<PAGE>
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of
the Securities Exchange Act of 1934 (Amendment No. 2)
Filed by the Registrant /X/
Filed by a Party other than the Registrant / /
Check the appropriate box:
/X/ Preliminary Proxy Statement
/ / Confidential, for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
/ / Definitive Proxy Statement
/ / Definitive Additional Materials
/ / Soliciting Material Pursuant to Section240.14a-11(c) or
Section240.14a-12
BERKSHIRE REALTY COMPANY, INC.
- --------------------------------------------------------------------------------
(Name of Registrant as Specified In Its Charter)
- --------------------------------------------------------------------------------
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
/ / No fee required.
/X/ Fee computed on table below per Exchange Act Rules 14a-6(i)(1)
and 0-11.
(1) Title of each class of securities to which transaction applies:
Common Stock, $0.01 par value per share
Series 1997-A Convertible Preferred Stock, $0.01 par value per share
("Preferred Stock")
-----------------------------------------------------------------------
(2) Aggregate number of securities to which transaction applies:
37,371,785 shares of Common Stock
2,737,000 shares of Preferred Stock
-----------------------------------------------------------------------
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on which the
filing fee is calculated and state how it was determined):
In accordance with Rule 0-11(c), the fee was calculated to be
one-fiftieth of one percent of the aggregate of the cash and value of
securities and other property to be distributed to the stockholders of
Berkshire Realty Company, Inc.
$12.25 per share of Common Stock
$28.75 per share of Preferred Stock
-----------------------------------------------------------------------
(4) Proposed maximum aggregate value of transaction:
$536,493,116
-----------------------------------------------------------------------
(5) Total fee paid:
$107,299
-----------------------------------------------------------------------
/ / Fee paid previously with preliminary materials.
/X/ Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the form or schedule and the date of its filing.
(1) Amount Previously Paid:
$107,271
-----------------------------------------------------------------------
(2) Form, Schedule or Registration Statement No.:
Preliminary Proxy Statement
-----------------------------------------------------------------------
(3) Filing Party:
Berkshire Realty Company, Inc.
-----------------------------------------------------------------------
(4) Date Filed:
August 17, 1999
-----------------------------------------------------------------------
<PAGE>
[LOGO]
, 1999
Dear Fellow Stockholder:
You are cordially invited to attend the Special Meeting of Stockholders of
Berkshire Realty Company, Inc. (the "Company"), to be held on , 1999
at 10:00 a.m. at the offices of Hale and Dorr LLP, 60 State Street, Boston,
Massachusetts (the "Special Meeting").
At the Special Meeting, you will be asked to vote on a transaction which
will be structured as the merger of BRI Acquisition, LLC, a Delaware limited
liability company (the "Acquiror"), with and into the Company or, alternatively,
the merger of the Company with and into Berkshire Realty Holdings, L.P., the
parent of the Acquiror and a Delaware limited partnership (the "Parent").
If the merger is consummated, you will have the right to receive $12.25 in
cash for each share of common stock that you own and $28.75 (together with 115%
of accrued dividends) in cash for each share of preferred stock that you own
(unless you exercise your statutory appraisal rights). The $12.25 per share of
common stock represents a premium of approximately 28.4% to the average closing
price of the common stock on the New York Stock Exchange of $9.54 over the
30-day period prior to March 4, 1999, the day the Parent (through an affiliate)
publicly disclosed its initial cash offer of $11.05 per share. The Parent
subsequently raised its offer to $12.25 per share. On August 26, 1999, the last
trading day prior to the printing of the proxy statement that accompanies this
letter, the closing price per share of the Company's common stock was $11.75.
An independent special committee (the "Special Committee") formed by the
Company's Board of Directors negotiated the $12.25 per share price and other
terms of the transaction with the Parent and the Acquiror. The Special Committee
consists of four Board members who are not employees of, or otherwise affiliated
with, the Company, the Parent or the Acquiror.
Acting on the unanimous recommendation of the Special Committee, the Board
of Directors, with all eight members who were present voting in favor (one
director was absent), approved the proposed merger. In making its recommendation
to the Board of Directors, the Special Committee carefully reviewed and
considered the terms and conditions of the proposed merger as described in the
enclosed Proxy Statement. In addition, the Special Committee received an opinion
from the Special Committee's financial advisor, Prudential Securities
Incorporated, and the Board of Directors received opinions from its financial
advisors, Lazard Freres & Co. LLC and Lehman Brothers Inc., as to the fairness,
from a financial point of view, of the consideration to be paid in the merger to
the holders of common stock, as more fully described in the Proxy Statement. The
Special Committee and the Board of Directors believe that the proposed merger is
fair to, and in the best interests of, the Company's stockholders who are not
affiliated with the Parent or its affiliates. THEREFORE, THE BOARD OF DIRECTORS
RECOMMENDS THAT YOU VOTE FOR APPROVAL AND ADOPTION OF THE MERGER AND THE MERGER
AGREEMENT.
Douglas Krupp, the chairman and chief executive officer of the administering
general partner of the Parent, is also the Chairman of the Board of the Company.
For purposes of effecting the merger, affiliates of Mr. Krupp, together with
affiliates of Blackstone Real Estate Advisors III L.L.C. and affiliates of
Whitehall Street Real Estate Limited Partnership XI, an affiliate of Goldman,
Sachs & Co., formed the Parent. As of the record date for the Special Meeting,
Mr. Krupp and his affiliates owned approximately 1.4% of the outstanding shares
of the Company's common stock. They also owned, as of the record date, 5,344,066
units of limited partnership interest in BRI OP Limited Partnership (the
"Operating Partnership") which are convertible on a one-for-one basis into
shares of the Company's common stock or cash, as determined by the Operating
Partnership. These partnership units do not have the right to vote at the
Special Meeting. Mr. Krupp has agreed to vote his shares of common
<PAGE>
stock, and to cause his affiliates to vote their shares of common stock
(aggregating, as noted above, approximately 1.4% of the outstanding common
stock), for approval of the merger and adoption of the merger agreement.
The attached notice of meeting and proxy statement describe the merger and
the merger agreement and provide specific information concerning the Special
Meeting. Please read these materials carefully.
Whether or not you plan to attend the Special Meeting, I urge you to
complete, date, sign and promptly return the enclosed proxy card to ensure that
your shares will be voted at the Special Meeting. The merger is an important
decision for the Company and its stockholders. The merger will only be approved
upon the affirmative vote of (i) the holders of a majority of the total number
of outstanding shares of common stock and preferred stock (voting on an
as-converted basis), voting as a single class and (ii) the holders of a majority
of the total number of outstanding shares of preferred stock. Thus, if you fail
to return your proxy card, the effect will be the same as a vote against the
merger, unless you appear at the Special Meeting and vote in favor of the
merger. If you hold your shares through a broker, you must instruct your broker
as to how you wish your shares to be voted.
On behalf of the Board of Directors, I thank you for your support and urge
you to vote FOR approval of the merger and adoption of the merger agreement.
Very truly yours,
/s/ DAVID F. MARSHALL
---------------------------
David F. Marshall
President and Chief Executive Officer
One Beacon Street, Suite 1550
Boston, Massachusetts 02108
Telephone: 888-867-0100
2
<PAGE>
BERKSHIRE REALTY COMPANY, INC.
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD , 1999
NOTICE IS HEREBY GIVEN that a Special Meeting of the stockholders of
Berkshire Realty Company, Inc., a Delaware corporation (the "Company"), will be
held on , 1999 at 10:00 a.m. at the offices of Hale and Dorr LLP, 60
State Street, Boston, Massachusetts (the "Special Meeting") for the purpose of
considering and voting upon the following matters, which are more fully
described in the attached proxy statement:
1. To consider and vote upon a proposal to approve the merger of BRI
Acquisition, LLC, a Delaware limited liability company (the "Acquiror"),
with and into the Company or, at the election of Berkshire Realty
Holdings, L.P., a Delaware limited partnership and the parent of the
Acquiror (the "Parent"), the merger of the Company with and into the
Parent (either such structure, the "Merger"), and to adopt an Agreement
and Plan of Merger, dated as of April 13, 1999, by and among the Parent,
the Acquiror and the Company (as amended, the "Merger Agreement"). If the
Merger is approved and the Merger Agreement is adopted by the Company's
stockholders and the other conditions to the Merger are satisfied or
waived, each outstanding share of Common Stock of the Company, $0.01 par
value per share, will be converted into the right to receive $12.25 in
cash, and each outstanding share of Series 1997-A Convertible Preferred
Stock of the Company, $0.01 par value per share, will be converted into
the right to receive $28.75 (together with 115% of all accrued dividends
thereon) in cash (other than shares owned by stockholders who exercise
their statutory appraisal rights or shares owned by the Parent and its
wholly-owned subsidiaries).
2. To transact such other business, if any, as may properly come before the
Special Meeting or any adjournment or postponement thereof.
The Board of Directors has no knowledge of any other business to be
transacted at the Special Meeting.
The Board of Directors has fixed the close of business on August 16, 1999 as
the record date for the determination of stockholders entitled to notice of and
to vote at the Special Meeting and at any adjournments or postponements thereof.
A list of the Company's stockholders is open for examination by any stockholder,
beginning ten days prior to the date of the Special Meeting, for any purpose
germane to the Special Meeting, at the principal executive offices of the
Company, One Beacon Street, Suite 1550, Boston, Massachusetts 02108 and will be
available at the Special Meeting.
By Order of the Board of Directors,
/s/ SCOTT D. SPELFOGEL
-------------------------------
Scott D. Spelfogel
SECRETARY
, 1999
WHETHER OR NOT YOU PLAN TO ATTEND THE SPECIAL MEETING, PLEASE PROMPTLY COMPLETE,
SIGN, DATE AND RETURN THE ENCLOSED PROXY CARD IN THE ACCOMPANYING ENVELOPE. NO
POSTAGE NEED BE AFFIXED IF THE PROXY CARD IS MAILED IN THE UNITED STATES.
<PAGE>
BERKSHIRE REALTY COMPANY, INC.
ONE BEACON STREET
SUITE 1550
BOSTON, MASSACHUSETTS 02108
PROXY STATEMENT
FOR THE SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON , 1999
This Proxy Statement is furnished in connection with the solicitation by the
Board of Directors of Berkshire Realty Company, Inc., a Delaware corporation
(the "Company"), of proxies for use at the Special Meeting of Stockholders of
the Company to be held on , 1999 at 10:00 a.m. at the offices of Hale
and Dorr LLP, 60 State Street, Boston, Massachusetts and at any adjournments or
postponements thereof (the "Special Meeting"). THE NOTICE OF MEETING, THIS PROXY
STATEMENT AND THE ENCLOSED PROXY CARD ARE BEING MAILED TO STOCKHOLDERS ON OR
ABOUT , 1999.
At the Special Meeting, the holders (the "Stockholders") of the Company's
Common Stock, $0.01 par value per share (the "Common Stock"), and the Company's
Series 1997-A Convertible Preferred Stock, $0.01 par value per share (the
"Preferred Stock"), will consider and vote upon a proposal (i) to approve the
proposed merger of BRI Acquisition, LLC, a Delaware limited liability company
(the "Acquiror"), with and into the Company or, alternatively, at the election
of Berkshire Realty Holdings, L.P., a Delaware limited partnership and the
parent of the Acquiror (the "Parent"), the merger of the Company with and into
the Parent, and (ii) to adopt an Agreement and Plan of Merger, dated as of April
13, 1999, by and among the Parent, the Acquiror and the Company (as amended, the
"Merger Agreement"). The consequences to the Stockholders are the same in either
structure other than the tax treatment of certain foreign Stockholders. See
"Special Factors--Material Federal Tax Consequences."
For purposes of this Proxy Statement, all references to the term "Merger"
shall be deemed to include both structures described in the immediately
preceding paragraph. A copy of the Merger Agreement is attached as Appendix A to
this Proxy Statement. The summaries of the portions of the Merger Agreement set
forth in this Proxy Statement do not purport to be complete and are subject to,
and are qualified in their entirety by reference to, the text of the Merger
Agreement. The Merger and the Merger Agreement are collectively referred to as
the "Merger Proposal" in this Proxy Statement.
Pursuant to the Merger Agreement and subject to satisfaction of the
conditions set forth therein,
- the Acquiror would be merged with and into the Company, with the Company
continuing as the surviving entity or, at the election of the Parent, the
Company would be merged with and into the Parent, with the Parent as the
surviving entity (in either case, the surviving entity is referred to in
this Proxy Statement as the "Surviving Company");
- each outstanding share of Common Stock would be converted, upon
consummation of the Merger, into the right to receive $12.25 in cash
(other than shares owned by Stockholders who exercise their statutory
appraisal rights or shares owned by the Parent and its affiliates); and
- each outstanding share of Preferred Stock would be converted, upon
consummation of the Merger, into the right to receive $28.75, together
with 115% of all Accrued Dividends (as defined in the Certificate of
Designation of the Preferred Stock), in cash (other than shares owned by
Stockholders who exercise their statutory appraisal rights).
THIS TRANSACTION HAS NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION (THE "COMMISSION") NOR HAS THE COMMISSION PASSED UPON THE
FAIRNESS OR MERITS OF SUCH TRANSACTION OR UPON THE ACCURACY OR ADEQUACY OF THE
INFORMATION CONTAINED IN THIS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS
UNLAWFUL.
The Acquiror is a wholly-owned subsidiary of the Parent. Douglas Krupp, the
chairman and chief executive officer of the administering general partner of the
Parent, currently serves as the Chairman of the Board of Directors of the
Company. Members of the Board of Directors of the Company are referred to as
"Directors," and the Company's Board of Directors is referred to as the "Board
of Directors" or the "Board," in this Proxy Statement.
THE BOARD OF DIRECTORS, BASED UPON THE UNANIMOUS RECOMMENDATION OF A SPECIAL
COMMITTEE (THE "SPECIAL COMMITTEE") CONSISTING OF FOUR DIRECTORS WHO ARE NOT
EMPLOYEES OF OR OTHERWISE AFFILIATED WITH THE COMPANY, THE ACQUIROR OR THE
PARENT, HAS APPROVED THE MERGER PROPOSAL. THE SPECIAL COMMITTEE RECEIVED AN
OPINION FROM THE
<PAGE>
SPECIAL COMMITTEE'S FINANCIAL ADVISOR, PRUDENTIAL SECURITIES INCORPORATED
("PRUDENTIAL SECURITIES"), AND THE BOARD OF DIRECTORS RECEIVED OPINIONS FROM ITS
FINANCIAL ADVISORS, LAZARD FRERES & CO. LLC ("LAZARD") AND LEHMAN BROTHERS INC.
("LEHMAN"), AS TO THE FAIRNESS, FROM A FINANCIAL POINT OF VIEW, OF THE
CONSIDERATION TO BE PAID IN THE MERGER TO THE HOLDERS OF COMMON STOCK. THE BOARD
OF DIRECTORS RECOMMENDS THAT THE STOCKHOLDERS VOTE FOR APPROVAL AND ADOPTION OF
THE MERGER PROPOSAL.
STOCKHOLDERS ARE URGED TO READ AND CONSIDER CAREFULLY THE INFORMATION
CONTAINED IN THIS PROXY STATEMENT AND TO CONSULT WITH THEIR PERSONAL FINANCIAL
AND TAX ADVISORS.
Each proxy will be voted in accordance with the instructions of the
Stockholder granting it. If no choice is specified, the proxy will be voted FOR
approval of the Merger Proposal. Any proxy may be revoked by a Stockholder at
any time before its exercise by delivery of a written revocation or a
subsequently dated proxy to the Company's transfer agent and registrar, or by
voting in person at the Special Meeting. Attendance at the Special Meeting will
not itself be deemed to revoke a proxy; the Stockholder must give affirmative
notice at the Special Meeting that the Stockholder intends to revoke the proxy
and vote in person. If a Stockholder holds shares through a broker, the
Stockholder must notify the broker in order to revoke a proxy.
