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AGREEMENT
AND PLAN OF MERGER
This
AGREEMENT AND PLAN OF MERGER, dated as of December 4, 2009 (this “Agreement”), is by
and among (a) ERI/PRESIDENTIAL LLC, a Massachusetts limited liability company
(the “Parent”),
(b) ERI/PRESIDENTIAL MERGER SUB LIMITED PARTNERSHIP, a Maryland limited
partnership (“Merger Sub”), (c)
PRESIDENTIAL ASSOCIATES I LIMITED PARTNERSHIP, organized under the laws of the
State of Maryland (the “Partnership”), and
(d) WINTHROP FINANCIAL CO., INC. (the “Managing General Partner”), as the
managing general partner of the Partnership.
WHEREAS, the parties to this
Agreement have agreed to consummate the business combination and other
transactions provided for herein, which each of the parties hereto deems to be
advisable and in the best interests of their respective partners or
stockholders, as the case may be;
WHEREAS, §10-208 of the
Maryland Revised Uniform Limited Partnership Act (the “Act”) permits
Maryland limited partnerships to merge with other limited
partnerships;
WHEREAS, Merger Sub and the
Partnership now desire to merge, following which the Partnership shall be the
surviving entity;
NOW THEREFORE, in
consideration of the premises, and the mutual covenants and agreements herein
contained, the parties hereto agree as follows:
ARTICLE
I
THE
MERGER
1.01 Surviving
Entity. In accordance with the provisions of this Agreement
and the Act, at the Effective Time (as defined below), Merger Sub shall be
merged with and into the Partnership (the “Merger”), and the
separate legal existence of Merger Sub shall cease. The Partnership
shall be the surviving entity in the Merger and shall continue its legal
existence under the laws of the State of Maryland under the name it possesses
immediately prior to the Effective Time (i.e., Presidential Associates I Limited
Partnership).
1.02 Effect of the
Merger.
(a) Upon the
Effective Time, for all purposes of law, all of the rights, privileges and
powers of Merger Sub and the Partnership shall have merged, and all their
property, real, personal and mixed, and all the debts due on whatever account to
any of them, as well as all other things and other causes of action belonging to
any of them, shall be transferred to, vested in and devolve on the Partnership
as the surviving entity of the Merger, without further act or deed, and all
claims, demands, property and other interest shall be the property of the
Partnership, and the title to all real estate vested in either of Merger Sub or
the Partnership shall not revert or be in any way impaired by reason of the
Merger, but shall be vested in the Partnership.
(b) Upon the
Effective Time, all rights of creditors and all liens upon any property of
either of Merger Sub or the Partnership shall be preserved unimpaired, and all
debts, liabilities and duties of each of Merger Sub and the Partnership that
have merged shall thenceforth attach to the Partnership, and may be enforced
against it as the surviving entity to the same extent as if said debts,
liabilities and duties had been incurred or contracted by it.
1.03 Additional Actions. If,
at any time after the Effective Time, the Partnership shall consider or be
advised that any deeds, bills of sale, assignments, assurances or any other
actions or things are necessary or desirable to vest, perfect or confirm of
record or otherwise in the Partnership its right, title or interest in, to or
under any of the rights, properties or assets of Merger Sub acquired or to be
acquired by the Partnership as a result of, or in connection with, the Merger or
to otherwise carry out this Agreement, the general partners of the Partnership
shall and will be authorized to execute and deliver, in the name and on behalf
of Merger Sub and the Partnership or otherwise, all such deeds, bills of sale,
assignments and assurances and to take and do, in the name and on behalf of
Merger Sub and the Partnership or otherwise, all such other actions and things
as may be necessary or desirable to vest, perfect or confirm any and all right,
title and interest in, to and under such rights, properties or assets in the
Partnership or to otherwise carry out this Agreement.
1.04 Effective Time; Conditions. In
the event of, and as soon as is practicable after, the satisfaction or waiver of
the conditions set forth in Article VI hereof, the parties hereto will cause the
Merger to be consummated by filing, with the State Department of Assessments and
Taxation of Maryland (the “SDAT”), Articles of
Merger in substantially the form attached hereto as Exhibit A (the time
of acceptance for record of such filing by the SDAT or such later time (not to
exceed thirty (30) days thereafter) as is specified in such Articles of Merger
being the “Effective
Time”) under the Act. Contemporaneously with the filing
referred to in this Section 1.04, a closing (the “Closing”) will be
held at 10:00 a.m. (Eastern Time) at the offices of Equity Resource Investments,
LLC, 1280 Massachusetts Ave., Cambridge, Massachusetts 02138 or at such other
time and location as the parties may establish for the purpose of confirming all
the foregoing. The date of the Closing is referred to as the “Closing
Date.”
1.05 Effect on Outstanding
Interests.
(a) Partnership Interests
in Merger Sub. By
virtue of the Merger, automatically and without any action on the part of the
holder thereof, (i) the limited partnership interest(s) in Merger Sub
outstanding immediately prior to the Effective Time shall be converted into a
number of Limited Partnership Units equal to the total number of Limited
Partnership Units outstanding at the Effective Time and (ii) general
partnership interest(s) in Merger Sub outstanding immediately prior to the
Effective Time shall be terminated.
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(b) Partnership Interests in the
Partnership.
(i) Limited Partnership
Units. By virtue of the Merger, automatically and without any
action on the part of the holder thereof, each Limited Partnership Unit
outstanding immediately prior to the Effective Time, other than Dissenting Units
(as defined in Section 1.07 below), shall be cancelled and extinguished and be
automatically converted into, and become the right to receive, and each Eligible
Limited Partner shall be entitled to receive, subject to the requirements set
forth in Section 1.08, from Parent or Merger Sub, an amount per unit in cash
equal to the Limited Partnership Unit Amount.
(ii) General Partnership Units. By virtue of
the Merger, automatically and without any action on the part of the holder
thereof, the managing general partnership interests in the Partnership and the
other remaining general partnership interests outstanding immediately prior to
the Effective Time (collectively the “General Partnership Interests”) shall
remain outstanding immediately after the Effective Time as General Partnership
Interests in the Partnership, as they existed immediately prior to the Effective
Time, and no payment shall be made with respect thereto.
(iii) Termination of
Rights. After the Effective Time, holders of Limited
Partnership Units will cease to be, and will have no rights as, limited partners
of the Partnership, and such holders’ rights will consist only of, (A) in the
case of Limited Partnership Units other than Dissenting Units, the right to
receive the consideration provided for in this Section 1.05 in respect of such
units, and (B) in the case of Dissenting Units, the rights afforded to the
holders thereof under the applicable provisions of the
Act. Notwithstanding anything to the contrary in this Agreement,
after the Effective Time, none of the Partnership, Parent or the Managing
General Partner shall be liable to any holders of Limited Partnership Units for
any amount properly paid to a public official pursuant to any applicable
abandoned property, escheat or similar law.
