AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of
Merger, dated as of October 22, 2007, is entered into and
adopted by and between Regency North Associates, L.P., a
Missouri limited partnership (hereinafter “the
Partnership”) and Regency North Acquisition, LLC, a
Missouri limited liability company (hereinafter “the
Company”).
WHEREAS ,
the Partnership is duly organized as an existing limited
partnership under the laws of the state of
Missouri. KelCor, Inc., a Missouri corporation, is
the sole general partner of the Partnership; and
WHEREAS ,
the Partnership is engaged in the ownership and operation of
The Regency North Apartments in Kansas City, Missouri;
and
WHEREAS ,
the Company is duly organized as an existing limited
liability company under the laws of the state of
Missouri. Maxus Operating Limited Partnership
(“MOLP”), a Delaware limited partnership is the
sole member of the Company. Maxus Realty Trust,
Inc. (the “REIT”), a Missouri corporation, is the
majority owner of MOLP; and
WHEREAS ,
the Partnership desires to merge into the Company in order to
provide liquidity to limited partners of the Partnership with
the Partnership’s existence being canceled by the
merger.
NOW
THEREFORE, in consideration of the mutual
representations, covenants and conditions contained herein,
the parties agree as follows:
Subject
to the terms and conditions in this Agreement and Plan of
Merger, on the effective date as hereinafter provided, and
pursuant to MO. Rev. Stat. Sec. 347.700 to 347.735, the
Partnership shall be merged in, with and into the Company and
the Company shall be the surviving entity.
II.
Terms and Conditions of Merger
The
terms and conditions of the merger, the mode of carrying the
merger into effect, and the manner and basis of converting
partnership interests of the Partnership into Operating Units
of MOLP is as follows:
A. Vote. The
Agreement and Plan of Merger has been approved by the general
partner and by more than 50% of the Total Outstanding Partnership
Units. The approval of the Board of Trustees of the REIT
and the General Partner of MOLP was obtained on October 15,
2007. Articles of Merger shall be filed with the
Secretary of State of Missouri.
B. Effective
date. The merger shall become effective on the date said
Articles of Merger shall be so filed with the Secretary of State of
Missouri; provided, however, the merger is subject to the
lender’s consent to the Company’s assumption of the
Partnership’s $5,250,000 mortgage loan secured by The Regency
North Apartments and shall not be deemed effective until the
Company obtains’ the lender’s written consent to such
assumption.
C. Manner
of Conversion.
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1.
The partners of the Partnership will receive either cash or upon
election and qualification, Operating Units in MOLP, based on the
percentage interest of such partners in the
Partnership.
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2. The
merger consideration equals
$6,178,348.
Each
Limited Partner of the Partnership will receive
either
$1,500 or 100 Operating Units of MOLP for
each
Partnership Unit owned (2.9687%) based on
his/her
Partnership percentage interest. For
example,
each
limited partner in the Partnership will receive
consideration
(either in cash or Operating Units of
MOLP)
equal to $1,500 per Partnership Unit owned
(2.9687%).
3. Limited
partners in the Partnership have the option
of receiving Operating
Units in MOLP redeemable into
shares of stock in the
REIT. Such limi
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