IT IS IMPORTANT THAT PROXIES BE RETURNED PROMPTLY. THEREFORE, WHETHER OR NOT
YOU PLAN TO ATTEND THE SPECIAL MEETING, PLEASE COMPLETE, DATE, SIGN AND RETURN
THE PROXY CARD IN THE ENCLOSED POSTAGE-PAID ENVELOPE.
THE DATE OF THIS PROXY STATEMENT IS , 1999.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
QUESTIONS AND ANSWERS ABOUT THE MERGER..................................................................... 1
WHO CAN HELP ANSWER YOUR QUESTIONS?........................................................................ 2
SUMMARY.................................................................................................... 3
Voting Securities and Votes Required................................................................... 3
Purpose, Structure and Effects of the Merger........................................................... 4
Recommendation of the Board of Directors and the Special Committee..................................... 5
Factors Considered by the Board of Directors and the Special Committee................................. 5
Fairness Opinions...................................................................................... 7
Conflicts of Interest of Officers and Directors of the Company......................................... 8
Closing Date........................................................................................... 8
Partnership Merger..................................................................................... 9
Voting Agreement....................................................................................... 9
Conditions to the Merger............................................................................... 10
Termination of the Merger Agreement.................................................................... 11
Termination Fees and Expenses.......................................................................... 13
Financing; Source of Funds............................................................................. 13
Federal Income Tax Consequences........................................................................ 14
Appraisal Rights....................................................................................... 14
INFORMATION CONCERNING THE SPECIAL MEETING................................................................. 15
Time, Place and Date................................................................................... 15
Purpose of the Special Meeting......................................................................... 15
Record Date; Quorum; Outstanding Common Stock and Preferred Stock Entitled to Vote..................... 15
Vote Required.......................................................................................... 16
Action to Be Taken Under the Proxy..................................................................... 16
Proxy Solicitation..................................................................................... 17
GENERAL.................................................................................................... 18
The Company............................................................................................ 18
The Parent and the Acquiror............................................................................ 18
SPECIAL FACTORS............................................................................................ 20
Background of the Merger............................................................................... 20
Purpose and Structure of the Merger.................................................................... 37
Recommendation of the Special Committee and the Board of Directors; Fairness of the Merger............. 38
Benefits and Detriments to Nonaffiliated Stockholders.................................................. 42
Opinions of the Financial Advisors..................................................................... 42
Position of the Parent, the Acquiror and Certain Affiliates............................................ 54
Interests of Certain Persons in Matters to be Acted Upon............................................... 54
Certain Consequences of the Merger..................................................................... 59
Plans for the Company after the Merger................................................................. 60
Conduct of the Business of the Company If the Merger Is Not Consummated................................ 61
Material Federal Tax Consequences...................................................................... 61
Litigation Regarding the Merger........................................................................ 63
Accounting Treatment................................................................................... 64
THE MERGER................................................................................................. 65
The Merger............................................................................................. 65
Merger Consideration................................................................................... 65
Closing Date and Effective Time........................................................................ 65
Exchange and Payment Procedures........................................................................ 66
Transfer of Common Stock and Preferred Stock........................................................... 66
Additional Agreements.................................................................................. 67
Conduct of Business Pending the Merger................................................................. 68
Representations and Warranties......................................................................... 70
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
Conditions............................................................................................. 72
Termination; Withdrawal of Recommendations............................................................. 75
Termination Fees and Expenses.......................................................................... 76
Amendment and Waiver................................................................................... 79
Financing; Source of Funds............................................................................. 79
Appraisal Rights....................................................................................... 85
Fees and Expenses...................................................................................... 88
Regulatory Requirements................................................................................ 88
SELECTED FINANCIAL DATA OF THE COMPANY..................................................................... 89
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS................................................. 91
CERTAIN FINANCIAL PROJECTIONS OF THE COMPANY............................................................... 91
ESTIMATED PROCEEDS PER SHARE IN LIQUIDATION................................................................ 96
COMMON STOCK MARKET PRICE INFORMATION;
DIVIDEND INFORMATION..................................................................................... 104
CERTAIN RELATIONSHIPS AND TRANSACTIONS..................................................................... 105
MANAGEMENT OF THE COMPANY.................................................................................. 106
MANAGEMENT OF THE PARENT AND THE ACQUIROR;
GENERAL PARTNERS OF THE PARENT........................................................................... 110
The Parent and the Acquiror............................................................................ 110
Berkshire GP........................................................................................... 110
Blackstone GP.......................................................................................... 110
Whitehall GP........................................................................................... 111
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT OF THE COMPANY.............................. 112
PROPOSALS BY STOCKHOLDERS OF THE COMPANY................................................................... 120
INDEPENDENT ACCOUNTANTS.................................................................................... 120
WHERE YOU CAN FIND MORE INFORMATION........................................................................ 121
OTHER MATTERS.............................................................................................. 121
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE............................................................ 121
FINANCIAL STATEMENTS....................................................................................... F-1
</TABLE>
<TABLE>
<S> <C> <C>
Appendix A -- Merger Agreement
Appendix B -- Opinion of Lazard Freres & Co. LLC
Appendix C -- Opinion of Lehman Brothers Inc.
Appendix D -- Opinion of Prudential Securities Incorporated
Appendix E -- Section 262 of the Delaware General Corporation Law
Appendix F -- Managers and Executive Officers of WXI/BRH Gen-Par, L.L.C.
Appendix G -- Managers and Executive Officers of WH Advisors, L.L.C. XI
Appendix H -- Directors of The Goldman Sachs Group, Inc.
Appendix I -- Summary Independent Appraisal
Appendix J -- Summary Parent Appraisal
</TABLE>
ii
<PAGE>
QUESTIONS AND ANSWERS ABOUT THE MERGER
Q: WHAT WILL I RECEIVE IN THE MERGER?
A: Unless you exercise your statutory appraisal rights, you will receive $12.25
in cash in exchange for each share of Berkshire Realty Company, Inc. Common
Stock owned by you at the time of the Merger and $28.75 (together with 115%
of all unpaid Accrued Dividends) in cash in exchange for each share of
Berkshire Realty Company, Inc. Preferred Stock owned by you at the time of
the Merger. The amount of cash to be paid to Stockholders other than the
Parent and its wholly-owned subsidiaries (the "Nonaffiliated Stockholders")
will equal approximately $530 million.
The record date for the Special Meeting is earlier than the expected date of
the Merger. Therefore, transferors of shares of Common Stock and Preferred
Stock after the record date but prior to the Merger will retain their right
to vote at the Special Meeting but the right to receive the cash payment per
share will transfer with the shares of Common Stock and Preferred Stock,
respectively.
Q: WHAT WILL HAPPEN TO MY COMMON STOCK DIVIDENDS?
A: The Merger Agreement provides for the declaration and payment of Common Stock
dividends only under the following conditions:
- the Company may make a third quarter dividend payment of $.25 per share
of Common Stock with a record date of August 1, 1999 (which was paid on
August 15, 1999);
- if the date on which the Merger becomes effective (the "Effective
Time") occurs after November 1, 1999 for any reason, the Company may
make a pro rata dividend payment (based on a $.25 per share quarterly
rate) for the period from November 1, 1999 through the Effective Time;
and
- if the Effective Time occurs after October 29, 1999 because the Parent
has exercised its right under the Merger Agreement to extend the
closing date of the Merger, the Company may declare a fourth quarter
1999 dividend (not to exceed $.25 per share of Common Stock) with a
record date of November 1, 1999.
Accordingly, no fourth quarter dividend will be paid without the Acquiror's
prior consent if the Effective Time occurs on or before October 29, 1999 or
occurs after October 29, 1999 for any reason other than the Parent's
exercise of its option to extend the closing date.
Q: WHAT WILL HAPPEN TO MY PREFERRED STOCK DIVIDENDS?
A: The Merger Agreement permits the continued declaration and payment of regular
quarterly dividends per share of Preferred Stock in the amounts provided for
in the Certificate of Designation of the Preferred Stock.
Q: WHAT DO I NEED TO DO NOW?
A: Please complete, date and sign your proxy card and then mail it in the
enclosed postage-paid envelope as soon as possible, so that your shares may
be represented at the Special Meeting.
Q: SHOULD I SEND IN MY STOCK CERTIFICATES NOW?
A: No. If the Merger is completed, we will send you written instructions for
exchanging your stock certificates for cash.
Q: IF MY SHARES ARE HELD IN "STREET NAME" BY MY BROKER, WILL MY BROKER VOTE MY
SHARES FOR ME?
A: Your broker will vote your shares ONLY if you provide your broker with
instructions on how to vote. Any failure to instruct your broker to vote in
favor of the Merger will have the effect of a
1
<PAGE>
NO vote. You should follow the directions provided by your broker regarding
how to instruct your broker to vote your shares.
Q: MAY I CHANGE MY VOTE AFTER I HAVE MAILED MY SIGNED PROXY CARD?
A: Yes. Just send in a later-dated, signed proxy card before the Special Meeting
or attend the Special Meeting, give written notice that you are revoking
your proxy and vote in person. If your shares are held in "street name" by a
broker and you wish to change your vote, you will need to contact your
broker.
Q: WHEN DO YOU EXPECT THE MERGER TO BE COMPLETED?
A: We are working to complete the Merger as quickly as possible. Unless
otherwise agreed to by the parties, the earliest the Merger may be completed
is October 15, 1999. We expect to complete the Merger (if it is approved by
the Stockholders) on or about October 15, 1999, although the closing could
be extended to as late as December 29, 1999, at the election of the Parent.
The Parent's current intention is not to extend the closing date.
Q: WHAT ARE THE TAX CONSEQUENCES OF THE MERGER?
A: The exchange of Common Stock and Preferred Stock for cash by a Stockholder in
the Merger will be a taxable transaction for federal income tax purposes
(which will cause you to recognize a taxable gain upon completion of the
Merger if, and to the extent, the amount of cash you receive in the Merger
exceeds your tax basis in your Common Stock or Preferred Stock, as the case
may be) and may also be a taxable transaction under state and local and
other tax laws. You should consult your own tax advisor for a full
understanding of the tax consequences of the Merger. See "Special
Factors--Material Federal Tax Consequences."
Q: WHAT OTHER MATTERS WILL BE VOTED ON AT THE SPECIAL MEETING?
A: We do not expect any other matters to be voted on at the Special Meeting.
WHO CAN HELP ANSWER YOUR QUESTIONS?
If you have more questions about the Merger or would like additional copies
of this Proxy Statement, Banks and Brokers should contact:
Georgeson & Company, Inc.
Wall Street Plaza
New York, NY 10005
Call Collect: (212) 440-9800
All others should contact:
Berkshire Realty Company, Inc.
Investor Communications Department
One Beacon Street
Suite 1500
Boston, MA 02108
Toll-Free: (888) 867-0100
2
<PAGE>
SUMMARY
This summary highlights the material information included in this Proxy
Statement. This summary may not contain all of the information that is important
to you. To understand the Merger fully and for a more complete description of
the legal terms of the Merger, you should read carefully this entire document
and the other documents to which we have referred you. See "Where You Can Find
More Information." The actual terms of the Merger are contained in the Merger
Agreement, a copy of which is attached as Appendix A to this Proxy Statement.
The summaries of the portions of the Merger Agreement set forth in this Proxy
Statement do not purport to be complete and are subject to, and are qualified in
their entirety by reference to, the text of the Merger Agreement.
All information contained in this Proxy Statement relating to the Parent,
the Acquiror and their affiliates (other than the Company and its subsidiaries)
or to their respective actions, purposes, beliefs, intentions or plans has been
supplied by the Parent and the Acquiror for inclusion herein and has not been
independently verified by the Company.
References in this Proxy Statement to the "Parent" refer to the Parent or
Aptco, LLC, a Delaware limited liability company (an entity formed by affiliates
of the Parent), depending on the context. For a description of the controlling
partners of the Parent, see "Management of the Parent and the Acquiror; General
Partners of the Parent."
VOTING SECURITIES AND VOTES REQUIRED
The Board of Directors has fixed August 16, 1999 as the record date (the
"Record Date") for determination of Stockholders entitled to vote at the Special
Meeting.
On the Record Date, there were outstanding and entitled to vote an aggregate
of 37,360,361 shares of Common Stock and 2,737,000 shares of Preferred Stock.
Each holder of record of Common Stock is entitled to one vote per share. Holders
of Preferred Stock are entitled to vote on an "as converted" basis, together
with the holders of Common Stock as one class, on all matters on which the
holders of Common Stock are entitled to vote. Each share of Preferred Stock is
convertible, subject to the terms of the Certificate of Designation with respect
thereto, into 2.0756 shares of Common Stock, based on a conversion price of
$12.04. Accordingly, on the Record Date, the holders of the then outstanding
shares of Common Stock and Preferred Stock were entitled to cast a total of
43,041,278 votes, of which 37,360,361 votes could be cast by holders of Common
Stock and 5,680,917 votes by holders of Preferred Stock.
On the Record Date, there were approximately 26,000 registered holders of
Common Stock and 11 registered holders of Preferred Stock.
The presence in person or by proxy of the holders of the shares of Common
Stock and Preferred Stock entitled to cast a majority of the votes that could be
cast at the Special Meeting by the holders of such shares voting as a single
class (collectively, the "Voting Securities") that were outstanding on the
Record Date will constitute a quorum for the transaction of business by the
holders of Common Stock and Preferred Stock voting as a single class at the
Special Meeting. The presence in person or by proxy of the holders of a majority
of the shares of Preferred Stock outstanding on the Record Date at the Special
Meeting will constitute a quorum for purposes of the separate vote of the
Preferred Stock. Shares of Common Stock and Preferred Stock present in person or
represented by proxy (including shares which abstain or do not vote with respect
to one or more of the matters presented for Stockholder approval) will be
counted for purposes of determining whether a quorum exists at the Special
Meeting.
The following votes are required to approve and adopt the Merger Proposal:
- the affirmative vote of the holders of a number of shares of Common Stock
and Preferred Stock (voting on an as-converted basis), voting as a single
class, issued and outstanding on the Record
3
<PAGE>
Date representing a majority of the total number of outstanding shares of
Common Stock (after giving effect to a deemed conversion of the Preferred
Stock); and
- the affirmative vote of the holders of a majority of the Preferred Stock
issued and outstanding on the Record Date.
As of the Record Date, Douglas Krupp, the Company's Chairman of the Board
and an affiliate of the Parent and the Acquiror, and his affiliates owned
approximately 1.4% of the outstanding shares of Common Stock. As of the Record
Date, they also owned 5,344,066 units of limited partnership interest ("OP
Units") in BRI OP Limited Partnership, a Delaware limited partnership (the
"Operating Partnership"), which are convertible at the election of the holder on
a one-for-one basis into shares of Common Stock or cash, as determined by the
Operating Partnership. The OP Units do not have the right to vote at the Special
Meeting. Mr. Krupp has agreed to vote his shares of Common Stock, and to cause
his affiliates to vote their shares of Common Stock, for approval and adoption
of the Merger Proposal. See "Certain Relationships and Transactions."
Directors, executive officers and affiliates of the Company (including
Douglas Krupp and his affiliates) who own or control Common Stock or Preferred
Stock (constituting approximately 13.1% of the outstanding Voting Securities and
85.4% of the outstanding Preferred Stock in the aggregate) have indicated to the
Company that they currently intend to vote all such shares for approval and
adoption of the Merger Proposal.
Shares whose holders abstain from voting as to the Merger Proposal, and
shares held in "street name" by brokers or nominees who indicate on their
proxies that they do not have discretionary authority to vote such shares as to
such matter, are nonetheless considered outstanding shares and an abstention or
failure to vote will have the same effect as a vote against the Merger Proposal.
The holders of OP Units will have no rights in their capacity as such
holders to vote at the Special Meeting. The Company conducts substantially all
of its operations through the Operating Partnership. The Company is the special
limited partner of the Operating Partnership. A wholly-owned subsidiary of the
Company, Berkshire Apartments, Inc., a Delaware corporation, is the general
partner of the Operating Partnership. In connection with the Merger, an
affiliate of the Parent and the Acquiror will be merged with and into the
Operating Partnership. See "--Partnership Merger." The holders of OP Units will
vote on whether to approve and adopt the Operating Partnership merger and will
receive separate consent solicitation materials in connection with such vote.