(c) Dissenting Units. The
holders of Dissenting Units, if any, shall be entitled to payment for such units
only to the extent permitted by and in accordance with the provisions of the
Act; provided, however, that if, in
accordance with the applicable provisions of the Act, any holder of Dissenting
Units shall forfeit such right to payment of the fair value of such units, such
holder shall be bound by the terms of the Merger and such units shall thereupon
be deemed to have been converted into and to have become exchangeable for, as of
the Effective Time, the right to receive the Merger Consideration described in
Section 1.05(b)(i) hereof (and the holder of such units may be treated as an
Eligible Limited Partner hereunder).
(d) Tax
Treatment. For federal income tax purposes, the parties to
this Agreement agree to treat the Merger Consideration paid to holders of
Limited Partnership Units as consideration paid by Merger Sub and/or Parent to
purchase the Limited Partnership Units outstanding immediately prior to the
Effective Time, other
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(e) than
Limited Partnership Units held by persons who perfect their dissenters rights
under Maryland law (and thereby hold Dissenting Units) and who do not
effectively withdraw or lose their dissenters rights.
1.06 Other
Transactions.
(a) Immediately
at and after the consummation of the Merger, for purposes of clarification, the
general partners of the Partnership shall continue to be the general partners of
the Partnership, and each Limited Partner after the Effective Time, including
Parent, hereby consents thereto.
(b) Promptly
after the Closing, the general partners of the Partnership shall amend and
restate the Amended and Restated Limited Partnership Agreement and Certificate
of Amendment of the Partnership that is in effect immediately prior to the
Effective Time (the “Partnership
Agreement”) to reflect, among other things, the transactions contemplated
hereby.
1.07 Dissenting
Units.
(a) Notwithstanding
any provision of this Agreement to the contrary, holders of Limited Partnership
Units which are entitled to dissenter’s rights in connection with the Merger
under the Act (collectively, “Dissenting Units”)
shall not be converted into or represent the right to receive the Merger
Consideration. Such holders shall be entitled to receive in cash
payment of the fair value of such Dissenting Units held by them in accordance
with and as provided by the provisions of the Act, except that all Dissenting
Units held by holders who shall have failed to perfect or who effectively shall
have withdrawn or lost their rights to the payment of fair value for such units
under the Act shall thereupon be deemed to have been converted into and to have
become exchangeable for, as of the Effective Time, the right to receive the
Merger Consideration described in Section 1.05(b)(i), without any interest
thereon.
(b) All
parties hereto shall give Parent and the Managing General Partner (i) prompt
notice of any demand for payment of fair value received by such party, the
withdrawals of any such demand, and any other instrument served pursuant to the
Act and received and (ii) the opportunity to participate in all negotiations and
proceedings with respect to demands for payment of fair value under the
Act. No party to this Agreement shall, except with the prior written
consent of Parent, which shall not be unreasonably withheld, make any payment with
respect to any demands for payment of fair value or offer to settle or settle
any such demands; provided, however, that if
Parent withholds consent to a recommendation from the Managing General Partner
or the Partnership for payment or settlement of any such demand, then Parent
shall provide a written undertaking to indemnify and hold harmless the
Partnership and the Managing General Partner from any and all amounts,
including, but not limited to, attorneys’ fees, which may be awarded to the
holders of such Dissenting Units in respect of such Dissenting Units, to the
extent that the amount of such award is in excess of the amount which the
Managing General Partner or Partnership had proposed to pay or offer to pay to
the holder of such Dissenting Units.
1.08 Payment of Merger
Consideration.
(a) Promptly
after the Effective Time, Parent shall mail to each holder of Limited
Partnership Units a notice and form of letter of transmittal and instructions to
advise each Eligible Limited Partner of the effectiveness of the Merger and the
procedures for obtaining the Merger Consideration, which letter of transmittal
will include a release of all claims that such holder may have against the
Partnership, Parent (and its Affiliates) and the Managing General Partner and
the Associate General Partner (and their respective Affiliates) arising in
connection with the Partnership. Upon the surrender to the Managing
General Partner of such letter of transmittal, duly completed and validly
executed in accordance with the instructions thereto, and such other documents
as may be required pursuant to such instructions, such holder shall receive the
Merger Consideration, without any interest thereon; and the Limited Partnership
Units, to the extent certificated, shall be cancelled. Each of the
parties hereto (as may be appropriate under the circumstances), shall be
entitled to deduct and withhold from the consideration otherwise payable
pursuant to this Agreement such amounts as it is required to deduct and withhold
with respect to the making of such payment under the Code (including, without
limitation under Code Section 1445 or Code Section 3406), or any provision of
state, local or foreign tax law. To the extent that amounts are so
withheld, such withheld amounts shall be treated for all purposes of this
Agreement as having been paid to such person in respect of which such deduction
and withholding was made. If any Merger Consideration is to be paid
to a Person other than the Person in whose name a Limited Partnership Unit is
registered with the Partnership, it shall be a condition to such payment that
the Person requesting such payment shall pay to the Partnership any transfer or
other taxes required by reason of the payment of such Merger Consideration to a
Person other than that of the registered holder of such Limited Partnership
Unit, or such Person shall establish to the satisfaction of the Managing General
Partner that such tax has been paid or is not
applicable. Notwithstanding the foregoing, no party hereto shall be
liable to a holder of units for any Merger Consideration delivered to a public
official pursuant to applicable abandoned property, escheat or similar
laws.
(b) Parent
will promptly deliver the Merger Consideration to each Eligible Limited Partner
upon receipt from such Eligible Limited Partner of the appropriately completed
transmittal form. Until a transmittal form is properly delivered, an
Eligible Limited Partner will not be entitled to payment of any Merger
Consideration. All costs and expenses of the disbursing agent will be
paid by the Partnership [prior] [true?] to the Merger.
(c) At and
after the Effective Time, there shall be no transfers on the partnership books
of the Partnership of the units which were outstanding immediately prior to the
Effective Time (other than units held by Parent or its Affiliates).
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(d) The
provisions of this Section 1.08 shall also apply to Dissenting Units that lose
their status as such.
ARTICLE
II
THE SURVIVING
ENTITY
2.01 Certificate of Limited
Partnership. At the Effective Time, the Certificate of Limited
Partnership of the Partnership, as in effect immediately prior to the Effective
Time, shall continue to be the Certificate of Limited Partnership of the
Surviving Entity and the Partnership Agreement, as in effect immediately prior
to the Effective Time, shall be the Limited Partnership Agreement of the
Surviving Entity (as amended and restated as contemplated by Section
1.06(b)).
