsel to Xxxxxx-Xxxxx and BNP
substantially in the form of EXHIBIT 9.1(J) attached hereto.
(k) Performance of Obligations. The Chrysson Partnerships
shall have performed all of its obligations under the Contracts, the
Leases, the Permitted Liens and any mortgages relating to the Planned
Properties.
(l) Payment of Charges and Assessments. All charges and
assessments (other than ad valorem property taxes for the year of
Closing) for sewer, water, streets, sidewalks,
27
and similar improvements by any governmental authority affecting the
Planned Properties, to the extent due and payable prior to the Closing,
shall have been paid.
(m) Authorizations. Xxxxxx-Xxxxx shall have received by
the Closing all necessary and appropriate licenses, permits, approvals
and authorizations from all governmental agencies, authorities, boards,
commissions, departments and bodies having or claiming to have
jurisdiction over the Planned Properties; provided that Xxxxxx-Xxxxx
has used its best efforts to obtain the Authorizations.
(n) Zoning. No actual or threatened easement, zoning
ordinance or use regulation, statute, ordinance, law, juridical
decision, official or unofficial policy, restriction or reservation or
proposed shall prohibit or impair (and there shall be no pending or
threatened litigation which may prohibit or impair) Xxxxxx-Xxxxx'x use
and operation of the Planned Properties.
Xxxxxx-Xxxxx and the Contributors agree that they will consummate the
transaction contemplated hereby with respect to a Planned Property within 30
days of the satisfaction of each of the conditions set forth in this Section
9.3.
9.4 Closing Documents. At Closing Chrysson Partnerships shall
execute and deliver the following documents to Xxxxxx-Xxxxx:
(a) Title Insurance Affidavit. Any affidavit required by
the title company to remove the standard printed exceptions from the
title policy and the loan policy. Additionally, Chrysson Partnerships
shall discharge in full any and all indebtedness underlying such
exceptions at or before the Closing.
(b) Letters to Tenants. Letters addressed to the Tenants
and signed by Chrysson Partnerships, advising the Tenants of the
Closing of the Transactions and Xxxxxx-Xxxxx'x right to receive the
rents under their respective Leases.
(c) Other Documents. Such other documents as may be
reasonably required to close the Transactions contemplated by this
Master Agreement.
ARTICLE X
INDEMNITY
10.1 Representations and Warranties of each of the Contributors. Each
of the Contributors hereby agrees, for himself and his successors and assigns,
to indemnify, defend and hold both Xxxxxx-Xxxxx and BNP harmless from and
against any and all damage, cause of action, action, proceeding, expense, loss,
cost, claim or liability (each a "Claim") suffered or incurred by either
Xxxxxx-Xxxxx or BNP as a result of any of the following: any untruth, inaccuracy
or breach of any of the representations, warranties or covenants made by a
Chrysson Party herein. It is the express intention and agreement of the parties
that the foregoing indemnity shall survive the
28
consummation of the transactions contemplated in this Master Agreement.
Notwithstanding any other provision herein and except for Claims made regarding
a breach of the covenants and warranties set forth at Sections 4.7 and 4.8, no
Contributor shall have any liability for any Claim that is asserted more than
twelve (12) calendar months after the Closing Date (except with respect to any
Claim asserted because of the untruth, inaccuracy or breach of Section 6.13 (a
"Tax Claim"), the time limitation for such a claim shall be the same as the
statute of limitations applicable to the Tax Claim).
10.2 Scope of Contributors Indemnity. Notwithstanding anything to the
contrary contained in this Master Agreement, the maximum liability of each of
the Contributors under Section 10.1 shall not exceed the dollar value of the
Units issued (determined at the time of issuance) to such Contributor at Closing
attributable to the Chrysson Partnership through which the liability arises (the
"Maximum Indemnity Amount"). The Maximum Indemnity Amount shall be calculated at
the time a Claim is paid, without regard to each of the Contributors' transfer,
sale, assignment, surrender, hypothecation or other disposition of each of the
Contributors' Units (or the corresponding Shares of such Units) after Closing.