PURPOSE, STRUCTURE AND EFFECTS OF THE MERGER
The purpose of the Merger is to enable the Parent to acquire the entire
equity interest in the Company and provide the Nonaffiliated Stockholders with
the opportunity to liquidate their investment in the Company for cash at a
significant premium to market prices for the Common Stock prior to the
announcement of the Parent's acquisition offer and at a 15% premium (in
accordance with the Company's Certificate of Incorporation) to the Stated Value
(as defined in the Certificate of Designation of the Preferred Stock), together
with 115% of Accrued Dividends (as defined in the Certificate of Designation of
the Preferred Stock), per share of Preferred Stock. The Parent and the Acquiror
believe that the Merger is beneficial to them because, following the Merger, the
Parent will become the beneficiary of any future earnings growth of the Company
and any increase in value of the Company. For the reasons set forth below under
"Special Factors--Recommendation of the Special Committee and the Board of
Directors; Fairness of the Merger," the Board of Directors and the Special
Committee believe that the Merger is beneficial to the Nonaffiliated
Stockholders because they believe it represents the best available alternative
for maximizing Stockholder value. See "--Recommendation of the Board of
Directors and the Special Committee."
Pursuant to the Merger Agreement, following approval and adoption of the
Merger Proposal and subject to the fulfillment or waiver of the conditions in
the Merger Agreement, the Acquiror would be
4
<PAGE>
merged with and into the Company, and the Company would continue as the
Surviving Company in the Merger or, at the election of the Parent, the Company
would be merged with and into the Parent, and the Parent would continue as the
Surviving Company in the Merger (the latter such structure is referred to as the
"Alternative Merger"). The Parent has indicated that its current intention is to
elect the Alternative Merger. The consequences to the Nonaffiliated Stockholders
are the same in either structure other than the tax treatment of certain foreign
Stockholders. See "Special Factors--Material Federal Tax Consequences."
Except for Stockholders who exercise their statutory appraisal rights, upon
completion of the Merger, Nonaffiliated Stockholders who hold shares of Common
Stock will have the right to receive $12.25 in cash per share and holders of
shares of Preferred Stock will have the right to receive $28.75, together with
115% of all Accrued Dividends, in cash per share (collectively, the "Merger
Consideration"), or an aggregate of approximately $530 million. Also, upon
completion of the Merger, the Nonaffiliated Stockholders will cease to have any
ownership interest in the Company and will cease to participate in future
earnings growth, if any, of the Company or to benefit from any increase in the
value of the Company. Moreover, the Common Stock and Preferred Stock will be
canceled, public trading of the Common Stock will cease, the Common Stock will
be delisted from the New York Stock Exchange (the "NYSE") and the registration
of the Common Stock under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), will terminate.
See "Special Factors--Certain Consequences of the Merger."
RECOMMENDATION OF THE BOARD OF DIRECTORS AND THE SPECIAL COMMITTEE
The Board of Directors, acting on the unanimous recommendation of the
Special Committee, has approved the Merger Proposal and recommends that you vote
FOR adoption and approval of the Merger Proposal. The Board of Directors and the
Special Committee believe that the Merger is fair to, and in the best interests
of, the Nonaffiliated Stockholders, and that the $12.25 and $28.75 per share
prices for the Common Stock and Preferred Stock, respectively, are fair to the
Nonaffiliated Stockholders.
The members of the Special Committee are Terrance R. Ahern (Chairman), J.
Paul Finnegan, E. Robert Roskind and David M. deWilde. They own in the aggregate
23,500 shares of Common Stock and will receive payment for their shares of
Common Stock in the aggregate amount of $287,875 upon consummation of the
Merger. In addition, they will receive payment in respect of stock options upon
consummation of the Merger in the aggregate amount of $139,188. See "Special
Factors--Interests of Certain Persons in Matters to be Acted Upon--Options."
Finally, Messrs. Roskind and deWilde will each receive a payment in the amount
of approximately $70,200 upon consummation of the Merger pursuant to a
Directors' retainer fee plan. See "Special Factors--Interests of Certain Persons
in Matters to be Acted Upon--Directors Retainer Fee Plan."
FACTORS CONSIDERED BY THE BOARD OF DIRECTORS AND THE SPECIAL COMMITTEE
In determining to recommend to the Board of Directors that it approve the
Merger and adopt the Merger Agreement, and in determining that the Merger was
fair to, and in the best interests of, the Nonaffiliated Stockholders, the
Special Committee considered the following factors, each of which, in the
Special Committee's view, supported the Special Committee's determination to
recommend the Merger:
- the determination of the Special Committee after consultation with the
Company's and Special Committee's financial advisors that $12.25 per share
of Common Stock in cash presented greater value to the Nonaffiliated
Stockholders who hold Common Stock than was likely to be realized upon
adoption of a plan of liquidation of the Company (the "Liquidation Plan"),
the
5
<PAGE>
continuation of the Company's existing operations or the other
alternatives available to the Company;
- the Special Committee's belief that the Company had thoroughly explored
the market interest in an acquisition of the Company, which was based on
the efforts on behalf of the Company by Lazard, financial advisor to the
Company, to solicit indications of interest to purchase all or part of the
Company's business, including contacting 40 potential acquirors;
- the belief of the Special Committee, based on (i) its negotiations with
other parties that made offers to acquire the Company which, among other
things, led to an increase in the Parent's offer from $11.05 per share of
Common Stock and (ii) the extensive efforts made by the Special Committee
to negotiate and execute a merger agreement favorable to the Company and
the Nonaffiliated Stockholders, that the cash price of $12.25 per share of
Common Stock and the other terms set forth in the Merger Agreement were
the best price and terms that could be obtained by the Company in light of
the available alternatives;
- historical data relating to market prices of the Common Stock, including
data that indicated that the $12.25 per share of Common Stock to be
received by the Nonaffiliated Stockholders who hold Common Stock in the
Merger represented a premium of approximately 28.4% to the average closing
price of the Common Stock on the NYSE of $9.54 over the 30-day period
prior to March 4, 1999, the day the Parent's initial cash offer of $11.05
per share was publicly disclosed, which was subsequently raised to $12.25
per share;
- the opinion of Prudential Securities, financial advisor to the Special
Committee, and the statements from Lazard and Lehman, financial advisors
to the Company, that they were prepared to opine to the Board of Directors
at its meeting following the conclusion of the Special Committee meeting,
as to the fairness from a financial point of view to:
-- the Stockholders who hold Common Stock of $12.25 per share of Common
Stock; and
-- the holders of OP Units of $12.25 per OP Unit (if such holders elect
to receive cash) (see "--Partnership Merger"),
and the analysis presented to the Special Committee by Prudential
Securities (see "Special Factors--Opinions of the Financial
Advisors");
- that the Parent, upon signing the Merger Agreement, would post a letter of
credit in the amount of $29,500,000 to secure the performance of its
obligations under the Merger Agreement, which amount would be increased to
$54,500,000 should the Parent elect to extend the closing of the Merger to
a date after October 29, 1999 (the "Letter of Credit");
- the substantial likelihood of consummation of the Merger by the Parent and
the Acquiror because of the posting of the Letter of Credit and the
limited number and nature of the conditions to the Parent's and the
Acquiror's obligations to close, including:
-- that the existence of litigation relating to the Merger, other than
any such litigation resulting in the granting of injunctive relief
that prevents consummation of the Merger, will not cause a failure of
the conditions; and
-- that the failure to obtain a third-party consent with respect to any
matter that was disclosed to the Parent and the Acquiror in writing on
or prior to April 13, 1999 will not cause a failure of the conditions;
- that Stockholders who do not vote in favor of the Merger will have
statutory appraisal rights;
- that (i) the Company can pay a fourth quarter dividend to Stockholders of
record on November 1, 1999 if specified conditions to closing have been
satisfied on or before October 29, 1999 but the Parent elects to extend
the closing of the Merger beyond such date; and (ii) the
6
<PAGE>
Company can pay a pro rata dividend for the period beginning November 1,
1999 through the Effective Time if for any reason the Effective Time
occurs after November 1, 1999; and
- the other terms and conditions of the Merger Agreement, including the
scope of the parties' representations, warranties, covenants and
agreements and the right of the Board of Directors to withdraw or modify
its recommendation if the Company receives an unsolicited superior
acquisition proposal that it desires to accept (see "The
Merger--Additional Agreements").
The material negative factors, which the Special Committee viewed as
insufficient to outweigh the positive factors, were:
- that, following the Merger, the Nonaffiliated Stockholders will cease to
participate in the future earnings growth, if any, of the Company or to
benefit from the increase, if any, in the value of the Company;
- the potential conflicts of interest of officers and Directors of the
Company in connection with the Merger;
- that each Nonaffiliated Stockholder will recognize a taxable gain upon
completion of the Merger if and to the extent the amount of cash such
Nonaffiliated Stockholder receives in the Merger exceeds its tax basis in
its Common Stock or Preferred Stock, as the case may be; and
- that if the Parent and Acquiror fail to consummate the Merger for any
reason, including the failure of the Parent's equity and debt financing
commitments (which total in excess of $1 billion) to close, the Company's
sole remedy will be to draw on the Letter of Credit.
The Board of Directors, at its April 13, 1999 meeting, considered the
unanimous recommendation of the Special Committee, the opinions of the financial
advisors as to the fairness of the Merger Consideration from a financial point
of view, as described below, as well as the other factors (enumerated above)
considered by the Special Committee, and determined that the Merger is fair to,
and in the best interests of, the Nonaffiliated Stockholders, approved and
adopted the Merger Proposal, authorized the execution by the Company of the
Merger Agreement and related documents and recommended that the Stockholders
vote to approve and adopt the Merger Proposal. The Directors voting to approve
and adopt the Merger Proposal constituted a majority of the Directors who are
not employees of, or otherwise affiliated with (other than as Directors), the
Company. The Board of Directors considered the recommendation of the Special
Committee but made its own evaluation, based on the factors enumerated above, of
the substantive and procedural fairness of the Merger Proposal.
FAIRNESS OPINIONS
Lazard and Lehman each delivered to the Board of Directors, and Prudential
Securities delivered to the Special Committee, a written opinion, dated April
13, 1999, in each case subject to the assumptions and limitations expressed in
the written opinion, stating that the Merger Consideration is fair from a
financial point of view, as described below. Lazard's opinion is attached as
Appendix B to this Proxy Statement, Lehman's opinion is attached as Appendix C
to this Proxy Statement and Prudential Securities' opinion is attached as
Appendix D to this Proxy Statement. You are urged to read these opinions in
their entirety. Lazard, Lehman and Prudential Securities have received or will
receive financial advisory fees of approximately $3.0 million, $1.2 million and
$1.0 million, respectively, approximately $2.85 million, $200,000 and none of
which, respectively, is contingent upon the consummation of the Merger. See
"Special Factors--Opinions of the Financial Advisors."
7
<PAGE>
CONFLICTS OF INTEREST OF OFFICERS AND DIRECTORS OF THE COMPANY
Executive officers and Directors of the Company may have interests in the
Merger that are different from your interests as a Stockholder or relationships
that may present conflicts of interest, including the following:
- Mr. Krupp, the Chairman of the Board of Directors of the Company, serves
as chairman and chief executive officer of the Parent's administering
general partner, is expected to serve as chief executive officer of the
Parent at the time the Merger is consummated and, through his affiliates,
will hold significant equity in the Surviving Company and will be entitled
to receive a disproportionate amount of the profits from the Parent after
certain other partners in the Parent have received a specified return on
their investment;
- It is anticipated that Mr. Krupp will enter into a five-year employment
agreement with the Surviving Company (to serve as its chief executive
officer), which will provide for, among other things, an annual salary of
$250,000;
- David Olney, the Company's Executive Vice President and Chief Investment
Officer, serves as president of the Parent's administering general
partner;
- Six executive officers of the Company (Ridge Frew, James Jackson, David
Marshall, Mr. Olney, Marianne Pritchard and Dennis Suarez) have entered
into agreements with the Company which provide for various benefits in the
event of termination of employment following the Merger;
- Messrs. Marshall, Olney and Frew and Ms. Pritchard are indebted to the
Company in the aggregate amount of $2,275,000, which will be forgiven upon
consummation of the Merger;
- Scott D. Spelfogel, Senior Vice President and General Counsel of the
Company and Vice President and Secretary of the Parent's administering
general partner, will receive a bonus of $175,000 upon consummation of the
Merger;
- Following consummation of the Merger, senior officers of the Parent, who
are anticipated to include Messrs. Olney and Frew and Kenneth J. Richard,
currently the Senior Vice President of Finance and Accounting of the
Company, are expected to be participants in an incentive management
participation plan that will give them an equity interest in the Surviving
Company;
- The Directors and executive officers of the Company will receive an
aggregate of approximately $1,324,000 in payment for cancellation of
options, the vesting of which will accelerate upon consummation of the
Merger; and
- At the Effective Time, two Directors of the Company will be entitled to
receive an aggregate of $140,400 in cash under a Directors' retainer fee
plan.
For a more detailed discussion of the matters mentioned above, see "Special
Factors--Interests of Certain Persons in Matters to be Acted Upon" and "Certain
Relationships and Transactions."
CLOSING DATE
The closing of the Merger (the "Closing") will take place at 10:00 a.m.,
local time in Boston, Massachusetts, on the date (the "Satisfaction Date") which
is the first business day to occur on or after the day which is the later of:
- the tenth calendar day following satisfaction (or waiver by the parties
entitled to the benefit thereof) of the conditions (other than those that
are incapable of being satisfied until the date of the Closing) set forth
in the Merger Agreement; and
- October 15, 1999,
8
<PAGE>
unless another date is agreed to in writing by the parties. The date on which
the Closing occurs is hereinafter referred to as the "Closing Date".
The Parent may unilaterally elect to extend the Closing Date to any business
day on or prior to December 29, 1999 by delivering written notice of such
election to the Company (the "Extension Option"). If the Closing Date is so
extended, none of the conditions to the Parent's and Acquiror's obligations to
consummate the Merger will be required to be satisfied after the Satisfaction
Date, with the exception of certain conditions which are incapable of being
satisfied prior to the Closing Date. The Parent does not currently intend to
exercise the Extension Option. The Certificate of Merger will be filed with the
Secretary of State of the State of Delaware on the Closing Date.
PARTNERSHIP MERGER
Immediately prior to the consummation of the Merger, and in accordance with
the terms of the Agreement and Plan of Merger, dated as of April 13, 1999, by
and among the Parent, BRI Acquisition Sub, LP, a Delaware limited partnership
(the "Acquiror Operating Partnership"), Berkshire Apartments, Inc. and the
Operating Partnership (as amended, the "Partnership Merger Agreement"), the
Acquiror Operating Partnership will be merged (the "Partnership Merger") with
and into the Operating Partnership with the Operating Partnership as the
surviving entity (the "Surviving Operating Partnership").
In connection with the Partnership Merger, subject to satisfaction of
certain conditions, the holders of OP Units will have the right to elect to
receive either $12.25 in cash per OP Unit or preferred or common equity
interests in the Parent. This Proxy Statement does not constitute an offer to
holders of OP Units to make any such election.
The consent of the holders of more than 50% of the OP Units must be obtained
to approve the Partnership Merger. The Company, which held approximately 80.5%
of the outstanding OP Units as of the Record Date, is required by the terms of
the Merger Agreement to vote in favor of the Partnership Merger, thus assuring
the Partnership Merger will be approved. Holders of OP Units will receive
separate consent solicitation materials in connection with the Partnership
Merger. This Proxy Statement does not constitute a solicitation of consents in
respect of the Partnership Merger, and any such solicitation will be made only
pursuant to separate solicitation materials.