2.02 Purposes of Surviving
Entity. As of the Effective Time, the purposes of the
Surviving Entity shall be as stated in the Partnership Agreement.
2.03 General
Partners. At and after the Effective Time, the general
partners of the Partnership shall continue to be the general partners of the
Surviving Entity, subject to the terms of the Partnership Agreement as amended
and restated as contemplated by Section 1.06(b).
ARTICLE
III
REPRESENTATIONS AND
WARRANTIES OF PARENT
Parent
hereby represents and warrants to the Partnership and the Managing General
Partner as follows:
3.01 Organization.
(a) Parent is
a limited liability company duly organized, validly existing and in good
standing under the laws of the Commonwealth of Massachusetts. As of
the Effective Time, Equity Resource Investments, LLC will be the only member of
Parent.
(b) Merger
Sub is a limited partnership, duly organized, validly existing and in good
standing under the laws of the State of Maryland. From the date of
its formation to the Closing Date, Merger Sub will not engage in any material
activities other than in connection with, or as contemplated by, this
Agreement. Merger Sub has been or will be formed solely for the
purpose of effectuating the Merger. As of the Effective Time, Parent
will be the only limited partner of Merger Sub.
3.02 Authority; No
Violation.
(a) Parent
has all requisite power and authority to execute and deliver this Agreement and
to consummate the transactions contemplated hereby. Merger Sub has
all requisite power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby have been duly and validly approved by the requisite partners of Parent
and Merger Sub. No other proceedings on the part of Parent or Merger
Sub are necessary to consummate the transactions contemplated by this
Agreement. This Agreement has been duly and validly executed and
delivered by Parent and Merger Sub and (assuming due authorization, execution
and delivery by the Partnership and the Managing General Partner) constitutes
the valid and binding obligation of Parent and Merger Sub, enforceable against
Parent and Merger Sub in accordance with its terms, except that enforcement
hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting enforcement of creditors’ rights generally and
except that enforcement hereof may be subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law) and the availability of equitable remedies.
(b) Neither
the execution and delivery by Parent and Merger Sub of this Agreement, nor the
consummation by Parent and Merger Sub of the transactions contemplated hereby,
nor compliance by Parent and Merger Sub with any of the terms or provisions
hereof, will, assuming that the consents and approvals referred to in
Section 3.03 hereof are duly obtained, (i) violate any statute, code,
ordinance, rule, regulation, judgment, order, writ, decree or injunction
applicable to Parent or Merger Sub or any of their respective properties or
assets, or, (ii) violate, conflict with, result in a breach of any provisions
of, constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, result in the termination of,
accelerate the performance required by, or result in a right of termination or
acceleration or the creation of any lien, security interest, charge or other
encumbrance upon any of the properties or assets of Parent or Merger Sub under,
any of the terms, conditions or provisions of (x) the certificate of limited
partnership, partnership agreement or other equivalent documents of Parent or
Merger Sub, or (y) except as would not have a material adverse effect on Parent
or Merger Sub, their assets or their business, any note, bond, mortgage,
indenture, deed of trust, license, lease, agreement or other instrument or
obligation to which Parent or Merger Sub is a party thereto, or by which Parent
or Merger Sub or any of their respective properties or assets may be bound or
affected.
3.03 Consents and Approvals. Except
for consents, waivers or approvals of, notices to or filings or registrations
with the SDAT under the Act, no consents, waivers or approvals of, notices to or
filings with any public body or authority are necessary, and no consents or
approvals of any third parties are necessary, in connection with (i) the
execution and delivery by Parent and Merger Sub of this Agreement, or (ii) the
consummation by Parent of the transactions contemplated by this Agreement,
including the Merger.
3.04 Legal Proceedings. There
is no suit, action or proceeding pending or, to the knowledge of Parent,
threatened, against Parent or Merger Sub or any other Affiliate of Parent or
challenging the validity or propriety of the transactions contemplated by this
Agreement, as to which there is a reasonable possibility of an adverse
determination and which, if adversely determined, would, individually or in the
aggregate, materially adversely affect Parent’s or Merger Sub’s ability to
perform its obligations under this Agreement.
3.05 Broker’s
Fees. Neither Parent, Merger Sub nor any of their respective
partners, officers, directors, employees or agents has employed any broker,
finder or financial advisor or incurred any liability for any fees or
commissions in connection with any of the transactions contemplated by this
Agreement.
3.06 Financing. Parent
has available to it sources of capital and financing sufficient to fulfill its
obligations under this Agreement and to consummate all of the transactions
contemplated hereby.
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ARTICLE
IV
REPRESENTATIONS AND
WARRANTIES OF THE PARTNERSHIP,
AND THE MANAGING GENERAL
PARTNER
Managing
General Partner and the Partnership (as to itself only) hereby represent and
warrant to Parent as follows:
4.01 Organization.
(a) Winthrop
Financial Co., Inc. is a corporation duly organized, validly existing and in
good standing under the laws of The Commonwealth of
Massachusetts. The Partnership is a limited partnership duly
organized, validly existing and in good standing under the laws of the State of
Maryland. Winthrop Financial is the sole managing general partner of the
Partnership.
(b) The
Partnership has all requisite power and authority to carry on its business as it
is now being conducted. The Partnership is duly licensed or qualified
to do business in each jurisdiction in which the nature of the business
conducted by it or the character or location of the properties and assets owned,
leased or operated by it makes such licensing or qualification necessary, except
where such failure to be licensed or qualified does not have a material adverse
effect on the Partnership or its assets or business.
4.02 Partnership Interests;
Capitalization. Schedule 4.02 attached hereto sets forth a
list of all holders of General Partnership Units and a list of the holders of
record of Limited Partnership Units on and as of December 4, 2009 (collectively,
the “Partners”), in each
case indicating the type of Partner, the percentage partnership interest in, and
number of units of the Partnership held by such holder. The persons
listed as Partners are the only partners of the Partnership as of the date
hereof. A true and complete copy of the Partnership Agreement has
been provided to Parent. Except as set forth in Schedule 4.02
attached hereto, to the knowledge of Managing General Partner, no other Person,
other than the Partners, has of record, beneficially or otherwise, any ownership
interest, or right to acquire any ownership interest, whether directly or
indirectly, in the Partnership. Except as described in Schedule 4.02
attached hereto, the Partnership does not have and is not bound by any
outstanding subscriptions, options, warrants, calls, commitments or agreements
of any character calling for the Partnership to issue, deliver or sell, or cause
to be issued, delivered or sold any partnership interest in the Partnership or
any securities convertible into, exchangeable for or representing the right to
subscribe for, purchase or otherwise receive any partnership interest in the
Partnership or obligating the Partnership to grant, extend or enter into any
such subscriptions, options, warrants, calls, commitments or
agreements. There are no outstanding contractual obligations of the
Partnership to repurchase, redeem or otherwise acquire any partnership interest
of the Partnership.
