Exhibit 10.1
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger, dated as of March 18, 2005, is entered
into and adopted by and between Secured Investment Resources Fund, L.P. III, a
Missouri limited partnership (hereinafter "the Partnership") and Bicycle Club,
L.L.C., 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. Nichols Resources, Ltd. is
the sole general partner of the Partnership; and
WHEREAS, the Partnership is engaged in the ownership and operation of The
Bicycle Club 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
sole 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:
I. Merger
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. 347.710, 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. Partner Vote. After the Agreement and Plan of Merger has been approved
by the general partner and by more than 50% of the Total Outstanding Units,
and after the approval of the Board of Trustees of the REIT, then a
Certificate of Consolidation or Merger shall be filed with the Secretary of
State of Missouri.
B. Effective date. The merger shall become effective on the date said
Certificate of Consolidation or Merger shall be so filed with the Secretary
of State of Missouri.
C. Manner of Conversion.
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.
2. The merger consideration equals $4,280,516. Each Limited Partner of
the Partnership will receive his/her portion of the consideration
based on his/her Partnership percentage interest. For example, each
limited partner in the Partnership will receive $577.51 per
Partnership Unit owned.
3. Accredited limited partners in the Partnership have the option of
receiving Operating Units in MOLP redeemable into shares of stock in
the REIT. Such accredited limited partners must complete a
Subscription Agreement and be accepted by MOLP. In the event of such
election and acceptance, the accredited limited partners will receive
Operating Units in MOLP, under the terms of the MOLP Partnership
Agreement, based upon a $14 per share value of REIT stock. For
example, each electing accredited limited partner owning a five units
in the Partnership would receive 206 Operating Units
(5(577.51)=$2,887.55 divided by 14) in MOLP, plus $3.55 in cash.
D. Limited Partner Liability. No limited partner of either the Partnership
or MOLP will, as a result of the merger, become personally liable for the
liabilities or obligations of either partnership.
E. Cancellation. The Partnership shall, upon completion of the merger, file
with the Secretary of State of Missouri such documents as necessary to
comply with applicable law.
F. Operations. Upon the effective date of the merger, the assets,
properties, rights, privileges, immunities, debts, liabilities, obligations
and all other interests of the Partnership shall be deemed to be
transferred to and vested in the Company. Specifically, the assets and
other property of the Partnership and the liabilities and obligations of
the Partnership shall transfer to the Company without further action by
either party. The Company accepts such transfers and assumes such
obligations.
G. Assignment. All the rights and interest of the Partnership under all
material contracts, leases, licenses and choses in action are assigned to
the Company.
H. Status. The Company is formed for the purpose of effecting the merger
and operating the apartment complex.
I. General.
1. Counterparts. For the convenience of the parties and to facilitate
the filing and recording of this Agreement and Plan of Merger, if
required, any number of counterparts hereof maybe executed, and each
such counterpart shall be deemed an original instrument.
2. Governing Law. This agreement shall in all respect be governed by
and construed in accordance with the laws of the State of Missouri.
3. Amendment. The parties, by mutual consent of all parties, may
amend, modify and supplement this Agreement and Plan of Merger in such
manner as may be agreed upon in writing.
IN WITNESS WHEREOF, the undersigned being the general partner of
Partnership and the sole member of the Company have caused this instrument to be
executed as of the day and year first above written.
BICYCLE CLUB, L.L.C.
a Missouri limited liability company
By: Maxus Operating Limited Partnership,
a Delaware limited partnership, its sole
member
By: Maxus Realty GP, Inc.,
a Delaware corporation, its General Partner
By: /s/ John W. Alvey
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John W. Alvey, Vice President
SECURED INVESTMENT RESOURCES FUND, L.P., III
a Missouri Limited Partnership
By: Nichols Resources, Ltd.
General Partner
By:/s/ John W. Alvey
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John W. Alvey, Vice President