VOTING AGREEMENT
Pursuant to a Voting Agreement (the "Krupp Voting Agreement"), dated April
13, 1999, between the Company and Douglas Krupp, Mr. Krupp has agreed to, and to
cause his affiliates to, vote the Common Stock which they own (including any
shares of Common Stock issued after the date the Krupp Voting Agreement was
executed) for approval and adoption of the Merger Proposal and the approval of
the transactions contemplated thereby. In addition, the Krupp Voting Agreement
provides that Mr. Krupp will, and will cause his affiliates to, vote the OP
Units that they own for approval and adoption of the Partnership Merger
Agreement and the approval of the transactions contemplated thereby.
The Krupp Voting Agreement is an exhibit to the Rule 13e-3 Transaction
Statement on Schedule 13E-3 filed with the Commission with respect to the
Merger. See "Where You Can Find More Information." The summaries of the Voting
Agreement set forth in this Proxy Statement do not purport to be complete and
are subject to, and qualified in their entirety by, the text of the Voting
Agreement.
9
<PAGE>
CONDITIONS TO THE MERGER
There are a number of conditions that must be satisfied before the Company,
the Parent and the Acquiror are obligated to complete the Merger. These
conditions are:
- the holders of a number of shares of Common Stock and Preferred Stock
(voting on an as-converted basis), voting as a single class, representing
a majority of the total number of outstanding shares of Common Stock
(after giving effect to a deemed conversion of the Preferred Stock) must
approve the Merger Proposal;
- the holders of a majority of the total number of outstanding shares of
Preferred Stock must approve the Merger Proposal;
- there can be no legal restraints or prohibitions that prevent completion
of the Merger, the Partnership Merger or the other transactions
contemplated by the Merger Agreement; and
- all applicable waiting periods under the Hart-Scott Rodino Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), if any, must have
expired or have otherwise been terminated. See "The Merger--Regulatory
Requirements."
There are additional conditions that must be satisfied before the Parent and
the Acquiror are obligated to complete the Merger. These conditions are:
- the representations and warranties the Company made in the Merger
Agreement must be true and correct, as of the date of the Merger Agreement
and the Satisfaction Date, in all material respects, except for
representations and warranties that are qualified by their terms as to
materiality, which must be true in all respects;
- the Company must perform in all material respects all obligations required
to be performed by it pursuant to the terms of the Merger Agreement;
- the Parent and the Acquiror must have received tax opinions as to the
qualification of the Company as a real estate investment trust ("REIT")
within the meaning of the Internal Revenue Code of 1986, as amended (the
"Code"), and as to the treatment of the Operating Partnership, as a
partnership for federal income tax purposes from the Company's counsel,
Hale and Dorr LLP, and from the Special Committee's counsel, Baker &
Hostetler LLP;
- no material adverse changes to the Company's business may have occurred
since the date of the Merger Agreement, including no change of law
resulting in a material increase in the risk that the Company would not
qualify as a REIT;
- all necessary third-party consents and waivers, other than those that were
disclosed in writing by the Company on or prior to April 13, 1999 or those
which, if not obtained would not have a "Buyer Material Adverse Effect" or
"Seller Material Adverse Effect" (each such term as defined in the Merger
Agreement), must have been obtained and not subsequently revoked;
- the Company must convert certain of its subsidiaries into Delaware limited
liability companies or liquidate such subsidiaries;
- the Company must have complied with certain conditions set forth in the
Partnership Merger Agreement; and
- the Partnership Merger must have been consummated.
There are additional conditions that must be satisfied before the Company is
obligated to complete the Merger. These conditions are:
- the representations and warranties of the Parent and the Acquiror made in
the Merger Agreement must be true and correct, as of the date of the
Merger Agreement and the
10
<PAGE>
Satisfaction Date, in all material respects, except for representations
and warranties that are qualified by their terms as to materiality, which
must be true in all respects;
- each of the Parent and the Acquiror must perform in all material respects
all obligations required to be performed by the Parent and the Acquiror,
respectively, pursuant to the terms of the Merger Agreement;
- no change may have occurred since the date of the Merger Agreement in the
business, financial condition or results of operations of the Acquiror and
the Acquiror's subsidiaries, taken as a whole, or the Parent and the
Parent's subsidiaries, taken as a whole, that has had or would reasonably
be expected to have a material adverse effect on the ability of the
Acquiror, the Acquiror Operating Partnership or the Parent to consummate
the transactions contemplated by the Merger Agreement and the Partnership
Merger Agreement;
- the Company must have received a tax opinion from special counsel to the
Acquiror, to the effect that, for federal income tax purposes, holders of
OP Units who elect to exchange all of their OP Units for common or
preferred units of the Parent pursuant to the Partnership Merger will
recognize no income, gain or loss upon the exchange;
- all necessary third-party consents and waivers, other than those that were
disclosed in writing by the Company on or prior to April 13, 1999 or those
which, if not obtained, would not have a Buyer Material Adverse Effect, a
Seller Material Adverse Effect or a "Parent Material Adverse Effect" (as
such term is defined in the Merger Agreement), must have been obtained and
not subsequently revoked;
- the Parent and the Acquiror must have complied with certain conditions set
forth in the Partnership Merger Agreement; and
- the Company and the Operating Partnership must have received an opinion by
a reputable expert firm selected by the Parent and reasonably acceptable
to the Company as to the solvency and adequate capitalization of the
Company and the Operating Partnership immediately before, and of the
Surviving Company and the Surviving Operating Partnership immediately
after, giving effect to the Merger and the Partnership Merger.
Notwithstanding anything to the contrary in the Merger Agreement, the
initiation, threat or existence of any legal action of any kind with respect to
the Merger Agreement or the Partnership Merger Agreement or any transaction
contemplated by the Merger Agreement or the Partnership Merger Agreement,
including, without limitation, any action initiated, threatened or maintained by
any Stockholder or holder of OP Units, whether asserting his, her or its
appraisal rights, claims under any federal or state securities law, contract or
tort claims, claims for breach of fiduciary duty or otherwise, will not
constitute a failure of specified conditions set forth in the Merger Agreement,
unless that action has resulted in the granting of injunctive relief that
prevents the consummation of the Merger and the other transactions contemplated
by the Merger Agreement and the Partnership Merger Agreement and such injunctive
relief has not been dissolved or vacated.
The mutual conditions can be waived if waiver is legally permitted and both
parties agree. The conditions the Company must meet can be waived by the
Acquiror and the conditions the Parent and the Acquiror must meet can be waived
by the Company.
TERMINATION OF THE MERGER AGREEMENT
The Merger Agreement may be terminated at any time prior to the Effective
Time, whether before or after approval by the Company's Stockholders:
- by mutual written consent duly authorized by the Parent and the Company's
Board of Directors;
11
<PAGE>
- by the Acquiror or the Parent, upon a breach of any representation,
warranty, covenant, obligation or agreement set forth in the Merger
Agreement on the part of the Company such that certain conditions set
forth in the Merger Agreement are not satisfied or would be incapable of
being satisfied within 30 days after the giving of written notice to the
Company;
- by the Company, upon a breach of any representation, warranty, covenant,
obligation or agreement set forth in the Merger Agreement on the part of
the Acquiror or the Parent, in either case such that certain conditions
set forth in the Merger Agreement are not satisfied or would be incapable
of being satisfied within 30 days after the giving of written notice to
the Acquiror or the Parent;
- by the Acquiror, the Parent or the Company, if any judgment, injunction,
order, decree or action by any governmental entity of competent authority
preventing the consummation of the Merger has become final and
nonappealable;
- by the Acquiror, the Parent or the Company, if the Merger has not been
consummated on or before December 31, 1999, provided that a party may not
terminate the Merger Agreement for this reason if such party shall have
breached in any material respect its representations, warranties or
obligations under the Merger Agreement in any manner that shall have
proximately contributed to the failure of the Merger to be consummated on
or before December 31, 1999;
- by either the Company (unless the Company is in breach of its obligations
set forth in the Merger Agreement with respect to this Proxy Statement or
the Special Meeting) or the Acquiror or the Parent if, upon a vote at a
duly held meeting of the Stockholders or any adjournment or postponement
thereof, the requisite Stockholder approval has not been obtained;
- by the Company, prior to the Special Meeting, if the Board of Directors
has withdrawn or modified its approval or recommendation of the Merger or
the Merger Agreement in connection with, or approved or recommended, a
bona fide acquisition proposal made by a third party which the Board of
Directors or a committee of the Board determines in good faith (after
consultation with its financial advisor) to be more favorable to the
Stockholders than the Merger and which the Board of Directors (or
committee) determines is reasonably capable of being consummated (a
"Superior Acquisition Proposal"); but no such termination will be
effective under circumstances in which a $25,000,000 break-up fee is
payable by the Company and the Operating Partnership pursuant to the terms
of the Merger Agreement, unless within 15 days after such termination,
such break-up fee is paid to the Parent in full by the Company and the
Operating Partnership (see "The Merger--Termination Fees and Expenses" for
a discussion of break-up fees and amounts reimbursable for expenses in the
event the Merger Agreement is terminated);
- by the Acquiror or the Parent if:
-- prior to the Special Meeting, the Board of Directors has withdrawn or
modified in any manner adverse to the Acquiror its approval or
recommendation of the Merger or the Merger Agreement, or approved or
recommended any acquisition proposal from a third party, or
-- the Company has entered into a definitive agreement with respect to any
acquisition proposal from a third party;
- by the Company if the Acquiror has not closed the equity funding
contemplated by the Agreement of Limited Partnership of the Parent (the
"Parent Partnership Agreement") and the borrowings contemplated by either
(i) the debt commitment letter, dated April 13, 1999, among the Parent,
Whitehall Real Estate Limited Partnership XI ("Whitehall") and Blackstone
Real
12
<PAGE>
Estate Acquisitions III L.L.C. ("Blackstone") (the "W/B Debt Commitment
Letter") or (ii) the debt commitment letter, dated July 29, 1999 (the
"Freddie Mac Commitment Letter"), between the Parent and Reilly Mortgage
Group, Inc. (the "Lender"):
-- on or prior to the Satisfaction Date, or
-- on or prior to December 29, 1999, if (i) the Parent has exercised the
Extension Option, (ii) the conditions relating to the absence of legal
restraints and prohibitions have been satisfied, and (iii) the Company
has delivered a written notice to the Parent and the Acquiror
certifying its ability to satisfy the conditions relating to the
conversion of the Company's subsidiaries into Delaware limited
liability companies or the liquidation of such subsidiaries; and
- by the Parent or the Acquiror, if an acquisition proposal from a third
party that is publicly announced has been commenced or communicated in
writing to the Company and contains a proposal as to price and:
-- the Company has not rejected such proposal within ten business days
after the date of receipt thereof by the Company or within ten business
days after the date its existence first becomes publicly announced, if
sooner, or
-- the Company has failed to confirm the recommendation of the Board of
Directors to the Stockholders approving the Merger and adopting the
Merger Agreement within ten business days after being requested by the
Acquiror to do so.
TERMINATION FEES AND EXPENSES
If the Merger Agreement is terminated for certain of the reasons described
above, the Company and the Operating Partnership will be obligated to pay the
Parent, or the Parent and the Acquiror will
be obligated to pay the Company, on behalf of the Operating Partnership, the
holders of Common Stock and the holders of OP Units:
- a break-up fee in the amount of $25,000,000 (which amount is increased to
$50,000,000 in the event of a payment by the Acquiror or the Parent if the
Parent has previously exercised the Extension Option); and/or
- the lesser of certain fixed amounts and the out-of-pocket expenses
incurred by the party to which the payment is to be made in connection
with the Merger Agreement and the transactions contemplated thereby.
See "The Merger--Termination Fees and Expenses."
FINANCING; SOURCE OF FUNDS
The total amount of funds required by the Parent in connection with the
consummation of the Merger and the Partnership Merger is estimated to be
approximately $1.0 billion, including:
- Payment of the Merger Consideration to Nonaffiliated Stockholders in the
amount of approximately $530 million.
- Payment of cash to holders of OP Units (assuming that all of such holders,
except for Mr. Krupp and his affiliates, elect to receive cash) in the
amount of approximately $50 million (if all of such holders do not so
elect, the amount of cash required will be reduced).
- Repayment of debt in the amount of approximately $394 million.
- Payment in respect of stock options and payment to two Directors under a
Directors' retainer fee plan in the aggregate amount of approximately $2
million.
13
<PAGE>
- Payment of fees and expenses (including debt prepayment fees and financing
fees) in the amount of approximately $44 million.
The partners of the Parent have agreed to contribute up to an aggregate of
$316,349,295 in equity capital to the Parent. The general partners of the Parent
also have the ability to require Whitehall and its affiliates who are partners
in the Parent, affiliates of Blackstone and Douglas Krupp who are partners in
the Parent, to contribute additional cash equity to the Parent. In addition,
pursuant to the W/B Debt Commitment Letter and subject to the terms and
conditions thereof, each of Whitehall and Blackstone has severally agreed to
provide 50% of an aggregate amount of debt financing not to exceed $755 million.
On July 29, 1999 the Parent entered into the Freddie Mac Commitment Letter
(one of these properties may be acquired subsequent to the consummation of the
Merger, in which case the loan proceeds available at Closing will be reduced)
which provides for up to $708,344,000 in mortgage loans in respect of properties
expected to be owned by the Parent upon consummation of the Merger (one of these
properties may be acquired subsequent to the consummation of the merger, in
which case the loan proceeds, available at Closing will be reduced). The Parent
currently expects to borrow funds as contemplated by the Freddie Mac Commitment
Letter concurrently with the consummation of the Merger, in lieu of borrowing
funds pursuant to the W/B Debt Commitment Letter. See "The Merger-- Financing;
Source of Funds." In addition, to the extent the Company has a positive cash
balance at the time of the Merger, such cash will be available to be used by the
Parent to finance the Merger. The Company has contracted to sell seven of its
properties for an aggregate net sales price of approximately $59 million, which
sales are expected to be completed prior to the Closing. In addition, the Parent
expects to refinance one property owned by the Company and incur additional
mortgage debt on five properties owned by the Company, concurrently with or
shortly after the Closing; If consummated, these financings are expected to
provide an aggregate of approximately $63 million of Loan Proceeds to Parent, or
approximately $29 million of net proceeds after repayment of existing debt on
the Property being refinanced. Obtaining financing for the Merger is not a
condition to the obligations of the Parent or the Acquiror under the Merger
Agreement or the Partnership Merger Agreement.
Both the W/B Debt Commitment Letter and the Freddie Mac Commitment Letter
are subject to conditions to closing.
FEDERAL INCOME TAX CONSEQUENCES
You will be taxed on your receipt of the $12.25 per share of Common Stock
and $28.75 per share of Preferred Stock (together with 115% of any Accrued
Dividends) if and to the extent that the amount you receive exceeds your tax
basis in your Common Stock or Preferred Stock, as the case may be. Determining
the tax consequences of the Merger can be complicated. You should consult your
tax advisor in order to understand fully how the Merger will affect you.
APPRAISAL RIGHTS
Under the Delaware General Corporation Law (the "DGCL"), holders of shares
of Common Stock and Preferred Stock have the right to seek an appraisal of, and
to be paid the fair value of, their shares of Common Stock and Preferred Stock.
Section 262 of the DGCL, which governs the rights of stockholders who wish to
seek appraisal of their shares, is summarized under the heading "The
Merger--Appraisal Rights" and is attached as Appendix E to this Proxy Statement.
14
<PAGE>
INFORMATION CONCERNING THE SPECIAL MEETING
TIME, PLACE AND DATE
This Proxy Statement is being furnished to the holders of the outstanding
shares of Common Stock and Preferred Stock of the Company in connection with the
solicitation of proxies by the Board of Directors for use at the Special Meeting
of Stockholders of the Company to be held on , 1999 at 10:00 a.m.,
local time, at the offices of Hale and Dorr LLP, 60 State Street, Boston,
Massachusetts, including any adjournments or postponements thereof.
PURPOSE OF THE SPECIAL MEETING
At the Special Meeting, holders of Voting Securities will consider and vote
upon a proposal to approve and adopt the Merger Proposal. Additional information
concerning the Special Meeting and the Merger Agreement is set forth below and a
copy of the Merger Agreement is attached as Appendix A to this Proxy Statement.