4.03 Authority; No
Violation.
(a) The
Partnership and the Managing General Partner have all requisite power and
authority to enter into this Agreement and to perform its obligations hereunder
and, subject to obtaining Limited Partner Consent, to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement by the Partnership and the Managing General Partner, the performance
by each of them of their respective obligations hereunder, and the consummation
by each of them of the transactions contemplated hereby have been duly and
validly authorized by the Managing General Partner and no other action on the
part of the Partnership or the Managing General Partner is necessary to
authorize this Agreement or to consummate the transactions contemplated hereby
(other than, with respect to the Merger, obtaining Limited Partner
Consent). The Partnership and the Managing General Partner have
approved this Agreement and the transactions contemplated
hereby. This Agreement has been duly and validly executed and
delivered by the Partnership and the Managing General Partner, and (assuming due
authorization, execution and delivery by Parent and Merger Sub) this Agreement
constitutes the valid and binding obligations of each such person, enforceable
against such person in accordance with its terms, except that enforcement hereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting enforcement of creditors’ rights generally and except
that enforcement hereof may be subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law) and the availability of equitable remedies.
(b) Neither
the execution and delivery of this Agreement by the Partnership or the Managing
General Partner, nor the consummation by any of them of the transactions
contemplated hereby, nor compliance by any of them with any of the terms or
provisions hereof, will, assuming that the consents and approvals referred to in
Section 4.04 are duly obtained, (i) violate any statute, code, ordinance,
rule, regulation, license, judgment, order, writ, decree or injunction
applicable to any of them or any of their respective properties or assets, or
(ii) violate, conflict with, result in a breach of any provisions of, constitute
a default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, result in the termination of, accelerate the
performance required by, or result in a right of termination or acceleration or
the creation of any lien, security interest, charge or other encumbrance upon
any of the properties or assets of any of them under, any of the terms,
conditions or provisions of (x) the Partnership Agreement, certificate of
partnership or other charter document of like nature of each of them, or (y)
except as would not have a material adverse effect on any of them, their assets
or their business, any note, bond, mortgage, indenture, deed of trust, license,
lease, agreement, or other instrument or obligation to which any of them is a
party thereto, or by which they or any of their respective properties or assets
may be bound or affected.
4.04 Consents and Approvals. Except for
consents, waivers or approvals of, notices to or filings or registrations with
the SDAT under the Act, no consents, waivers or approvals of, notices to or
filings with any public body or authority are necessary, and no consents or
approvals of any third parties (which term does not include the Partners) are
necessary, in connection with (i) the execution and delivery by the parties
(other than Parent or the Managing General Partner) of this Agreement or (ii)
the consummation by the parties (other than Parent or the General Partners) of
the transactions contemplated by this Agreement, including the
Merger. The affirmative vote of holders of a majority of the Limited
Partnership Units and of holders of 100% of the General Partnership Units are
the only votes of the holders of any class or series of partnership interests of
the Partnership necessary under the terms of the Partnership Agreement and the
Act to approve this Agreement and the transactions contemplated
hereby.
4.05 Broker’s Fees. None
of the Partnership or the Managing General Partner, nor any Affiliates of any of
them, or their partners, officers, employees or agents, has employed any broker,
finder or financial advisor or incurred any liability for any fees or
commissions in connection with any of the transactions contemplated by this
Agreement.
4.06 Legal Proceedings. There
is no suit, action or proceeding pending or, to the knowledge of the Managing
General Partner, threatened, against the Partnership or the Managing General
Partner challenging the validity or propriety of the transactions contemplated
by this Agreement, as to which there is a reasonable probability of an adverse
determination and which, if adversely determined, would materially adversely
affect any such Person’s ability to perform its obligations under this
Agreement.
4.07 Ownership of Real Property
and Assets. The Partnership has good and marketable title to
all of its assets and properties, whether real or personal, tangible or
intangible.
4.08 SEC
Documents. Each of the filings made by the Partnership with
the Securities and Exchange Commission pursuant to and under the Exchange Act
(collectively, the “SEC Documents”), as
of their respective filing dates, complied in all material respects with the
requirements of the Exchange Act or the Securities Act, as applicable, and none
of the SEC Documents contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements made therein, in light of the circumstances under
which they were made, not misleading, as of their respective filing dates,
except to the extent such statements have been modified or superseded by later
SEC Documents filed by the Partnership. The consolidated financial
statements contained in the Partnership’s Quarterly Reports on Form 10-QSB for
the periods ended March 31, 2009, June 30, 2009 and September 30, 2009 (the
“2009 Form
10-QSBs”) are true and correct in all material respects, and have been
prepared in accordance with GAAP consistently applied. The balance
sheet set forth in each 2009 Form 10-QSB fairly and accurately presents the
financial condition of the Partnership as of the date thereof, and the
statements of income, partners’ equity and cash flows set forth in each 2009
Form 10-QSB fairly and accurately present the results of operations of the
Partnership for the respective periods covered thereby.
4.09 Tax
Status. None of the Partnership or Presidential Towers Ltd.,
an Illinois limited partnership is, nor has any of them
ever been, a “publicly traded partnership” within the meaning of Section 7704 of
the Code.
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ARTICLE
V
COVENANTS OF THE
PARTIES
5.01 Conduct of the Partnership
and the Managing General
Partner. During the period from the date of this Agreement to
the earlier of the Effective Time or the date of termination of this Agreement,
and except as may be required or specifically permitted pursuant to this
Agreement, the Partnership shall (and the Managing General Partner shall cause
the Partnership to):
(a) conduct
its business only in the ordinary and usual course of business consistent with
past practices, which shall include without limitation (i) refraining from any
of the activities described in Section 5.01(b) below and (ii) not entering into
any transactions except in the ordinary and usual course of business consistent
with past practices, and (iii) complying with the following
covenants:
(A) maintaining
its partnership existence and good standing;
(B) using
all reasonable efforts to maintain in full force and effect insurance generally
comparable in amount and in scope of coverage to that now maintained by it;
and
(C) complying
with and performing in all material respects its obligations and duties (y)
under contracts, leases and documents relating to or affecting its assets,
properties and business and (z) imposed upon it by all federal, state and local
laws and all rules, regulations and orders imposed by federal, state or local
governmental authorities, judicial orders, judgments, decrees and similar
determinations;
(b) except as
expressly permitted by Section 5.02 hereof, not, without the prior written
consent of Parent:
(i) engage or
participate in any material transaction or incur or sustain any material
obligation or liability except in the ordinary, regular and usual course of its
business consistent with past practices; or
(ii) sell,
lease, transfer, assign, encumber or otherwise dispose of or enter into any
material contract, agreement or understanding to lease, transfer, assign,
encumber or dispose of, any of the Real Property.