10.3 Arbitration. Any dispute, claim or controversy between
Xxxxxx-Xxxxx and any Contributor as to liability of any Contributor above shall
be settled by arbitration in accordance with this Section 10.3. Each of
Xxxxxx-Xxxxx and the Contributors (by a vote of majority thereof) shall appoint
an arbitrator, and the two arbitrators so appointed shall promptly select a
third arbitrator. Within thirty (30) days of the completion of such
appointments, the parties shall submit to arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association. The place
of arbitration shall be Charlotte, North Carolina. Notwithstanding anything to
the contrary herein, the arbitrators are not empowered to award damages in
excess of compensatory damages and each party hereby irrevocably waives any
right to recover such damages with respect to any dispute or controversy
resolved by arbitration under this Section 10.3. Judgment on the award rendered
by the arbitrators may be entered in any court of competent jurisdiction and
shall be binding upon the parties.
Except in the case of Tax Claims, any Claim of which notice is
delivered to a Contributor by Xxxxxx-Xxxxx shall be submitted to arbitration
within eighteen (18) months of the date hereof unless such Claim involves the
liquidation of a claim held by or asserted by a third party in which case
arbitration proceedings may be instituted at any time up to six months following
the final determination or liquidation of such Claim by such third party.
10.4 Representations and Warranties of Xxxxxx-Xxxxx. Each of
Xxxxxx-Xxxxx and BNP hereby agrees, for itself and its successors and assigns,
to indemnify, defend and hold each Contributor harmless from and against any and
all damage, cause of action, expense, loss, cost, claim or liability (each a
"Claim") suffered or incurred by such Contributor as a result of any of the
following: any untruth, inaccuracy or breach of any of the representations,
warranties or covenants made by Xxxxxx-Xxxxx or BNP herein. It is the express
intention and agreement of the parties that the foregoing indemnity shall
survive the consummation of the transactions contemplated in this Master
Agreement; provided, however, that neither Xxxxxx-Xxxxx nor BNP shall have any
liability for expenses, damages, losses, costs or liability incurred by any
Contributor with respect to any
29
Claim described in this Section 10.4 which arises or is asserted more than
twelve (12) calendar months after the Closing Date.
10.5 Notice to Indemnitors. Any party entitled to indemnification under
this Master Agreement (the "Indemnified Party") shall, within ten (10) days
after the receipt of notice of the assertion or imposition of any claim (but in
no event later than ten (10) days prior to the date any response or answer is
due in any proceeding) in respect of which indemnity may be sought from the
party against whom an indemnity obligation is asserted pursuant to this Master
Agreement (the "Indemnifying Party"), notify the Indemnifying Party in writing
of the receipt of existence of such claim. The omission of the Indemnified Party
to notify the Indemnifying Party of any such claim shall not relieve the
Indemnifying Party from any liability in respect of such claim which it may have
to the Indemnified Party on account of this Master Agreement, except, however,
the Indemnifying Party shall be relieved of liability to the extent that the
failure so to notify (a) shall have caused prejudice to the defense of such
claim, or (b) shall have increased the costs or liability of the Indemnifying
Party by reason of the inability or failure of the Indemnifying Party (because
of the lack of prompt notice from the Indemnified Party) to be involved in any
investigations or negotiations regarding any such claim, nor shall it relieve
the Indemnifying Party from any other liability which it may have to the
Indemnified Party. In case any such claim shall be asserted or commenced against
an Indemnified Party and it shall notify the Indemnifying Party thereof, the
Indemnifying Party shall be entitled to participate in the negotiation or
administration thereof and, to the extent it may wish, to assume the defense
thereof with counsel reasonably satisfactory to the Indemnified Party, and,
after notice from the Indemnifying Party to the Indemnified Party of its
election so to assume the defense thereof, which notice shall be given within
thirty (30) days of its receipt of such notice from such Indemnified Party, the
Indemnifying Party will not be liable to the Indemnified Party hereunder for any
legal or other expenses subsequently incurred by the Indemnified Party in
connection with the defense thereof other than reasonable costs of
investigation. In the event that the Indemnifying Party does not wish to assume
the defense, conduct or settlement of any claim, the Indemnified Party shall not
settle such claim without the written consent of the Indemnifying Party, which
consent shall not be unreasonably withheld or delayed. Nothing in this Section
10.5 shall be construed to mean that either Xxxxxx-Xxxxx or any of the
Contributors shall be responsible for any obligations, acts or omissions of the
other prior to Closing, except for those obligations and liabilities expressly
assumed by Xxxxxx-Xxxxx or the Contributors pursuant to this Master Agreement.