The summaries of the portions of the Merger Agreement set forth in this Proxy
Statement do not purport to be complete and are subject to, and are qualified in
their entirety by reference to, the text of the Merger Agreement.
At a meeting held on April 13, 1999, all of the members of the Board of
Directors present (one member was absent), based upon the unanimous
recommendation of the Special Committee, determined that the terms of the Merger
Proposal are fair to, and in the best interests of, the Nonaffiliated
Stockholders.
THE SPECIAL COMMITTEE AND THE BOARD OF DIRECTORS RECOMMEND THAT STOCKHOLDERS
VOTE FOR APPROVAL AND ADOPTION OF THE MERGER PROPOSAL. STOCKHOLDERS SHOULD BE
AWARE THAT CERTAIN OF THE MEMBERS OF THE BOARD OF DIRECTORS HAVE CONFLICTS OF
INTEREST WITH RESPECT TO THE MERGER. SEE "SPECIAL FACTORS--INTERESTS OF CERTAIN
PERSONS IN MATTERS TO BE ACTED UPON" AND "CERTAIN RELATIONSHIPS AND
TRANSACTIONS."
RECORD DATE; QUORUM; OUTSTANDING COMMON STOCK AND PREFERRED STOCK ENTITLED TO
VOTE
The Record Date for the Special Meeting has been fixed as the close of
business on August 16, 1999. Only holders of record of Common Stock and
Preferred Stock on the Record Date are entitled to notice of and to vote at the
Special Meeting.
Holders of Common Stock on the Record Date are entitled to one vote on
matters properly presented at the Special Meeting for each share of Common Stock
held. Holders of Preferred Stock are entitled to vote on an "as-converted"
basis, together with the holders of Common Stock as a single class, on all
matters on which the holders of Common Stock are entitled to vote. Each share of
Preferred Stock is convertible, subject to the terms of the Certificate of
Designation with respect thereto, into 2.0756 shares of Common Stock, based on a
conversion price of $12.04.
Accordingly, on the Record Date, there were outstanding shares of Common
Stock and Preferred Stock entitled to cast a total of 43,041,278 votes, of which
37,360,361 votes could be cast by holders of Common Stock and 5,680,917 votes by
holders of Preferred Stock. Of such shares, as of the Record Date, 522,303
shares of Common Stock were owned by Douglas Krupp (directly and through his
affiliates), the Company's Chairman of the Board and an affiliate of the Parent
and the Acquiror, 44,984 shares of Common Stock were owned by David Olney, the
Company's Executive Vice President and Chief Investment Officer and the
President of the administering general partner of the Parent, and 15,000 shares
of Common Stock were owned by George Krupp, an affiliate of the Parent and the
Acquiror. See "--Vote Required."
The holders of OP Units will have no rights in their capacity as such
holders to vote at the Special Meeting.
15
<PAGE>
A list of Stockholders will be available for examination by holders of
Common Stock or Preferred Stock, for any purpose related to the Special Meeting,
during the ten-day period preceding the Special Meeting, at the offices of
Berkshire Realty Company, Inc., One Beacon Street, Suite 1550, Boston,
Massachusetts, 02108; telephone (888) 867-0100.
The presence at the Special Meeting in person or by proxy of the holders
entitled to cast a majority of the votes that could be cast by the holders of
Voting Securities will constitute a quorum for the transaction of business by
the holders of Common Stock and Preferred Stock at the Special Meeting. The
presence at the Special Meeting in person or by proxy of the holders of a
majority of the shares of Preferred Stock outstanding on the Record Date will
constitute a quorum for purposes of the separate vote of the Preferred Stock.
Shares of Common Stock and Preferred Stock present in person or represented by
proxy (including shares whose holders abstain or do not vote with respect to one
or more of the matters presented for Stockholder approval) will be counted for
purposes of determining whether a quorum exists at the Special Meeting.
VOTE REQUIRED
The following votes are required to approve and adopt the Merger Proposal:
- the affirmative vote of the holders of a number of shares of Common Stock
and Preferred Stock (voting on an as-converted basis), voting as a single
class, issued and outstanding on the Record Date representing a majority
of the total number of outstanding shares of Common Stock (after giving
effect to a deemed conversion of the Preferred Stock); and
- the affirmative vote of the holders of a majority of the Preferred Stock
issued and outstanding on the Record Date.
Shares whose holders abstain from voting as to the Merger Proposal, and
shares held in "street name" by brokers or nominees who indicate on their
proxies that they do not have discretionary authority to vote such shares as to
such matter, are nonetheless considered outstanding shares and an abstention or
failure to vote for any reason will have the same effect as a vote against the
Merger Proposal.
Mr. Krupp has agreed, pursuant to the Krupp Voting Agreement, to vote his
shares of Common Stock, and to cause his affiliates to vote their shares of
Common Stock, for approval and adoption of the Merger Proposal. As of the Record
Date, Mr. Krupp and his affiliates owned an aggregate of 522,303 shares of
Common Stock. Because Mr. Krupp will vote all of his shares of Common Stock, and
will cause his affiliates to vote all of their shares of Common Stock, for
approval and adoption of the Merger Proposal, approval and adoption of the
Merger Proposal will require the affirmative vote of 49.4% of the votes that
could be cast by Nonaffiliated Stockholders.
Directors, executive officers and affiliates of the Company (including
Douglas Krupp and his affiliates) who own or control Common Stock or Preferred
Stock (constituting approximately 13.1% of the outstanding Voting Securities and
85.4% of the outstanding Preferred Stock in the aggregate) have indicated to the
Company that they currently intend to vote all such shares for approval and
adoption of the Merger Proposal. If they do so, approval and adoption of the
Merger Proposal will require the affirmative vote of 42.5% of the votes that
could be cast by Stockholders other than such persons.
The Merger is subject to conditions in addition to the required vote of the
Stockholders. See "The Merger--Conditions."
ACTION TO BE TAKEN UNDER THE PROXY
All proxy cards in the enclosed form that are properly executed and returned
to the Company's transfer agent and registrar, American Stock Transfer & Trust
Company, on or before the date of the
16
<PAGE>
Special Meeting, and not revoked, will be voted at the Special Meeting or any
adjournments or postponements thereof in accordance with any instructions
thereon, or, if no instructions are provided, will be voted FOR adoption and
approval of the Merger Proposal. Any Stockholder who has given a proxy pursuant
to this solicitation may revoke it by attending the Special Meeting and giving
written notice to the Secretary of the Company of his or her intention to vote
in person, without compliance with any other formalities. In addition, any proxy
given pursuant to this solicitation may be revoked prior to the Special Meeting
by delivering an instrument revoking it or a duly executed proxy bearing a later
date to the Company's transfer agent and registrar. Stockholders who hold shares
through a broker must notify the broker in order to revoke a proxy.
Management of the Company does not know of any matters other than those set
forth herein which may come before the Special Meeting. If any other matters are
properly presented at the Special Meeting for action, the persons named in the
enclosed form of proxy and acting thereunder will vote in accordance with their
discretion on such matters.
PROXY SOLICITATION
The expense of preparing, printing and mailing this Proxy Statement and the
proxies solicited hereby will be borne by the Company. In addition to the use of
the mails, proxies may be solicited by officers and Directors and regular
employees of the Company, without additional remuneration, by personal
interviews, written communication, telephone, telegraph or facsimile
transmission. The Company also will request brokerage firms, nominees,
custodians and fiduciaries to forward proxy materials to the beneficial owners
of Common Stock and Preferred Stock held of record by such brokerage firms,
nominees, custodians and fiduciaries and will provide reimbursement for the cost
of forwarding the material in accordance with customary charges. In addition,
the Company has retained Georgeson & Company Inc. to assist in the solicitation
of proxies at an estimated fee of $100,000 plus reimbursement of reasonable
expenses to be paid by the Company.
17
<PAGE>
GENERAL
THE COMPANY
The Company was formed on April 26, 1990 and commenced operations on June
27, 1991. The Company's operations consist primarily of the acquisition,
renovation, rehabilitation, development and operation of apartment communities
located in the Mid-Atlantic and Southeast regions of the United States, Florida
and Texas. As of the Record Date, the Company owned 82 apartment communities
consisting of 24,387 units. The Company has approximately 655 multifamily units
under development and holds two parcels of land for future development.
The Company reorganized as an umbrella partnership on May 1, 1995 when the
Company contributed substantially all of its assets subject to substantially all
of its liabilities to the Operating Partnership. The Company, in its capacity as
the Special Limited Partner of the Operating Partnership and through its sole
ownership of Berkshire Apartments, Inc., the general partner of the Operating
Partnership, held approximately 80.5% of the OP Units as of the Record Date.
On August 26, 1999 (the most recent practicable date prior to the printing
of this Proxy Statement), the high and low sales prices of the Company's Common
Stock on the NYSE were $11.81 and $11.75, respectively.
The address of the principal business and the principal executive offices of
the Company is One Beacon Street, Suite 1550, Boston, Massachusetts 02108;
telephone (888) 867-0100.
THE PARENT AND THE ACQUIROR
The Parent is Berkshire Realty Holdings, L.P., a Delaware limited
partnership recently organized by The Berkshire Companies Limited Partnership, a
Massachusetts limited partnership ("BCLP"), Whitehall Street Real Estate Limited
Partnership XI, a Delaware limited partnership ("Whitehall"), Blackstone Real
Estate Acquisitions III L.L.C., a Delaware limited liability company
("Blackstone"), and their affiliates. The Parent was formed for the purpose of
owning and conducting the business of the Company following the Merger. The
Acquiror is BRI Acquisition, LLC, a Delaware limited liability company and a
wholly owned subsidiary of the Parent. The Acquiror was organized for the
purpose of effecting the Merger.
The Parent and the Acquiror currently have no material assets, do not own
any shares of Common Stock or OP Units and have not engaged in any activities
except those incident to their formation and in connection with the Merger. The
principal business address of the Parent and the Acquiror is One Beacon Street,
Suite 1500, Boston, Massachusetts 02108; telephone (617) 523-7722.
BCLP is an affiliate of Douglas Krupp, the Chairman of the Board of the
Company. BCLP has two general partners, KGP-1, Incorporated, a Massachusetts
corporation ("KGP-1"), and KGP-2, Incorporated, a Massachusetts corporation
("KGP-2"). Douglas Krupp is a 50% stockholder of each of the general partners of
BCLP. His brother, George Krupp, owns the other 50% of each entity. See "Special
Factors--Interests of Certain Persons in Matters to be Acted Upon."
As of the Record Date, Douglas Krupp and his affiliates (including BCLP)
owned 522,303 shares, or approximately 1.4%, of the outstanding Common Stock and
5,344,066, or approximately 11.5%, of the outstanding OP Units. OP Units are
convertible on a one-for-one basis into shares of Common Stock or cash, as
determined by the Operating Partnership. While such OP Units, together with the
Common Stock owned by Mr. Krupp and his affiliates, potentially represent 13.7%
of the outstanding shares of the Common Stock as of the Record Date, the
Operating Partnership's partnership agreement limits conversions of OP Units
such that Mr. Krupp and his affiliates only have the right to convert that
number of units resulting in their owning a maximum aggregate of 9.8% of the
outstanding shares of the Common Stock. In addition, because Mr. Krupp had not
converted any such OP Units as of the
18
<PAGE>
Record Date, he will not be entitled to vote at the Special Meeting any of the
shares of Common Stock into which such OP Units are convertible. In any event,
affiliates of Mr. Krupp have agreed to contribute (and therefore not to convert)
4,904,066 of the OP Units owned by them to the Parent prior to the Effective
Time.
In connection with the acquisition by the Company on March 1, 1996 of an
advisory services business previously owned by BCLP, the Company is required to
cause the Operating Partnership to issue a specified number of OP Units to BCLP
if the per share price of the Common Stock exceeds certain share price
benchmarks equal to $13.00 or higher at any time within a specified period. If
the Merger occurs, such OP Units will no longer be issuable. See "Special
Factors--Interests of Certain Persons in Matters to be Acted Upon--Business
Contribution Agreement."
As of February 22, 1999, GS Group and GS&Co. (each as defined in "Management
of the Parent and the Acquiror; General Partners of the Parent--Whitehall GP"
and each of which is an affiliate of Whitehall) may be deemed to beneficially
own 27,208 shares of Common Stock held in client accounts with respect to which
GS&Co. or employees of GS&Co. have voting or investment discretion, or both
("Managed Accounts"). GS&Co. purchased these shares of Common Stock in the
ordinary course of its business on behalf of the Managed Accounts. GS&Co., GS
Group and Whitehall each disclaims beneficial ownership of Common Stock held in
Managed Accounts.
19
<PAGE>
SPECIAL FACTORS
BACKGROUND OF THE MERGER
Overview of Charter Provisions. The Company's Certificate of Incorporation
has a provision which requires the Company's Board of Directors to submit to the
Stockholders, by December 31, 1998, a plan of liquidation (the "Liquidation
Plan") providing for the sale of all of the Company's assets and the
distribution of the net proceeds to the Stockholders. In light of that
requirement, the Company engaged Lazard and Lehman in May 1998 to help the
Company evaluate its strategic alternatives, with a view to maximizing value for
the Company and its Stockholders and the holders of OP Units. Those alternatives
included adoption of the Liquidation Plan, a strategic business combination
involving the Company and a continuation of the Company's existing operations.
Preliminary Steps. In May 1998, the Board of Directors instructed Lazard to
solicit indications of interest in a strategic combination with the Company.
Between the end of May and mid-August 1998, Lazard contacted 35 companies with
considerable U.S. real estate holdings to explore interest in a possible
combination with the Company. Lazard provided a Confidential Offering Memorandum
to 27 parties that had expressed possible interest in a combination (each of
whom had signed a confidentiality agreement), and provided further detailed
financial and other information to those parties that requested it.
During the summer and early fall of 1998, conditions in the market for
public REITs deteriorated substantially. For example, on May 29, 1998 the
year-to-date NAREIT Equity REIT Total Return Index was negative 4.38% and on
September 30, 1998, it was negative 15.02%. The NAREIT Equity REIT Total Return
Index is published by the National Association of Real Estate Investment Trusts,
Inc. ("NAREIT"). Index data reflect monthly reinvestment of dividends and are
based upon the monthly closing prices of shares of all tax-qualified equity
REITs (real estate investment trusts at least 75% of whose gross invested assets
are invested in real estate equities), including the Company, listed on the NYSE
and the American Stock Exchange and traded on the NASDAQ National Market System.
Between mid-August 1998 and mid-September 1998, the Company received
preliminary indications of interest from five of the parties that had been in
discussions with Lazard. Four preliminary indications of interest (reflecting
consideration consisting entirely or partially of stock of the bidder) to
acquire the entire Company were from public companies, at prices ranging from
$10.83 to $12.16 per share of Common Stock. The fifth preliminary indication of
interest was from a private real estate company that proposed to acquire only a
portion of the Company, valuing the Common Stock at $13.00 per share, by means
of a merger into the Company that would result in all of the shares of Common
Stock remaining outstanding, with the private real estate company holding a
minority interest but controlling management of the Company. The Board of
Directors instructed Lazard to attempt to persuade those five parties to raise
their prices and to determine whether any private real estate companies might be
interested in acquiring the entire Company.
Management Group's Exploration of a Possible Bid. In mid-September 1998,
Douglas Krupp, the Chairman of the Board of Directors of the Company, contacted
the financial advisor Greenhill & Co. LLC ("Greenhill") in order to generally
explore his options with respect to possibly making his own proposal to acquire
the Company, although he had not then made a determination as to whether he
would make such a bid. Also in mid-September, 1998, Mr. Krupp advised members of
the Board of Directors of the Company that he would be considering over the next
few weeks whether to make his own proposal with respect to a possible
acquisition of the Company, and that he had retained Paul, Weiss, Rifkind,
Wharton & Garrison ("Paul, Weiss") as his legal counsel to advise him with
respect to his possible role as a bidder for the Company.