(c) promptly
notify Parent of any emergency or other material change in the operations of the
Partnership’s assets or properties and of any governmental complaints,
investigations or hearings (or written communications indicating that the same
may be contemplated);
(d) not make
any distribution of proceeds relating to a Capital Event or any other
distributions of cash or proceeds, except as required by the Partnership
Agreement prior to the Effective Time;
(e) not
propose, adopt or approve any amendments to the Partnership’s Certificate of
Limited Partnership or the Partnership Agreement or other organizational
documents except to the extent that such amendment would not have an adverse
effect on the value or operation of the Partnership from and after the Effective
Time, and not to enter into any new agreement, document or arrangements or amend
or modify any existing agreement, document or arrangement that would prohibit or
restrict the performance of the transactions contemplated by this
Agreement;
(f) not admit
any new partner except in connection with transfers of Limited Partnership Units
outstanding as of the date of this Agreement nor issue any new partnership units
(whether Limited Partnership Units or General Partnership Units);
(g) not
grant, confer or award any options, warrants, conversion rights or other rights
not existing on the date hereof to acquire any partnership interest;
and
(h) not
purchase, redeem or otherwise acquire any partnership interest.
Notwithstanding
the foregoing, the Managing General Partner shall be permitted to cause the
Partnership to take any of the actions described in subclauses (b), (e), (f),
(g) or (h) of this Section 5.01 if the Managing General Partner determines in
good faith, after consultation with and receipt of advice from outside counsel,
that it is necessary to do so in order to comply with its fiduciary duties to
partners under applicable law; provided, that, prior
to taking any such actions, the Managing General Partner shall notify and
consult with Parent; provided, however, that if
Parent objects to the taking of any such actions and the Managing General
Partner causes the Partnership to take any of such actions notwithstanding such
objection, Parent shall be entitled to terminate this Agreement by delivering
written notice thereof to the Managing General Partner and the
Partnership.
5.02 Limited Partner Consent. In
consultation with Parent and Merger Sub, the Managing General Partner will cause
the Partnership to, as promptly as practicable after the date hereof, take all
steps necessary to seek, and use its reasonable efforts to obtain, the consent
of the associate general partner of the Partnership as well as the consent of
holders of Limited Partnership Units (the “Limited Partners”) holding at
least a majority of the Limited Partnership Units, in accordance with the Act,
to the Merger, the terms and provisions of this Agreement, and the transactions
contemplated hereby (the “Limited Partner
Consent”). Parent and the Managing General Partner shall
cooperate with each other in the preparation of all documents to be delivered to
the Limited Partners in connection with seeking and obtaining the Limited
Partner Consent. Parent and the Managing General Partner shall vote,
and shall cause its Affiliates to vote, all Limited Partnership Units and
General Partnership Units held by each of them and their Affiliates in favor of
this Agreement and the Merger.
5.03 Consents. Each
of the Partnership, the Managing General Partner, Merger Sub and Parent will
cooperate with one another and use all reasonable efforts to, as promptly as
practicable, prepare all documentation, to effect all filings and to obtain all
permits, consents, approvals and authorizations of governmental agencies and
authorities and nongovernmental third parties which are necessary or appropriate
to consummate the transactions contemplated by this Agreement, including without
limitation, the consent of any mortgage lender to the Partnership (such
nongovernmental third party approvals hereinafter referred to as, “Third Party Consents”).
5.04 Proxy
Solicitor. At the request of Parent, at any time prior to the
Closing, the Partnership shall retain a proxy solicitor (or other similar
service) chosen by Parent at Parent’s sole discretion in order to obtain the
consents and approvals required to be obtained in order to consummate the
transactions contemplated by this Agreement. The parties hereto shall
coordinate all efforts in connection with the activities of any such proxy
solicitor. Parent shall be responsible for the fees and expenses of
any such proxy solicitor.
5.05 Further Assurances. Subject
to the terms and conditions herein provided, each of the parties hereto agrees
to use all reasonable efforts to, as promptly as practicable, take, or cause to
be taken, all action and to do, or cause to be done, all things necessary,
proper or advisable under applicable laws and regulations to consummate and make
effective the transactions contemplated by this Agreement. In case at
any time after the Effective Time any further action is necessary or desirable
to carry out the purposes of this Agreement, the parties hereto shall use
reasonable efforts to take all such necessary action.
- 7
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ARTICLE
VI
CLOSING
CONDITIONS
6.01 Conditions to Each Party’s Obligations. The
respective obligations of each party under this Agreement shall be subject to
the fulfillment at or prior to the Effective Time of the following conditions,
none of which may be waived:
(a) Governmental Consents. All
authorizations, consents, orders or approvals of, declarations or filings with
or notices to, and all expirations of waiting periods imposed by, any
governmental or regulatory authority or agency, which are necessary for the
consummation of the Merger, shall have been filed, occurred or been obtained
(all such authorizations, orders, declarations, approvals, filings, notices and
consents and the lapse of all such waiting periods being referred to as the
“Requisite
Regulatory
Approvals”),
and all such Requisite Regulatory Approvals shall be in full force and
effect.
(b) No Injunctions or Restraints. No
temporary restraining order, preliminary or permanent injunction or other order
issued by any court of competent jurisdiction or other legal restraint or
prohibition preventing the consummation of the Merger or the other transactions
contemplated by this Agreement shall be in effect.
(c) Limited Partner
Consent. Limited Partner Consent shall have been
obtained.
(d) General Partner Consent. The consent
of all general partners shall have been obtained.
6.02 Conditions to the Obligations of Parent. The
obligations of Parent under this Agreement shall be further subject to the
satisfaction (or waiver by Parent), at or prior to the Effective Time, of the
following conditions:
(a) No Change. The
business, assets or properties of the Partnership (including the business,
assets and properties of the Local Limited Partnerships) shall not have been,
and shall not be threatened to be, adversely affected in any way as a result of
fire, explosion, earthquake, disaster, labor trouble or dispute, change in
business organization, any action by the United States or any other governmental
authority, flood, drought, embargo, riot, civil disturbance, uprising, activity
of armed forces or act of God or public enemy. There shall not have
occurred any material adverse change in the condition, operations, business,
prospects or assets of the Partnership or imposition of any laws, rules or
regulations which would materially adversely affect the condition (financial or
otherwise), operations, business, prospects or assets of the
Partnership.