ARTICLE XI
MISCELLANEOUS
11.1 Notices. All notices and demands which either party is required or
desires to give to the other shall be given in writing by personal delivery,
express courier service, certified mail, return receipt requested, or by
telecopy to the address or telecopy number set forth below for the respective
parties. All notices and demands so given shall be effective upon the delivery
of the same to the party to whom notice or a demand is given, if personally
delivered, or if sent by telecopy. If notice is by deposit with an express
courier service, it shall be effective on the day following such deposit or, if
notice is sent by certified mail, return receipt requested, it shall be
effective upon receipt.
30
NOTICES TO THE CHRYSSON PARTIES:
To the Chrysson Parties, to the addressee indicated on
SCHEDULE 11.1 attached hereto.
with copies to:
Xxxxxx X. Xxxxxxxxx
Xxxxxx Tackabery Xxxxx & Xxxxxxxxx, P.A.
Xxxxxxxxx Xxxxx Xxxxxxxx
Xxxxx 000
000 Xxxxx Xxxxxxxxx Xxxx
Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000-0000
Telephone: (910)
Telefax: (910)
NOTICES TO XXXXXX-XXXXX:
XXXXXX-XXXXX PROPERTIES, INC.
0000 Xxx Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telefax: (000) 000-0000
with copies to:
XXXXXX &BIRD LLP
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telefax: (000) 000-0000
No notice required or permitted under this Master Agreement need be sent to any
Chrysson Party in more than one legal capacity unless such notice relates to
such Chrysson Party in that legal capacity.
11.2 Counterparts. This Master 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.
11.3 Severability. Any provision of this Master Agreement which is
prohibited or unenforceable in any jurisdiction shall as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision on any other jurisdiction.
31
11.4 Assigns. This Master Agreement shall be binding upon and inure to
the benefit of any and all successors, assigns, or other successors in interest
of BNP and Xxxxxx-Xxxxx. This Master Agreement shall be binding upon and inure
to the benefit of any and all respective successors, assigns, personal
representatives, executors, or other successors in interest of the Chrysson
Parties; provided, however, that none of the Chrysson Parties shall assign its
rights or delegate its obligations hereunder without the prior written consent
of Xxxxxx-Xxxxx, which may be withheld for any reason. Neither Xxxxxx-Xxxxx nor
BNP shall not assign its rights or delegate its obligations hereunder without
the prior written consent of the Chrysson Parties. This Master Agreement shall
not confer any rights or remedies upon any person or entity other than
Xxxxxx-Xxxxx, BNP, the Chrysson Parties and their respective successors and
permitted assigns.
11.5 Public Announcement. Except as otherwise required by law, none of
the parties hereto may make public announcements with respect to the
transactions contemplated by this Master Agreement without the approval of the
other parties, which approval may be withheld for any reason.
11.6 Confidentiality Each party hereto shall ensure that all
confidential information which such party or any of its respective officers,
directors, employees, counsel, agents or accountants may now possess or may
hereafter create or obtain relating to the financial condition, results of
operations, business, properties, assets, liabilities or future prospects of the
other party, any Affiliate or subsidiary of the other party or any tenant,
customer or supplier of such other party, or any such Affiliate or subsidiary,
shall not be published, disclosed or made accessible by any of them to any other
person or entity at any time or used by any of them, in each case without the
prior written consent of the other party; provided, however, that the
restrictions of this sentence shall not apply: (i) to the extent that disclosure
may otherwise be required by law; (ii) to the extent such information shall have
otherwise become publicly available; or (iii) to disclosure by or on its behalf
to its lender(s) for the purpose of obtaining financing in connection with the
acquisition of the Properties. In the event this Master Agreement is terminated,
each party promptly will deliver or certify destruction to the other party all
documents, work papers and other material (and any reproductions thereof)
obtained by each party or on its behalf from such other party or its Affiliates
or subsidiaries in connection with the subject transaction, whether so obtained
before or after the execution hereof, and will itself not use any information so
obtained and will use its good faith and diligent efforts to have any
information so obtained kept confidential and not used in any way detrimental to
such other party, subject to the limitations set forth in this Section 11.6
above.
11.7 Remedies. In the event that any party defaults or fails to perform
any of the conditions or obligations of such party under this Master Agreement
or any other agreement, document or instrument executed in connection with this
Master Agreement, or in the event that any such party's representations or
warranties contained herein or in any such other agreement, document or
instrument are not true and correct as of the date hereof and as of the Closing
Date, any other party shall be entitled to exercise any and all rights and
remedies available to it by or pursuant to this Master Agreement, documents or
instruments contemplated hereby or at law (statutory or common) or in equity
subject to the limitation on liability set forth herein; provided, however, that
in the event of a Closing of the transactions contemplated by this Master
Agreement, the rights and remedies of each party shall be limited to the rights
contained in Article X of this Master Agreement.