20
<PAGE>
Mr. Krupp subsequently had various discussions with Greenhill and, on
September 25, 1998, Greenhill was formally retained by his affiliate, BCLP, to
act as the exclusive financial advisor of Mr. Krupp and his affiliates in
connection with a potential acquisition of the Company. Mr. Krupp, together with
certain of his affiliates and employees of the Company potentially participating
with him in a possible bid to acquire the Company, are referred to in this Proxy
Statement as the "Management Group."
In the course of considering its options, the Management Group, with the
assistance of Greenhill, determined that one or more potential equity partners,
who would provide approximately $250 million in cash, and one or more debt
financing sources, who would provide approximately $700 million as a bridge
loan, would be needed in order to finance the possible acquisition of the
Company. In late September 1998, the Management Group met with representatives
of Greenhill to compile a list of appropriate candidates with which to conduct
discussions regarding the possibility of providing debt and equity financing. At
that time, approximately 30 prospective financial parties were identified, each
of which was contacted by Greenhill to determine if there was any interest in
providing debt or equity financing for the proposed transaction. One of the
approximately 30 prospective financing participants was Whitehall and another
was Westbrook Real Estate Fund III ("Westbrook"), an affiliate of the holder of
a majority of the Preferred Stock and of Paul Kazilionis, a Director of the
Company.
The Management Group, with the assistance of Greenhill, prepared a
confidential memorandum for distribution to the identified parties. Greenhill
began to hold meetings with the various parties identified as potential
financing participants in order to solicit indications of interests from them. A
total of 12 of the contacted parties (including Whitehall and Westbrook)
indicated an interest in pursuing a transaction with the Management Group,
signed confidentiality agreements and were provided a copy of the confidential
memorandum. Of these 12 prospective financing participants, Whitehall and one
other party submitted written proposals to the Management Group (which are
described below) and Westbrook and three other parties orally indicated an
interest in pursuing a transaction, but only as part of a consortium of
financing parties that would collectively provide the cash requirements for the
transaction. Various meetings were then held throughout October among Greenhill,
the Management Group and the interested parties. After preliminary discussions
with Westbrook, Westbrook indicated that it was not then interested in
proceeding with a possible transaction.
On October 13, 1998, Whitehall delivered a draft term sheet to Greenhill
with respect to a possible joint venture between Whitehall and the Management
Group to acquire the Company. Preliminary discussions were held on October 13
and 14, 1998 between Whitehall and the Management Group, both directly and
through their respective legal and financial advisors, to negotiate the economic
and governance issues raised in the draft term sheet. At a meeting held on
October 14, 1998, a representative of Whitehall indicated to the Management
Group that he believed Whitehall would be in a position to contribute a
significant portion of the cash equity necessary to consummate a possible
transaction, assuming satisfactory agreement on all economic and governance
issues with respect to the joint venture that would be formed to acquire the
Company. However, given the then existing turmoil in the financing markets, he
could not assure the Management Group that Whitehall would be able to obtain the
necessary debt financing. No agreement was reached regarding a possible joint
venture between Whitehall and the Management Group at that meeting.
Separately, while discussions were continuing between the Management Group
and Whitehall, a financial party unaffiliated with the Management Group (the
"Potential Partner"), by letter dated October 16, 1998 to Greenhill proposed a
possible joint venture between the Potential Partner and the Management Group to
acquire the Company. In the letter it was proposed that the Potential Partner
would provide 100% of the cash equity and debt financing needed to acquire the
Company. The Management Group and its legal and financial advisors met with
representatives of the Potential Partner and its legal advisors on October 19,
1998 to discuss a possible bid to acquire the Company by
21
<PAGE>
a joint venture to be formed between the Potential Partner and the Management
Group, as well as various economic and governance issues relating to the
potential joint venture. At the meeting the Potential Partner indicated that,
assuming satisfactory due diligence regarding the Company and agreement on
economic and governance issues relating to the joint venture, the Potential
Partner would be prepared to provide the necessary debt and cash equity
financing needed to consummate a possible transaction.
On October 21, 1998, the Potential Partner delivered to the Management Group
an "outline of discussions" which the Management Group believed was not
consistent with the discussions held with the Potential Partner on October 19.
Acting on the basis of this belief, the Management Group contacted Whitehall
again to see if it would be interested in pursuing a potential joint venture
with the Management Group. The Whitehall representative again indicated that,
given the turmoil in the financing markets, he could not assure the Management
Group that Whitehall would be able to obtain the debt financing needed to
consummate the transaction.
During the following week, separate conversations were held between the
Management Group and representatives of Whitehall, on the one hand, and between
the Management Group and representatives of the Potential Partner, on the other,
to explore issues relating to an acquisition bid by a possible joint venture
between those respective parties. On October 27, 1998, the Potential Partner
advised Greenhill that it would not be able to provide 100% of the necessary
cash equity for a possible transaction, but rather could only commit to 50% of
the necessary cash equity. However, it could provide all of the necessary debt
financing (assuming satisfactory completion of due diligence and internal
approvals).
Despite the fact that the Potential Partner could not be the sole source of
the cash equity and debt financing needed for the transaction, the Management
Group was inclined to select the Potential Partner as its partner because, at
that time, the Potential Partner was the only acceptable financing source
willing to commit to provide the necessary debt financing. On October 28, 1998,
the Management Group and its legal and financial advisors met with the Potential
Partner and its legal advisors to further discuss economic and governance issues
relating to a possible joint venture. Following that meeting, Whitehall was
advised by the Management Group that the Management Group would not be pursuing
discussions with Whitehall regarding a possible joint venture between the two of
them.
On October 30, 1998, a revised "outline of discussions" was exchanged
between the Potential Partner and the Management Group which contemplated a
possible joint venture between the Management Group, the Potential Partner and a
"to-be-identified third party investor" that would provide 50% of the cash
equity required to consummate an acquisition of the Company. It was agreed that
the Potential Partner would seek to identify a third party investor to provide
the remaining cash equity for a possible acquisition bid. The "outline of
discussions" was considered by the Management Group to be preliminary in nature,
because it was subject to satisfactory due diligence and internal approvals by
the Potential Partner, and because the source of 50% of the cash equity required
to consummate any possible acquisition of the Company had not been identified.
No decision was made at this time regarding whether the Management Group would
make a bid to acquire the Company.
Subsequent to October 30, 1998, conversations were held between Greenhill
and Whitehall, and between the Management Group and Whitehall, to determine if
Whitehall would be interested in participating with the Potential Partner in
providing the necessary cash equity for a possible transaction. During the same
time period, the Potential Partner began to conduct due diligence on the
Company, which continued over the following few weeks.
Formation of the Special Committee. At a meeting held on November 12, 1998,
the Company's Board of Directors considered the strategic alternatives available
to the Company: sale of the Company, adoption of a Liquidation Plan or
continuing to operate as an independent company. At that
22
<PAGE>
meeting, Lazard summarized the results of its solicitation of indications of
interest in a strategic combination with the Company.
Lazard reported that the stock price of publicly-held multi-family housing
REITs had declined by approximately 14% on average during 1998 through November
6 and that the market for a strategic combination was significantly less
favorable than it had been in May 1998. Lazard reviewed with the Board of
Directors the indications of interest that it had received, the year-to-date
downturn in total REIT stock returns, the dearth of real estate offerings in the
public equity market and the decline in liquidity during 1998 in the real estate
debt markets. Lazard also discussed with the Board:
- the Company's recent stock trading prices,
- the estimated liquidation value per share achievable under a Liquidation
Plan based on an analysis prepared by management,
- the background, material terms and conditions and per share value to the
Stockholders of two written indications of interest that then remained
outstanding (from two publicly-held multi-family housing REITs) that
proposed to use stock as the form of consideration and that were stated by
the parties expressing the interest to have a value of $11.10 per share of
Common Stock and $12.00 per share of Common Stock, respectively (although
Lazard reported that it had preliminarily determined a range of value for
the latter bid with a mid-point of $11.69 per share, based on
then-existing market conditions),
- the desire of the private real estate company which had expressed
preliminary interest in a transaction to obtain an exclusivity agreement
from the Company and the need, if a transaction were pursued by this
bidder, for the Company to perform substantial due diligence on the bidder
because the contemplated transaction would be in effect an acquisition by
the Company of the bidder,
- the retraction of two other preliminary bids, and
- its belief that the Management Group might decide to submit a bid to
acquire the Company.
At that meeting, David F. Marshall, the Company's Chief Executive Officer,
presented management's operational and financial analysis of the Company's
continuing operations as a going concern and an analysis of the estimated
liquidation proceeds obtainable under a Liquidation Plan and the assumptions
underlying that analysis. FOR A DISCUSSION OF THE PROJECTIONS OF THE COMPANY'S
PERFORMANCE PREPARED BY MANAGEMENT AND FURNISHED TO THE BOARD OF DIRECTORS, SEE
"CERTAIN FINANCIAL PROJECTIONS OF THE COMPANY." FOR A DISCUSSION OF THE ANALYSIS
OF ESTIMATED LIQUIDATION PROCEEDS PROPOSED BY MANAGEMENT AND FURNISHED TO THE
BOARD OF DIRECTORS, SEE "ESTIMATED PROCEEDS PER SHARE IN LIQUIDATION."
Also at that meeting, the Board determined that either a sale of the Company
or a continuation of the Company's existing operations would likely produce
greater value to the Stockholders and the holders of OP Units than adoption of a
Liquidation Plan. Accordingly, the Board instructed Lazard to pursue actively
the indications of interest that remained outstanding and to continue or
initiate discussions with other entities that might have an interest in
acquiring the Company. The Board instructed Lazard to inform the private real
estate company that had requested an exclusivity agreement that the Company was
not prepared to enter into such an agreement at that time.
Because of the potential conflicts of interest between Mr. Krupp and the
Stockholders arising from the Management Group's possible interest in an
acquisition, the Board at its November 12, 1998
23
<PAGE>
meeting appointed a special committee (the "Special Committee") consisting of
Terrance R. Ahern (Chairman), J. Paul Finnegan, E. Robert Roskind and David M.
deWilde, to:
- direct and supervise Lazard and Lehman in connection with consideration of
the Company's strategic alternatives,
- evaluate the Company's strategic alternatives,
- negotiate with parties interested in acquiring or merging with the
Company, and
- make recommendations to the Board concerning the Company's strategic
alternatives and the Board's recommendation to Stockholders regarding
adoption of a Liquidation Plan.
The Board authorized the Special Committee to retain separate counsel and,
in light of Mr. Krupp's involvement in the engagement of Lazard and Lehman, to
retain a separate investment banking firm. Because of the extensive time
commitments and travel anticipated in connection with the Special Committee
performing its duties, the Board of Directors authorized the following
compensation (in addition to the Company's normal fees for attendance at
meetings and reimbursement of expenses) for the members of the Special
Committee: $30,000 for the Chairman of the Special Committee and $15,000 for
each of the other three members of the Special Committee. The Company's counsel,
Hale and Dorr LLP, reviewed with the Board, including the members of the Special
Committee, the nature and scope of the Special Committee's fiduciary duties in
carrying out its authorized functions.
During the ensuing several days, the Special Committee engaged Baker &
Hostetler LLP as its counsel. The Special Committee also engaged Prudential
Securities as its financial advisor to furnish independent advice and
assistance, as appropriate. Thereafter, the Special Committee's Chairman and
counsel and Prudential Securities discussed with Lazard and the Company's
counsel the anticipated receipt of formal bids to acquire the Company and the
bid evaluation and negotiation process.
Continued Discussions. Separately, on November 8, 1998, a meeting was held
among the Management Group, the Potential Partner, Whitehall and Greenhill to
discuss a possible joint venture among the three parties to acquire the Company,
Whitehall having indicated its preliminary interest in providing 50% of the
necessary cash equity for the transaction (assuming agreement on the terms of a
possible joint venture with the Potential Partner and the Management Group).
Subsequent to that meeting, the Management Group continued to hold discussions
with the Potential Partner and Whitehall.
On November 18, 1998, the Management Group was advised by representatives of
the Potential Partner that, in order for the Potential Partner to continue to
consider participating with the Management Group and Whitehall in a possible
transaction, the economic arrangements among the Potential Partner, Whitehall
and the Management Group (which at that time contemplated that the three parties
would participate in the joint venture on a pari passu basis) would have to be
revised.
Discussions were then held throughout the month of November and the first
week of December during which time revised economic arrangements were discussed,
including a proposal by the Potential Partner and Whitehall which contemplated
that the Management Group's economic interest in the joint venture would be
subordinated to that of the Potential Partner and Whitehall (I.E., Whitehall and
the Potential Partner would each receive an amount equal to its capital
contributions plus a specified return on its investment before the Management
Group would receive its capital or any return on its investment), but no
agreement was reached with respect to a possible joint venture among the parties
at that time.
Competitive Bidding Process. The Special Committee held a telephonic
meeting on December 18, 1998, in which representatives of Lazard, Prudential
Securities, Baker & Hostetler LLP and, at the Special Committee's invitation,
Hale and Dorr LLP, participated. The Special Committee formalized its engagement
of Prudential Securities and Baker & Hostetler LLP, following which Lazard
presented a
24
<PAGE>
detailed update on the status of the two outstanding proposals to acquire the
Company (the private real estate company had declined to proceed without an
exclusivity agreement), and Hale and Dorr LLP reported on recent conversations
with Paul, Weiss regarding the progress of the Management Group's efforts to
formulate a possible proposal. Following discussion of how best to ensure a
competitive bidding process designed to maximize value for the Stockholders and
the holders of OP Units, the Special Committee directed Lazard to inform all
interested parties that the Special Committee would receive and consider formal
bids in early January 1999.
The Special Committee also discussed an updated pro forma liquidation
financial analysis prepared by management and a draft of a Liquidation Plan
prepared by Hale and Dorr LLP and made inquiries of Lazard and Prudential
Securities regarding various aspects of the financial analysis. FOR A DISCUSSION
OF THE ESTIMATED LIQUIDATION VALUE OF THE COMPANY AS SET FORTH IN THE DRAFT
LIQUIDATION PLAN, SEE "ESTIMATED PROCEEDS PER SHARE IN LIQUIDATION." The Special
Committee determined that the current proposals from potential acquirors would
likely produce more value for the Stockholders and the holders of OP Units than
would adoption of a Liquidation Plan. The Special Committee determined to
recommend to the Board that the Company file with the Commission a preliminary
proxy statement for presentation of a Liquidation Plan for the Stockholders'
consideration, in light of the requirement contained in the Company's
Certificate of Incorporation that a Liquidation Plan be presented, and that the
proxy statement contain a Board recommendation against Stockholder approval of
the Liquidation Plan.
At a telephonic meeting held on December 30, 1998, the Board reviewed the
Liquidation Plan draft referred to above, a draft preliminary proxy statement
for presentation of the Liquidation Plan to the Stockholders and the analysis
prepared by management for the November 12, 1998 Board meeting regarding
continuation of the Company's existing operations. Following discussion of these
materials and of the Special Committee recommendation described above, the Board
resolved to present the Liquidation Plan to the Stockholders and to recommend
against Stockholder approval of the Liquidation Plan. The Board directed Hale
and Dorr LLP to file with the Commission a preliminary proxy statement
containing a recommendation to that effect. The preliminary proxy statement was
filed with the Commission, on a confidential basis, on December 31, 1998.
On December 23, 1998, Paul, Weiss notified Hale and Dorr LLP that the
Management Group's potential partners had identified in their due diligence
certain issues relating to the Company's technical compliance with the Federal
income tax regulations related to REIT status and that, if a bid were to be made
by the Management Group and those potential partners, the bid would likely
specify resolution of those issues as a condition to closing the acquisition. A
series of discussions concerning these issues ensued among Paul, Weiss, Hale and
Dorr LLP and Baker & Hostetler LLP. Following the discussions, the Company,
based on advice from Hale and Dorr LLP and Baker & Hostetler LLP, determined to
seek a closing agreement from the Internal Revenue Service that would resolve
two of these issues. This agreement was subsequently obtained on March 23, 1999.