(b) Representations and Warranties; Performance of Obligations. The
obligations of the Partnership and the Managing General Partner required to be
performed by each of them at or prior to the Closing pursuant to the terms of
this Agreement shall have been duly performed and complied with in all material
respects, and the representations and warranties of the Partnership and the
Managing General Partner contained in this Agreement shall be true and correct
in all material respects as of the date of this Agreement and as of the
Effective Time as though made at and as of the Effective Time (except as
otherwise specifically contemplated by this Agreement, except as to any
representation or warranty which specifically relates to an earlier
date).
(c) Certificates. The
Managing General Partner, on behalf of itself and as the Managing General
Partner of the Partnership shall deliver a certificate, executed by an officer
or other authorized person, to the effect that the conditions set forth in this
Section 6.02 have been fulfilled, and the representations and warranties set
forth herein, are true and correct on and as of the Closing Date.
(d) Third-Party Consents. All
Third Party Consents shall have been received, obtained or made and shall be in
full force and effect.
(e) Securities Law
Compliance. Parent shall be satisfied that the Merger and the
payment of the Merger Consideration shall be conducted in material compliance
with all applicable federal and state securities laws.
(f) Other
Instruments. In addition to the foregoing, on behalf of itself
and/or the Partnership, the Managing General Partner will furnish
Parent with such additional certificates, instruments or other documents in the
name or on behalf of the Partnership, or in its own name, including without
limitation certificates or correspondence of governmental agencies or
authorities or nongovernmental third parties, to evidence fulfillment of the
conditions set forth in this Section 6.02 as Parent may reasonably
request.
6.03 Conditions to the Obligations of the Partnership and the Managing General Partner. The
obligations of the Partnership and the Managing General Partner under this
Agreement shall be further subject to the satisfaction (or waiver by the
Managing General Partner), at or prior to the Effective Time, of the following
conditions:
(a) Representations and Warranties; Performance of Obligations. The
obligations of Parent and Merger Sub required to be performed by each at or
prior to the Closing pursuant to the terms of this Agreement shall have been
duly performed and complied with in all material respects, and the
representations and warranties of Parent and Merger Sub contained in this
Agreement shall be true and correct in all material respects as of the date of
this Agreement and as of the Effective Time as though made at and as of the
Effective Time (except as otherwise specifically contemplated by this Agreement
and except as to any representation or warranty which specifically relates to an
earlier date), and the Managing General Partner shall have received a
certificate to that effect signed by an officer of Parent and Merger
Sub.
(b) Third-Party Consents. All
Third Party Consents shall have been received, obtained or made and shall be in
full force and effect.
(c) Other
Instruments. In addition to the foregoing, Parent will furnish
the Partnership and the Managing General Partner with such additional
certificates, instruments or other documents in the name or on behalf of Parent,
executed by appropriate officers or others, including without limitation
certificates or correspondence of governmental agencies or authorities or
nongovernmental third parties, to evidence fulfillment of the conditions set
forth in this Section 6.03 as the Partnership and the Managing General Partner
may reasonably request.
- 8
-
ARTICLE
VII
TERMINATION, AMENDMENT AND
WAIVER
7.01 Termination. This
Agreement may be terminated at any time prior to the Effective Time, whether
before or after approval of this Agreement and the transactions contemplated
hereby by the Limited Partners:
(a) by mutual
consent of all of the parties to this Agreement in a written
instrument;
(b) by either
Parent and Merger Sub, on the one hand, or the Managing General Partner and the
Partnership, on the other hand, if any governmental authority that must grant a
Requisite Regulatory Approval has denied approval of the Merger and such denial
has become final and nonappealable or any governmental authority of competent
jurisdiction shall have issued a final nonappealable order permanently enjoining
or otherwise prohibiting the consummation of the transactions contemplated by
this Agreement;
(c) by either
Parent and Merger Sub, on the one hand, or the Managing General Partner and the
Partnership, on the other hand (provided that the terminating party is not then
in material breach of any representation, warranty, covenant or other agreement
contained herein), in the event of a material breach by the other party of any
representation, warranty, covenant or other agreement contained herein which
breach is not cured after thirty (30) days written notice thereof is given to
the party committing such breach;
(d) by either
Parent and Merger Sub, on the one hand, or the Managing General Partner and the
Partnership, on the other hand, if the Limited Partner Consent has not been
obtained by [April 30, 2010] (provided that the failure to obtain such Limited
Partner Consent is not attributable to a breach by any party hereto, for which
the right to terminate arises under subsection (c) above) or the Effective Time
has not occurred by [April 30, 2010];
(f) by
Parent in the event it exercises its right to terminate pursuant to Section
5.01; or
(g) by
Parent in the event of a breach by the Managing General Partner (or the
Partnership) and/or their Affiliates of the covenants in Section 5.02 hereof
(except for a single inadvertent breach which has not adversely affected the
consummation of the transactions set forth in this Agreement).
7.02 Effect of
Termination. In the event of termination of this Agreement by
either Parent or the Managing General Partner, as provided in Section 7.01, this
Agreement shall forthwith become void and have no effect, and none of the
parties, or any of their respective Affiliates, shall have any liability of any
nature whatsoever hereunder, or in connection with the transactions contemplated
hereby, except
that the provisions in this Agreement that survive the termination of this
Agreement shall remain in full force and effect. Notwithstanding any
termination of this Agreement, the provisions of this Section 7.02 shall
survive.
7.03 Extension;
Waiver. At any time prior to the Effective Time, the parties
hereto may, to the extent legally allowed, (a) extend the time for the
performance of any of the obligations or other acts of the other parties hereto,
(b) waive any inaccuracies in the representations and warranties contained
herein or in any document delivered pursuant hereto and (c) except for the
closing conditions set forth in Section 6.01(a), waive compliance with any of
the agreements or conditions contained herein. Any agreement on the
part of a party hereto to any such extension or waiver shall be valid only if
set forth in a written instrument signed on behalf of such party, but such
extension or waiver or failure to insist on strict compliance with an
obligation, covenant, agreement or condition shall not operate as a waiver of,
or estoppel with respect to, any subsequent or other failure.
- 9
-
ARTICLE
VIII
MISCELLANEOUS
8.01 Nonsurvival of
Representations, Warranties and Agreements. None of the representations,
warranties, covenants and agreements in this Agreement or in any instrument
delivered pursuant to this Agreement shall survive the Effective Time, except
for those covenants and agreements which by their terms apply in whole or in
part after the Effective Time.