32
11.8 Captions. The captions and headings set forth in this Master
Agreement are for convenience of reference only and shall not be construed as a
part of this Master Agreement.
11.9 Exhibits and Schedules. All exhibits and schedules referred to in
this Master Agreement and attached hereto shall be deemed and construed as part
of this Master Agreement and for all purposes all such exhibits and schedules
are hereby specifically incorporated herein by reference.
11.10 Merger Clause. This Master Agreement and the Exchange Option
Agreement contain the final, complete and exclusive statement of the agreement
among the parties with respect to the transactions contemplated herein and
therein, and all prior or contemporaneous oral and all prior written agreements
with respect to the subject matter hereof are merged herein.
11.11 Amendments and Waiver. No change, amendment, qualification,
cancellation or termination hereof shall be effective unless in writing and duly
executed by each of the parties hereto. No failure of any party to enforce any
provisions hereof or to resort to any remedy or to exercise any one or more of
alternate remedies and no delay in enforcing, resorting to or exercising any
remedy shall constitute a waiver by that party of its right subsequently to
enforce the same or any other provision hereof or to resort to any one or more
of such rights or remedies on account of any such ground then existing or which
may subsequently occur.
11.12 Agent of Chrysson Partnerships. Each of the Chrysson Partnerships
hereby irrevocably appoint Xxxx X. Xxxxxxxx and Xxxxx X. Xxxxxxxx, as its agents
for the purposes of consummating the Transactions and otherwise carrying out the
terms of this Master Agreement, and taking for such entity all steps deemed
necessary or advisable by Xxxx Xxxxxxxx or Xxxxx Xxxxxxxx or, in such capacity,
for carrying out the terms of this Master Agreement. The Chrysson Partnership
that owns the Allerton apartment community hereby irrevocably appoints Xxxx X.
Xxxxxxxx, Xxxxx X. Xxxxxxxx and Xxxxx Xxxx, as its agent for the purposes of
consummating the Transactions and otherwise carrying out the terms of this
Master Agreement, and taking for such entity all steps deemed necessary or
advisable by Xxxx X. Xxxxxxxx, Xxxxx X. Xxxxxxxx and Xxxxx Xxxx or, in such
capacity, for carrying out the terms of this Master Agreement. Each of the
Chrysson Partnerships acknowledges and agrees that Xxxxxx-Xxxxx and BNP,
respectively, and their respective partners, officers, directors, employees,
agents, advisors, accountants, and attorneys, may rely and act upon the action
or omission to act of these appointed agents in carrying out the terms of this
Master Agreement or in binding any of the Chrysson Partnerships to the terms of
this Master Agreement in any way.
11.13 Governing Laws. This Master Agreement shall be governed by and
construed in accordance with the internal laws of the State of North Carolina
and of the United States of America.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement by
their hands and under seal affixed hereto as of the date and year first above
written.
XXXXXX-XXXXX PROPERTIES, INC.
ATTEST:
By: /s/ D. Xxxxx Xxxxxxxxx
-----------------------------
President
/s/ Xxxxxx X. Xxxxx
--------------------
Assistant Secretary
[CORPORATE SEAL]
XXXXXX-XXXXX LIMITED PARTNERSHIP
By: Xxxxxx-Xxxxx Properties, Inc.,
General Partner
By: /s/ D. Xxxxx Xxxxxxxxx
-------------------------------
Title: President
34
Separate signature page to Master Agreement of Merger and Acquisition.
PEPPERSTONE ASSOCIATES, LLC
/s/ Xxxx X. Xxxxxxxx
--------------------
Xxxx X. Xxxxxxxx, Managing Member
/s/ Xxxxx X. Xxxxxxxx,
--------------------------
Xxxxx X. Xxxxxxxx, Managing Member
35
Separate signature page to Master Agreement of Merger and Acquisition.
SAVANNAH PLACE ASSOCIATES, LLC
/s/ Xxxx X. Xxxxxxxx
---------------------
Xxxx X. Xxxxxxxx, Managing Member
/s/ Xxxxx X. Xxxxxxxx,
-----------------------
Xxxxx X. Xxxxxxxx, Managing Member
36
Separate signature page to Master Agreement of Merger and Acquisition.