Based on advice from its tax advisors, the Company concluded that no action was
necessary with respect to the other issues.
The Special Committee convened a telephonic meeting on January 18, 1999. The
Special Committee determined, based on its discussions with Baker & Hostetler
LLP and Prudential Securities, that it would be in the best interests of the
Company and its Stockholders and the holders of OP Units to defer receipt of
bids for the Company until the Company had an opportunity to pursue further the
resolution of the two tax issues described in the immediately preceding
paragraph. The Special Committee directed its advisors to conduct any ensuing
discussions with prospective acquirors in a manner consistent with that
objective.
Separately, through the months of December 1998 and January 1999, the
Potential Partner continued its due diligence on the Company, and the Management
Group, the Potential Partner and Whitehall continued to discuss the economic and
governance issues relating to a possible joint venture
25
<PAGE>
to acquire the Company. On January 19, 1999, representatives of the Potential
Partner contacted the Management Group to advise it that the Potential Partner
had decided not to proceed with making a proposal to acquire the Company.
The Management Group then discussed with Whitehall the possibility of the
two of them proceeding without the Potential Partner to make a bid to acquire
the Company. Whitehall indicated to the Management Group that, in light of
current market conditions, it believed it would be able to obtain a commitment
from its affiliate, Goldman Sachs Mortgage Company, to provide the necessary
bridge financing and that, subject to satisfactory due diligence of the Company
and agreement on certain economic and governance issues regarding a possible
joint venture between Whitehall and the Management Group, it would be able to
provide 50% of the cash equity necessary to consummate a proposed acquisition of
the Company. However, since Whitehall had previously relied on the due diligence
review conducted by the Potential Partner, it would have to conduct its own due
diligence of the Company in order to be in a position to proceed with a
potential bid, which Whitehall indicated would take approximately 30 days. The
Company was advised of this fact on January 20, 1999.
At a telephonic meeting of the Special Committee held on January 22, 1999,
Lazard and Baker & Hostetler LLP reported on the readiness of the three
identified potential acquirors (the two parties described to the Board at its
November 12, 1998 meeting and the Management Group) to submit formal bids and on
the Company's progress toward resolving the outstanding tax issues. Lazard and
Baker & Hostetler LLP reported that they understood that financing sources were
expected to be in place for a possible bid by the Management Group but that the
Management Group had advised Lazard that these sources would need approximately
30 days to complete due diligence. Lazard also reported that the other two
potential bidders were performing due diligence on the Company. The Special
Committee and its advisors discussed the fixing of an appropriate bidding
deadline to maximize the value achievable through the competitive bidding
process. Following this discussion and based on its conclusion that having a
higher number of viable bidders was likely to maximize value, the Special
Committee directed its financial advisors to inform all potential bidders that
it had established a February 22, 1999 deadline for the submission of final
proposals.
The Special Committee met on February 11, 1999. Baker & Hostetler LLP
reported on the status of the Company's efforts to resolve the outstanding REIT
tax qualification issues. A representative of Hale and Dorr LLP, present by
invitation of the Special Committee, reported that the Management Group had
expressed a desire to have the bid deadline extended to the end of February
1999. The Special Committee, after discussing with its advisors the outstanding
tax issues and the Management Group's request, determined not to extend the
deadline.
During the month of January and the beginning of February 1999, Whitehall,
Greenhill and the Management Group began contacting financial parties in order
to find a partner for the remaining 50% of required cash equity. Six prospective
financing sources were contacted, five of which, including Westbrook, had been
contacted in the Management Group's October 1998 solicitation of financial
partners. Of the prospective financing sources, two were contacted by Whitehall
only, Blackstone being one of them, one was contacted by Greenhill only, two
were contacted by both Greenhill and Whitehall, and one, Westbrook, was
contacted by both Whitehall and the Management Group. All of the prospective
financing sources, including Blackstone and Westbrook, signed amended or
standard confidentiality agreements with Greenhill.
Of these six prospective partners, three stated that they could not provide
funding for the full 50% required, one declined to proceed and two, Blackstone
and Westbrook, orally indicated an interest in pursuing a transaction with
Whitehall and the Management Group. At that time, a draft summary of terms
detailing the proposed economic structure of the partnership to be formed for
the purpose of acquiring the Company was distributed to Blackstone and
Westbrook. Whitehall, the Management Group and Greenhill had various meetings
and conference calls (including due diligence calls) with Blackstone and
Westbrook in order to obtain their comments on the draft summary of terms.
26
<PAGE>
On February 18, 1999, a meeting was held with representatives of the
Management Group, Whitehall and Greenhill (with Blackstone in attendance for
parts of the meeting) to discuss Blackstone's and Westbrook's comments to the
draft summary of terms. At the conclusion of the meeting, the Management Group
and Whitehall selected Blackstone as their potential equity partner in the event
that the Management Group and Whitehall decided to make a bid to acquire the
Company, assuming a resolution of all open issues, and communicated their
selection to Westbrook.
Submission of Aptco Initial Bid. On February 19, 1999, a meeting was held
among representatives of the Management Group, Whitehall and Blackstone and
their respective legal advisors during which various economic and governance
issues relating to a possible joint venture among the three parties to make a
bid to acquire the Company were discussed. Draft documents were prepared and
discussions regarding the terms of the possible joint venture and the financing
for the possible acquisition continued through the evening of February 22, 1999,
the date that the Special Committee had requested bids be submitted. On February
22, 1999, agreement was reached and a joint venture was formed ("Aptco") among
the three parties (the "Aptco Investor Partners") to make a proposal to the
Company to acquire all of the Common Stock of the Company and the OP Units in
the Operating Partnership for a per share/OP Unit price of $11.05 in cash (the
"Aptco Initial Bid"). The Aptco Initial Bid was made pursuant to the following
letter:
February 22, 1999
Lazard Freres & Co., LLC
30 Rockefeller Plaza
New York, New York 10020
Attention: Matthew J. Lustig
Gary Ickowicz
Gentlemen:
Aptco, LLC ("Aptco"), a company formed by affiliates of Douglas Krupp,
Whitehall Street Real Estate Limited Partnership XI ("Whitehall") and
Blackstone Real Estate Acquisitions III L.L.C. ("Blackstone") hereby makes
the following proposal, pursuant to which holders of common stock of
Berkshire Realty Company, Inc. ("BRI") would receive, and holders of limited
partnership interests ("OP Units") in BRI OP Limited Partnership ("OP")
would have the opportunity to receive, $11.05 per share/OP Unit in cash (the
"Cash Price") for their respective interests in the Company.
Our proposal contemplates that the acquisition of BRI would take the
form of a merger (the "BRI Merger") pursuant to which BRI would be merged
with and into Aptco, with Aptco as the surviving entity of the BRI Merger.
Pursuant to the BRI Merger, holders of BRI common stock would receive, in
exchange for their stock, an amount of cash per share equal to the Cash
Price.
Contemporaneously with the BRI Merger, a newly formed subsidiary of
Aptco would merge with and into OP (the "OP Merger"), with OP as the
surviving entity of the OP Merger. Pursuant to the OP Merger, OP Unitholders
would be given the choice to elect to receive, in exchange for each of their
OP Units, one of the following: (a) cash equal to the Cash Price; (b) a
senior preferred equity interest in Aptco with a liquidation preference
equal to the Cash Price, which would entitle the holder to receive
cumulative preferred distributions of available cash on a senior basis equal
to 6% per annum, and would be callable by Aptco after six years or earlier
upon a sale of Aptco (whether by merger, initial public offering, sale of
all or substantially all of its assets, or otherwise) at a price equal to
the liquidation preference; or (c) an equity interest in Aptco that (i)
would be subordinate to the senior preferred equity interest described above
and to senior subordinated equity interests to be held by Whitehall and
Blackstone or their respective affiliates,
27
<PAGE>
but would be generally pari passu with the equity interests to be held by
Douglas Krupp and his affiliates and (ii) would be callable by Aptco after
six years or earlier upon a sale of Aptco (whether by merger, initial public
offering, sale of all or substantially all of its assets, or otherwise) at a
price equal to the then fair market value of such interest.
The aggregate purchase price for the acquisition of BRI and OP would be
funded with a combination of debt and equity financing. The debt financing
would consist of a bridge loan to be provided by Goldman Sachs Mortgage
Company (an affiliate of Whitehall) pursuant to the attached commitment
letter. With respect to the equity financing, affiliates of Douglas Krupp,
Whitehall and Blackstone (together with the debt providers, the "FINANCING
SOURCES") have agreed in principle, subject to the execution of mutually
acceptable documentation with respect to Aptco and the conditions set forth
below, to provide Aptco with sufficient funds to finance the remaining
purchase price and related expenses for the acquisition.
Upon your acceptance of our proposal as set forth in this letter, we are
prepared to work towards immediately finalizing definitive acquisition
agreements with BRI and OP, which we would expect to be executed within two
weeks time. Such agreements would contain customary representations,
warranties, covenants and indemnities (including indemnification of Aptco
and its Financing Sources by BRI against claims arising in connection with
this transaction). In addition, consummation of the proposed transaction by
Aptco would be subject to the conditions set forth in the definitive
acquisition agreements, including the following:
(i) there being no injunction prohibiting or restricting the consummation
of any of the transactions described herein, no litigation commenced
or threatened by a governmental entity, nor any litigation that could
have a material adverse effect with respect to BRI or OP or that
could significantly delay the consummation of the BRI or the OP
Mergers;
(ii) execution of an agreement delivered, on or prior to the execution of
definitive acquisition agreements, by the holders of a majority in
interest of BRI's Series 1997-A Convertible Preferred Stock ("Series
A Preferred") consenting to the transactions, including the BRI
Merger and the conversion of their shares pursuant to the BRI Merger
into an amount of cash equal to 115% of the liquidation preference of
such shares;
(iii) receipt by BRI's Board of Directors of an opinion from a nationally
recognized investment banking firm that the consideration to be paid
to the holders of BRI stock, Series A Preferred and OP Units is fair,
from a financial point of view;
(iv) approval of the proposed transactions by the respective Boards of
Directors of BRI and the general partner of OP, and by the requisite
vote of the stockholders of BRI and the OP Unitholders;
(v) receipt of any regulatory and other third party consents to the
transactions, including the financing thereof;
(vi) receipt by BRI of a closing agreement with the Internal Revenue
Service, on terms and conditions satisfactory to Aptco, with respect
to certain tax matters, and Aptco's satisfaction with respect to
certain other tax matters;
(vii) confirmation that the number of shares of common stock of BRI will
not be more than 48,015,000, assuming the exercise of all stock
options and the conversion of all OP Units (but without taking into
account the conversion of shares of Series A Preferred into shares of
BRI common stock);
(viii)confirmation that investment banking fees, severance costs and
legal/accounting expenses of BRI relating to the transaction will not
exceed $12 million;
28
<PAGE>
(ix) inclusion in the BRI Merger agreement of satisfactory "no-shop,"
"break up fee" and expense reimbursement provisions customary for
transactions of this type; and
(x) other customary conditions to closing.
The closing of the BRI Merger and OP Merger would not be subject to a
due diligence or financing contingency (other than the receipt by Aptco of
financing proceeds on the terms and conditions of the commitments from the
Financing Sources).
Accompanying this letter is a draft merger agreement relating to the BRI
Merger, and a draft merger agreement relating to the OP Merger. Aptco,
together with its financial advisors and legal counsel are prepared to meet
with you and your advisors immediately to work on finalizing the enclosed
agreements. Of course, at this stage of the process, our proposal is merely
an expression of interest and is not intended to be legally binding, and
Aptco does not intend to be legally bound to any transaction with BRI or OP
until definitive agreements are fully executed.
We believe Aptco is uniquely positioned to proceed with a transaction in
the best interests of BRI stockholders and OP Unitholders on an expeditious
basis.
This letter is intended to be confidential and neither it nor our
involvement in pursuing a possible acquisition proposal should be publicly
disclosed by BRI or you unless required by law. In the event BRI determines
that public disclosure is so required, we request that any public
announcement of this proposal be reviewed by Aptco and its advisors prior to
its release.
Pursuant to the confidentiality agreement with you, we hereby advise you
that we intend to make the public disclosures required under Section 13(d)
of the Securities Exchange Act of 1934, as amended, as soon as practicable.
This offer is open until 5:00 p.m. on March 1, 1999, and will expire at
that time if not accepted. We look forward to working with you on this
proposed transaction.
Very truly yours,
APTCO, LLC
Consideration by the Special Committee of Competing Bids. On February 22,
1999, the Company received four bids to acquire the Company by merger, including
the Aptco Initial Bid. One bid, from an affiliate of a privately-held real
estate operating company ("Bidder A"), proposed an acquisition of all of the
Company's outstanding Common Stock for $12.00 per share in cash, and of all of
the OP Units not held by the Company for $12.00 per OP Unit in cash or, at the
unitholder's election, an equity interest in a surviving partnership (with terms
to be negotiated). A second bid, from a publicly-held REIT with multi-family
housing holdings ("Bidder B"), proposed an acquisition of all of the outstanding
Common Stock and OP Units for a combination of the bidder's common stock and
preferred stock (or common and preferred units, as applicable) nominally valued
at $12.00 per share and per unit. A third bid, from a publicly-held multi-family
housing REIT ("Bidder C"), proposed an acquisition of all of the outstanding
Common Stock and OP Units for the bidder's common stock valued at $10.78 per
share, and was expressly made subject to further due diligence. Each bid
provided for a cash payment of $28.75, plus 115% of Accrued Dividends, for each
share of the Company's outstanding Preferred Stock, in accordance with the
provisions of the Company's Certificate of Incorporation governing the Preferred
Stock in mergers involving the Company. Bidder B and Bidder C were the two
potential acquirors described to the Board of Directors at its November 12, 1998
meeting. Bidder A had been contacted by Lazard during its continuing
solicitation of interest in acquiring the Company.
29
<PAGE>
During the period from February 23 through February 25, 1999, the Special
Committee's legal and financial advisors discussed telephonically the financial
and legal issues presented by the various bids and conducted discussions with
the various bidders to clarify their proposals. With the Special Committee's
concurrence, Lazard informed Bidder C that removal of its due diligence
condition and substantial improvement in its bid price would be required in
order for its bid to receive continued consideration.
The Company's management furnished to the Special Committee on February 26,
1999 an updated three-year growth model, in response to an earlier request from
the Special Committee and the Board of Directors. FOR A DISCUSSION OF THE MODEL
FURNISHED BY MANAGEMENT, SEE "CERTAIN FINANCIAL PROJECTIONS OF THE COMPANY." On
February 26 and 27, 1999, the Special Committee's legal and financial advisors
reviewed with the Special Committee in detail the terms and conditions of the
four bids received, the particular concerns relating to, and prospects for
consummating a transaction with, each bidder and the Company's updated
three-year growth model. At the conclusion of these discussions, the Special
Committee determined to pursue discussions with Bidder A, Bidder B and Aptco,
with a view to improving their respective bid prices and terms. The Special
Committee instructed Lazard to conduct discussions with each such bidder to that
end.
On March 1, 1999, a representative of Lazard met with representatives of
Whitehall and Blackstone to discuss the Aptco Initial Bid. At the meeting, the
Lazard representative stated that the Special Committee had indicated that the
Company would be unlikely to accept an offer price of $11.05. He also indicated
that he believed the Company would find unattractive the level of cash
distributions payable to the holders of OP Units who elect to receive equity
interests ("Electing Holders") in Aptco, the lack of liquidity afforded them,
and the contingent nature of the Aptco Initial Bid given the "market out" in the
bridge loan commitment letter submitted with the Aptco Initial Bid (I.E., the
lender's obligations were conditioned on there not having occurred a significant
decline in the financial markets). Over the next few days, the Aptco Investor
Partners discussed ways in which the economic and governance arrangements among
them could be revised in order to make the offer price and terms in the Aptco
Initial Bid more attractive.