8.02 Expenses. Except
as may otherwise be agreed to hereunder or in other writing by the parties, all
legal and other costs and expenses incurred in connection with this Agreement
and the transactions contemplated hereby shall be paid by the party incurring
such costs and expenses.
8.03 Notices. All
notices or other communications hereunder shall be in writing and shall be
deemed given if delivered personally or mailed by prepaid registered or
certified mail (return receipt requested) or by telecopy, cable, telegram or
telex addressed as follows:
|
(a)
|
If
to Parent or Merger Sub,
to: Equity
Resource Investments, LLC
|
1280
Massachusetts Ave., 4th
Fl.
Cambridge,
MA 02138
Attention: Eggert
Dagbjartsson
|
(b)
|
If
to the Partnership,
to: Presidential
Associates I Limited
|
Partnership
1280
Massachusetts Ave., 4th
Fl.
Cambridge,
MA 02138
Attention: Eggert
Dagbjartsson
|
(c)
|
If
to the Managing General Partner,
to:
Winthrop Financial Co., Inc,.
|
1280 Massachusetts Ave., 4th
Fl.
Cambridge,
MA 02138
Attention: Eggert
Dagbjartsson
or such
other address as shall be furnished in writing by any party, and any such notice
or communication shall be deemed to have been given as of the date so
mailed.
8.04 Counterparts. This
Agreement may be executed in counterparts, all of which shall be considered one
and the same agreement and shall become effective when counterparts have been
signed by each of the parties and delivered to the other parties, it being
understood that all parties need not sign the same counterpart.
8.05 Entire
Agreement. This Agreement (including the documents and the
instruments referred to herein) constitutes the entire agreement and amends and
restates all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter hereof.
8.06 Governing
Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Maryland, without regard to any
applicable conflicts of law principles.
8.07 Severability. In
the event that any one or more provisions of this Agreement shall for any reason
be held invalid, illegal or unenforceable in any respect, by any court of
competent jurisdiction, such invalidity, illegality or unenforceability shall
not affect any other provisions of this Agreement and the parties shall use
their reasonable best efforts to substitute a valid, legal and enforceable
provision which, insofar as practicable, implements the original purposes and
intents of this Agreement.
8.08 Assignment. Neither
this Agreement nor any of the rights, interests or obligations shall be assigned
by any of the parties hereto (whether by operation of law or otherwise) without
the prior written consent of the other parties. Subject to the
preceding sentence, this Agreement will be binding upon, inure to the benefit of
and be enforceable by the parties and their respective successors and
assigns.
8.09 Specific
Performance. The parties hereto agree that irreparable damage
would occur in the event that the provisions contained in this Agreement were
not performed in accordance with its specific terms or was otherwise
breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions thereof in any court of the United
States or any state having jurisdiction, this being in addition to any other
remedy to which they are entitled at law or in equity.
8.10 Definitions. Except
as otherwise provided herein or as otherwise clearly required by the context,
the following terms shall have the respective meanings indicated when used in
this Agreement:
“Affiliate” shall
mean, with respect to any Person, any other Person controlling, controlled by or
under common control with such Person and, with respect to Parent, any Related
Entities. As used in this definition, “control” (including, with its
correlative meanings, “controlled by” and “under common control with”) means the
possession, directly or indirectly, of power to direct or cause the direction of
the management and policies of a Person whether through the ownership of voting
securities, by contract or otherwise.
“Capital Event” shall
mean the sale, financing, refinancing, condemnation, casualty or other similar
event of or involving a Real Property or the improvements located
thereon.
“Code” shall mean the
Internal Revenue Code of 1986, as amended, and the rules and regulations
promulgated thereunder.
“Eligible Limited
Partners” shall mean all holders of record of Limited Partnership Units
immediately prior to the Effective Time, according to the books and records of
the Transfer Agent, but excluding Persons who are Affiliates of Parent and
Persons who hold Dissenting Units.
“Excess Cash” shall
mean all cash and cash equivalents of the Partnership after deducting for (or
reserving against) all Liabilities and after deducting any and all cash relating
to a Capital Event.
“Exchange Act” shall
mean the Securities Exchange Act of 1934, as amended and in effect from time to
time, and all of the rules and regulations promulgated thereunder.
“GAAP” shall mean
United States generally accepted accounting principles which are consistent with
the principles promulgated or adopted by the Financial Accounting Standards
Board and its predecessors.
- 10
-
“General Partnership
Unit(s)” shall mean units of general partnership interest in the
Partnership.
“Liabilities” shall
mean all operating liabilities of the applicable Person incurred in the ordinary
course of business including, without limitation, all taxes, payroll expenses,
lease obligations, trade accounts payable arising out of the operation of such
Person’s business in the ordinary course of business, and all professional fees
and expenses payable by such Person, in each case, which are unpaid as of the
Effective Time.
“Limited Partnership
Unit(s)” shall mean units of limited partnership interest in the
Partnership.
“Limited Partnership Unit
Amount” shall mean the quotient obtained by dividing (a) the
Purchase Price by (b) the aggregate number of Limited Partnership Units
outstanding immediately prior to the Effective Time (including all units held by
Parent and its Affiliates and Dissenting Units).
“Merger Consideration”
shall mean the amounts or other property, if any, that any Person shall be
entitled to receive as set forth in Section 1.05.
“Purchase Price” shall
mean $8,600.
“Person” shall mean
any individual, corporation, partnership, limited liability company, joint
venture, association, trust, unincorporated organization or other legal entity,
or any governmental agency or political subdivision thereof.
“Related Entities”
shall mean any entity for which any of Parent, the Managing General Partner or
any of their respective Affiliates serve as general partner and/or investment
advisor or in a similar capacity, and all mutual funds or other pooled
investment vehicles or entities under the control or management of any of Parent
or the general partners or the general partner or investment advisor thereof, or
any Affiliate of any of them, including the Managing General
Partner.
“Securities Act” shall
mean the Securities Act of 1933, as amended and in effect from time to time, and
all of the rules and regulations promulgated thereunder.
“to the knowledge of the
General Partners” shall mean the actual knowledge, after reasonable
inquiry and investigation, of Eggert Dagbjartsson and Victor Paci.
“Transfer Agent” shall
mean Phoenix Resources, the Person retained in such capacity by the
Partnership.
8.12 Amendment. Subject
to compliance with applicable law, this Agreement may be amended by the parties
hereto by an instrument in writing signed on behalf of each of the parties
hereto.