PLEASANT RIDGE ASSOCIATES, LLC
/s/ Xxxx X. Xxxxxxxx
---------------------
Xxxx X. Xxxxxxxx, Managing Member
/s/ Xxxxx X. Xxxxxxxx,
-----------------------
Xxxxx X. Xxxxxxxx, Managing Member
37
Separate signature page to Master Agreement of Merger and Acquisition.
WATERFORD PLACE ASSOCIATES, LLC
/s/ Xxxx X. Xxxxxxxx
-----------------------
Xxxx X. Xxxxxxxx, Managing Member
/s/ Xxxxx X. Xxxxxxxx,
-------------------------
Xxxxx X. Xxxxxxxx, Managing Member
38
Separate signature page to Master Agreement of Merger and Acquisition.
BROOKFORD PLACE ASSOCIATES, INC.
/s/ Xxxx X. Xxxxxxxx
--------------------
Xxxx X. Xxxxxxxx, Managing Member
/s/ Xxxxx X. Xxxxxxxx,
---------------------
Xxxxx X. Xxxxxxxx, Managing Member
39
Separate signature page to Master Agreement of Merger and Acquisition.
SUMMERLYN PLACE ASSOCIATES, INC.
/s/ Xxxx X. Xxxxxxxx
-----------------------
Xxxx X. Xxxxxxxx, Managing Member
/s/ Xxxxx X. Xxxxxxxx,
-------------------------
Xxxxx X. Xxxxxxxx, Managing Member
40
Separate signature page to Master Agreement of Merger and Acquisition.
ABBINGTON PLACE ASSOCIATES, INC.
/s/ Xxxx X. Xxxxxxxx
---------------------
Xxxx X. Xxxxxxxx, Managing Member
/s/ Xxxxx X. Xxxxxxxx,
-----------------------
Xxxxx X. Xxxxxxxx, Managing Member
41
Separate signature page to Master Agreement of Merger and Acquisition.
/s/ Xxxx X. Xxxxxxxx
---------------------
Xxxx X. Xxxxxxxx
42
Separate signature page to Master Agreement of Merger and Acquisition.
/s/ Xxxxx X. Xxxxxxxx
--------------------------
Xxxxx X. Xxxxxxxx
43
Separate signature page to Master Agreement of Merger and Acquisition.
/s/ W. Xxxxxxx Xxxxxx
---------------------
W. Xxxxxxx Xxxxxx
44
Separate signature page to Master Agreement of Merger and Acquisition.
/s/ Xxxxxxx X. Xxxxxxx
----------------------
Xxxxxxx X. Xxxxxxx
45
Separate signature page to Master Agreement of Merger and Acquisition.
/s/ Xxxxx X. Xxxx
-----------------------
Xxxxx X. Xxxx
46
LIST OF SCHEDULES AND EXHIBITS
Schedule 1 Chrysson Partnerships
Schedule 1-2 Initial Properties
Schedule 1-3 Planned Properties
Schedule 1-4 Descriptive Property Exhibit
Schedule 3.1 Allocated Value of Properties
Schedule 3.2(i) Outstanding Chrysson Debt Financing
Schedule 3.2(ii) Prepayment Penalties
Schedule 4.2 List of Brokers
Schedule 4.6 Personal Property of Chrysson Parties
Schedule 5.1 Required Consents
Schedule 5.3 Conflicts
Schedule 6.2A Schedule of Leases
Schedule 6.2B Lease Defaults
Schedule 6.2C Lease Consents
Schedule 6.3 Contracts
Schedule 6.4 Assumed Liabilities
Schedule 6.5 Insurance
Schedule 6.7 Claims or Litigation
Schedule 6.11 Condemnation and Moratoria
Schedule 6.13 Taxes
Schedule 6.14 Management and Leasing Agreements
47
Schedule 6.15 Operating Agreements - Exceptions to Termination
Schedule 9.3(d) Schedule of Construction and Lease-Up
Schedule 11.1 Names and Addresses of Chrysson Parties
Exhibit 7.3 Partnership Agreement
Exhibit 9.1(h) Initial Properties Performance Standards
Exhibit 9.1(i) Form of Opinion of Counsel to Chrysson Parties
Exhibit 9.1(j) Form of Opinion of Counsel to Xxxxxx-Xxxxx
Exhibit 9.3(a) Planned Properties Performance Standards
Note: Other than Exhibit 7.3, which is Exhibit 10.9 to this registration
statement, the Schedules and Exhibits to this Master Agreement of Merger and
Acquisition are not included in this registration statement but will be provided
upon request.
48