- 11
-
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement and Plan of
Merger to be duly executed and delivered as a sealed instrument as of the date
first above written.
|
|
PARENT:
|
|
|
ERI/PRESIDENTIAL
LLC
|
|
|
By:
|
ERF
Manager LLC, its Manager
|
|
|
By:
|
Equity
Resource Investment, LLC, its Sole
Manager
|
|
|
By:
|
/s/ Eggert
Dagbjartsson
|
|
|
Eggert
Dagbjartsson
|
|
|
Manager
|
|
|
MERGER
SUB:
|
|
|
ERI/PRESIDENTIAL
MERGER SUB LIMITED PARTNERSHIP
|
|
|
By:
|
ERF
Manager LLC, its General Partner
|
|
|
By:
|
Equity
Resource Investment, LLC, its Sole
Manager
|
|
|
By:
|
/s/ Eggert
Dagbjartsson
|
|
|
Eggert
Dagbjartsson
|
|
|
Manager
|
|
|
PARTNERSHIP:
|
|
|
PRESIDENTIAL
ASSOCIATES I LIMITED PARTNERSHIP
|
|
|
By:
|
Winthrop
Financial Co., Inc., its Managing General
Partner
|
|
|
By:
|
/s/ Eggert
Dagbjartsson
|
|
|
Eggert
Dagbjartsson,
|
|
|
President
|
|
|
MANAGING GENERAL
PARTNER:
|
|
|
WINTHROP
FINANCIAL CO., INC.
|
|
|
By:
|
/s/ Eggert
Dagbjartsson
|
|
|
Eggert
Dagbjartsson,
|
|
|
President
|
- 12
-
EXHIBIT A
Articles
of Merger
of
ERI/PRESIDENTIAL
MERGER SUB LIMITED PARTNERSHIP
(a
Maryland limited partnership)
into
PRESIDENTIAL
ASSOCIATES I LIMITED PARTNERSHIP
(a
Maryland limited partnership)
FIRST: ERI/Presidential
Merger Sub Limited Partnership and Presidential Associates I Limited
Partnership, being the limited partnerships which are parties to these Articles
of Merger, hereby agree to effect a merger (the "Merger") of said limited
partnerships upon the terms and conditions set forth below.
SECOND: The name of the
limited partnership to be merged into the successor limited partnership is
ERI/Presidential Merger Sub Limited Partnership (the "Merging Partnership"),
which is a limited partnership organized in the State of Maryland under the
provisions of the Maryland Revised Uniform Limited Partnership Act.
THIRD: The name of the
successor limited partnership is Presidential Associates I Limited Partnership
(the "Surviving Partnership"), which is a limited partnership organized in the
State of Maryland under the provisions of the Maryland Uniform Limited
Partnership Act.
FOURTH: The principal office
of the Merging Partnership in the State of Maryland is located in Baltimore
City. The Merging Partnership owns no interest in land in the State
of Maryland.
FIFTH: The principal office
of the Surviving Partnership in the State of Maryland is located in Baltimore
City.
SIXTH: The percentages of partnership
interest of each class of partnership interest and the class of partners and the
respective percentage of partnership interests in each class of partnership
interest of the Surviving Partnership are as follows:
General
Partnership
Interests 1%
Limited
Partnership
Interests 99%
SEVENTH: The percentages of
partnership interest of each class of partnership interest and the class of
partners and the respective percentage of partnership interests in each class of
partnership interest of the Merging Partnership are as follows:
General
Partnership
Interests 1%
Limited
Partnership
Interests 99%
EIGHTH: At the effective
time of the Merger, the Merging Partnership shall be merged with and into the
Surviving Partnership, the separate existence of the Merging Partnership shall
cease and the Merger shall have the effects set forth in the Agreement and Plan
of Merger, dated as of November 17, 2009 (the "Merger Agreement"), by and among
ERI/Presidential LLC, a Massachusetts limited liability company ("Parent"), the
Merging Partnership, the Surviving Partnership and its managing general
partnership, and in Section 10-208 of the Maryland Revised Uniform Limited
Partnership Act. Each limited partnership unit of the Merging
Partnership outstanding immediately prior to the effective time of the Merger
shall be automatically converted into one limited partnership unit of the
Surviving Partnership, subject to the terms of the Merger
Agreement. Each general partnership unit of the Merging Partnership
outstanding immediately prior to the effective time of the Merger shall remain
outstanding. Each limited partnership unit of the Surviving Partnership
outstanding immediately prior to the effective time of the Merger (other than
units held by holders of limited partnership units who are entitled to
dissenters' rights) shall be cancelled and automatically converted into the
right to receive the Limited Partnership Unit Amount (as defined in the Merger
Agreement). Each general partnership unit of the Surviving
Partnership outstanding immediately prior to the effective time of the Merger
shall remain outstanding.
NINETH: The terms and
conditions of the Merger set forth herein were approved by the Merging
Partnership in the manner and by the vote required by its partnership agreement
and the provisions of the Maryland Revised Uniform Limited Partnership Act as
follows:
|
|
The
Merger and the terms and conditions thereof were duly approved by the
affirmative vote of the sole general partner and the affirmative vote of
the sole limited partner.
|
TENTH: The Merger and the
terms and conditions thereof were approved by the Surviving Partnership in the
manner and by the vote required by its partnership agreement and the provisions
of the Maryland Revised Uniform Limited Partnership Act as follows:
|
|
The
Merger and the terms and conditions thereof were duly approved by the
affirmative vote all of the general partners and the affirmative vote of a
majority in interest of the limited
partners.
|
ELEVENTH: The undersigned
officer of the managing general partner of the Surviving Partnership and the
undersigned managing member of the sole member of the general partner of the
Merging Partnership each acknowledges these Articles of Merger to be the
partnership act of the partnership on whose behalf he has signed, and further,
as to all matters or facts required to be verified under oath, each acknowledges
that, to the best of his knowledge, information and belief, these matters and
facts relating to the partnership on whose behalf he has signed are true in all
material respects and that this statement is made under the penalties for
perjury.
- 13
-
IN WITNESS WHEREOF, these Articles of
Merger have been duly executed by the parties this ____ day of ________
__.
|
|
Attest:
|
|
|
SURVIVING
PARTNERSHIP:
|
|
|
PRESIDENTIAL
ASSOCIATES I LIMITED PARTNERSHIP
|
|
|
By:
|
Winthrop
Financial Co., Inc., its Managing General
Partner
|
|
|
By:
|
|
|
|
Eggert
Dagbjartsson,
|
|
|
President
|
|
|
MERGING
PARTNERSHIP:
|
|
|
ERI/PRESIDENTIAL
MERGER SUB LIMITED PARTNERSHIP
|
|
|
By:
|
ERF
Manager LLC, its General Partner
|
|
|
By:
|
Equity
Resource Investment, LLC, its Sole
Manager
|
|
|
By:
|
|
|
|
Eggert
Dagbjartsson
|
|
|
Manager
|
- 14
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