On March 4, 1999, each of the Aptco Investor Partners filed a Schedule 13D
with the Commission, pursuant to the Exchange Act, which described the Aptco
Initial Bid. On that same day, the Company publicly announced that it had
received the Aptco Initial Bid and found it to be insufficient. On March 5,
1999, Aptco delivered a revised proposal to the Company (the "Aptco Revised
Bid") in which the offer price was increased to $12.05 per share and OP Unit,
and which contemplated that (i) the preferred distributions payable to Electing
Holders electing a preferred equity interest in Aptco would be increased from 6%
to 7 1/2% per annum out of available cash and (ii) such holders would be given a
"put" (i.e., the right to cause Aptco to purchase their interests) for $12.05
per Aptco interest, exercisable at any time after the fifth anniversary of
closing. By its terms, the Aptco Revised Bid expired on March 8, 1999. All other
terms of the Aptco Initial Bid remained the same. On March 8, 1999, each of the
Aptco Investor Partners filed an amendment to its Schedule 13D with the
Commission which described the Aptco Revised Bid.
At a telephonic meeting of the Special Committee held on March 5, 1999,
Lazard informed the Special Committee that Bidder B had not agreed to improve
its bid, Bidder A had suggested a possible increase in consideration to the
holders of Common Stock and the holders of OP Units without specifying the
amount, and Aptco had submitted the Aptco Revised Bid. Following discussion, the
Special Committee directed Lazard to seek additional improvement in the bid
prices and terms and to inform Aptco that the Special Committee would not act by
Aptco's March 8 deadline. In addition, the Special Committee directed Baker &
Hostetler LLP to send to each bidder a draft merger agreement with instructions
imposing a March 10, 1999 deadline for comment.
30
<PAGE>
On March 10, 1999, the Special Committee's advisors received a marked merger
agreement from Bidder B. Baker & Hostetler LLP and Hale and Dorr LLP were
informed by Paul, Weiss that Aptco wished to receive comments on the merger
agreement drafts that Aptco had submitted with its February 22, 1999 bid, in
lieu of commenting on the Company's draft agreement. Representatives of those
firms then discussed the principal differences between the Aptco draft agreement
and the Company's draft agreement. Also on March 10, Lazard spoke with Bidder A
regarding various issues and Bidder A's intentions regarding submission of
merger agreement comments.
The Special Committee and its advisors met telephonically on March 10
following conclusion of the discussions described above. Lazard reported that
Bidder B had increased its bid from $12.00 to $12.30 per share of Common Stock
and OP Unit, with the increase consisting entirely of additional Bidder B
preferred stock, that Bidder A had increased its bid from $12.00 to $12.50 in
cash per share of Common Stock and per OP Unit, and that Aptco had confirmed its
bid of $12.05 in cash per share of Common Stock and per OP Unit and imposed a
March 11, 1999 deadline for acceptance of its bid. The Special Committee
discussed, among other issues, the likelihood of consummation of each bid, in
light of the bidders' specified closing conditions and the financing commitments
underlying Bidder A's and Aptco's bids, the valuation of the common stock,
preferred stock and common and preferred units offered by Bidder B and the
process to be followed in further discussions with the bidders. The Special
Committee directed Lazard to inform Aptco that the Special Committee was
actively considering all bids and would not accept Aptco's bid by Aptco's March
11, 1999 deadline.
The Special Committee's advisors received Bidder A's written merger
agreement comments on March 11. Further discussions among the Special
Committee's advisors and the bidders and their advisors occurred on March 11 and
12, 1999.
The Special Committee met by telephone on March 12, 1999. Lazard advised the
Special Committee that Aptco had indicated that it might, subject to agreement
among the Aptco Investor Partners, improve its bid from $12.05 per share of
Common Stock and per OP Unit to $12.25 per share of Common Stock and per OP
Unit, with its bid otherwise remaining unchanged, and that the other two bids
remained unchanged. The Special Committee's and the Board's financial advisors
expressed the view that all three bids were viable, and the Special Committee
and its and the Board's advisors again discussed the likelihood of consummation
of each bid and issues regarding the valuation of the stock and units offered by
Bidder B.
The Special Committee directed its and the Board's advisors to inform Bidder
A and Aptco of two conditions to continued consideration of their respective
proposals, in light of their financial structures and acquisition financing
plans: (i) first, that the existence of litigation relating to the acquisition
of the Company which does not result in an injunction against the acquisition
could not relieve the purchaser of its obligation to close the acquisition, and
(ii) second, that the purchaser must furnish a substantial letter of credit at
the time of signing a merger agreement as security for its obligation to
consummate the acquisition if all relevant conditions were met.
The Special Committee also directed Lazard to inform Bidder A that the
equity interests available to Electing Holders should include a non-preferred
interest that was pari passu with the interests to be held by Bidder A's
sponsoring equity participant, that the put feature of the preferred equity
interest should become exercisable on the fifth anniversary of issuance (rather
than on the 10th anniversary, as Bidder A had proposed), and that Bidder A
should identify a source of security for the distributions payable to Electing
Holders. The Special Committee directed Lazard to inform Bidder B that the
Special Committee had reservations about the high proportion of preferred stock
and units included in its proposed consideration and to seek a more favorable
mix of common stock and units and preferred stock and units. The Special
Committee also scheduled a meeting for March 14, 1999 and directed Baker &
Hostetler LLP and Hale and Dorr LLP to undertake negotiations with Bidder A to
resolve as many issues as possible in advance of that meeting.
31
<PAGE>
Baker & Hostetler LLP and Hale and Dorr LLP negotiated merger agreement
issues with Bidder A's counsel on March 13, 1999, discussing, among other
matters, the issues referred to above and the Company's intention to pay a
Common Stock dividend and OP Unit distribution, prorated to the closing date,
for the fiscal quarter in which the acquisition of the Company would be
consummated.
The Special Committee held a meeting on March 14, 1999, at Lazard's offices
in New York, New York. Representatives of Lazard, Lehman, Prudential Securities,
Baker & Hostetler LLP and Hale and Dorr LLP also attended the meeting. Lazard
reported that Bidder A had agreed to furnish a $25 million letter of credit and
that Bidder B and Aptco had indicated their willingness to hold their bids open
through the close of business on March 15, 1999.
During the March 14 meeting, the Special Committee and its advisors
discussed in detail the three outstanding bids, including considerations with
respect to each bid regarding the bid price, certainty of consummation, the
nature of and distribution coverage ratios for the securities available to
Electing Holders (with respect to Bidder A and Aptco), financing commitments
(with respect to Bidder A and Aptco), the payment of a prorated dividend and
distribution for the fiscal quarter in which the acquisition would be
consummated (with respect to all three bidders) and the valuation of the
consideration offered (with respect to Bidder B). The Special Committee also
considered the Company's alternatives to consummating a transaction and their
likely effect on the Stockholders and the holders of OP Units.
At the conclusion of the meeting, the Special Committee directed Lazard to
seek agreement from each of Bidder A and Aptco (i) to provide a $35 million
letter of credit to secure the bidder's closing obligations, and (ii) to close
an acquisition if all closing conditions were met notwithstanding the existence
of any litigation relating to the acquisition that had not resulted in an
injunction prohibiting the acquisition. The Special Committee also directed
Lazard to discuss with Bidder B an improvement in the ratio of common stock to
preferred stock and common units to preferred units in its acquisition
consideration and the payment to the Company of a break-up fee if Bidder B's
shareholders voted not to approve the proposed transaction.
The Special Committee and its advisors met telephonically on the evening of
March 15, 1999. Lazard reported that Bidder B had declined to make any change in
its bid. Lazard further reported that Aptco had agreed to the letter of credit
(although not to the requested amount) and closing condition points described in
the immediately preceding paragraph and that the Aptco Investor Partners were
discussing the possibility of improving Aptco's bid to $12.30 per share of
Common Stock and per OP Unit if Aptco were selected as the sole remaining
bidder. During the meeting, Lazard reported that it had just received a
telephone call in which Bidder A had confirmed its $12.50 per share of Common
Stock and per OP Unit offer price and agreed to the closing condition point
described above, but was unwilling to increase its letter of credit amount from
$25 million to $35 million.
The Special Committee and its advisors then reviewed the matters considered
at the Special Committee's March 14 meeting, including the comparison of the
terms of the equity interests available to the Electing Holders, in light of the
developments reported by Lazard. Baker & Hostetler LLP reviewed the Special
Committee's fiduciary obligations, and Lazard, Lehman and Prudential Securities
responded to the Special Committee's inquiries regarding the financial aspects
of the bids and Bidder A's and Aptco's financing commitments. At the conclusion
of these discussions, the Special Committee directed Lazard, Baker & Hostetler
LLP and Hale and Dorr LLP to proceed immediately with negotiations with Bidder A
and Bidder A's financial and legal advisors, with the objective of finalizing a
merger agreement and related agreements for execution within the next several
days. Lazard informed Bidder B and Aptco of this development.
Negotiations with Bidder A. On March 16 and March 17, 1999, Baker &
Hostetler LLP and Hale and Dorr LLP transmitted to Bidder A's counsel revised
merger agreement drafts and related materials,
32
<PAGE>
including proposed terms for the equity securities available to Electing Holders
and certain protective provisions for inclusion in the surviving entity's
governing instruments. Bidder A's counsel (including counsel to Bidder A's debt
financing sources), representatives of Baker & Hostetler LLP and Hale and Dorr
LLP, and Scott D. Spelfogel, Senior Vice President and General Counsel of the
Company, commenced merger agreement negotiations at Hale and Dorr LLP's Boston,
Massachusetts offices on March 18, 1999.
On the afternoon of March 18, Baker & Hostetler LLP informed the Special
Committee by telephone of various points raised by Bidder A that were contrary
to understandings reached in the parties' previous discussions. The Special
Committee directed its advisors to continue discussions with Bidder A. In light
of the concerns raised about Bidder A's positions on those points and Bidder A's
failure to have produced a draft of a partnership agreement for discussion,
however, the Special Committee also weighed again the strengths and weaknesses
of the Bidder B and Aptco proposals so that it could proceed promptly if
agreement could not be reached with Bidder A. Following discussion, the Special
Committee determined that if Aptco made a bid in cash with the same nominal
value as Bidder B's offer and with equity interests available to Electing
Holders as outlined in the Aptco Revised Bid, such a bid would be preferable to
Bidder B's offer of common and preferred stock and common and preferred units,
in light of the uncertainties attendant to the value of Bidder B's common and
preferred stock and common and preferred units and certain pricing terms that
could result in a lower actual value.
The negotiations with Bidder A continued on March 18 and March 19, 1999, but
reached an impasse late in the afternoon of March 19. Counsel for Bidder A
contacted a representative of Baker & Hostetler LLP on March 20, 1999 with a
proposed solution to the impasse, and the parties' counsel reconvened at Hale
and Dorr LLP's offices on March 21, 1999 and continued negotiations through
March 25, 1999. On the evening of March 25, the parties' counsel agreed that all
issues had been resolved and reflected in a final draft merger agreement, a
partnership merger agreement and a partnership agreement setting forth the terms
of the equity interests available to Electing Holders. Based on the parties'
understanding that Bidder A would furnish the requisite $25 million letter of
credit and executed debt financing commitments by the close of business the next
day, Mr. Spelfogel on March 25, 1999 sent to the Special Committee, to the
Company's Board of Directors and to the Board of Directors of Berkshire
Apartments, Inc. (the Operating Partnership's general partner), notices of
meetings to be held on March 28, 1999 for the purpose of considering and
approving a merger of Bidder A and an affiliated partnership into the Company
and the Operating Partnership, respectively.
Bidder A did not produce the requisite letter of credit and financing
commitments on March 26, 1999, and, consequently, the Board and Special
Committee meetings scheduled for March 28, 1999 were cancelled. Representatives
of Baker & Hostetler LLP and of Hale and Dorr LLP communicated with counsel for
Bidder A on March 27, 28 and 29, 1999, concerning the status of Bidder A's
efforts to produce those materials. Lazard communicated with Bidder A and with
Aptco on March 29, 1999. Lazard reported to Baker & Hostetler LLP and Hale and
Dorr LLP that it had no further information regarding the availability of Bidder
A's letter of credit and financing commitments. Lazard also indicated that Aptco
was prepared to deliver a revised merger agreement draft and related documents
and undertake negotiation of definitive agreements on March 30, 1999, and was
prepared to discuss increasing its acquisition price to $12.30 per share of
Common Stock and per OP Unit (with equity interests in Aptco, as outlined in the
Aptco Revised Bid, available to Electing Holders).
Negotiations with Aptco. On March 30, 1999, representatives of Baker &
Hostetler LLP, Hale and Dorr LLP and Paul, Weiss were joined by representatives
of Simpson Thacher & Bartlett (counsel to Blackstone) and Sullivan & Cromwell
(counsel to Whitehall) and Mr. Spelfogel at the offices of Paul, Weiss to
undertake negotiation of definitive agreements for the acquisition by merger of
the Company and the Operating Partnership. In their preliminary discussions, the
parties' representatives agreed that, in order to present the proposed
acquisition to the Special Committee and the Company's
33
<PAGE>
Board of Directors for approval, it would be necessary to complete a
satisfactory merger agreement, partnership merger agreement and a partnership
agreement for Aptco which would set forth the terms of the interests to be
received by the Electing Holders.
On the evening of March 30, 1999, Baker & Hostetler LLP and Lazard provided
the Special Committee and its financial advisor a telephonic update on the Aptco
negotiations and on discussions Lazard had held with Bidder B earlier that day.
Lazard reported that Bidder B had suggested a possible reconfiguration of its
proposal to provide for consideration of common stock and preferred stock and
common and preferred units with a nominal value of $12.05 per share of Common
Stock and per OP Unit, coupled with a contingent value right ("CVR") having a
maximum potential value of $.45 per share of Common Stock and per OP Unit.
Lazard indicated that there were several issues to be clarified regarding the
valuation of the CVR, and further reported that Bidder B had stated that it
would not be able to confirm or formalize the proposal until the following week.
Baker & Hostetler LLP reported to the Special Committee on the open issues
in the Aptco negotiations, including, among other things, Aptco's unwillingness
to permit the Company to pay a prorated dividend for the fiscal quarter in which
the acquisition would be consummated, issues relating to the circumstances under
which break-up fees and expense reimbursements would be payable and the amount
and timing of those payments, and issues relating to the economic and governance
protections available to the Electing Holders in Aptco's partnership agreement.
Following a discussion of the open issues, the Special Committee directed Baker
& Hostetler LLP and Hale and Dorr LLP to continue their efforts to negotiate
with Aptco a satisfactory merger agreement, partnership merger agreement and
Aptco partnership agreement, and directed its financial advisors to refine, to
the extent they could, the Bidder B proposal and the valuation of its CVR
component.
The Aptco negotiations continued at the offices of Paul, Weiss until late in
the day on April 1, 1999. The parties continued negotiations by conference calls
and the exchange of document revisions through April 6, 1999. During the same
period, negotiations were also continuing among the Aptco Investor Partners
regarding economic and governance issues relating to Aptco that remained
unresolved. On April 5, Lazard and Aptco discussed Aptco's desire to finance the
proposed acquisition with permanent financing, rather than with the bridge
financing followed by permanent financing that it had earlier contemplated.
Aptco indicated that the time required to secure the desired permanent financing
might necessitate fixing a closing date not earlier than October 15, 1999 and
possibly as late as December 31, 1999. Lazard indicated that in exchange for
granting Aptco a right to extend the time for closing beyond the time when the
closing conditions would otherwise be met and in light of the nature of the
proposed financing arrangements, the Company would need a substantial increase
in the letter of credit securing Aptco's closing obligations if such extension
right were exercised.
On April 6, Aptco indicated that anticipated cash available from the
Company's operations for the third quarter of 1999 was less than that assumed by
Aptco in formulating its bid and that this difference could cause Aptco to
reduce the cash price to be paid to holders of Common Stock and holders of OP
Units. The Special Committee's legal and financial advisors discussed that
development with the Chairman of the Special Committee and arrangements were
made to convene a telephonic meeting of the Special Committee and its advisors
on the evening of April 7, 1999.
During a meeting of the Special Committee held on April 7, 1999, Lazard
reported that Bidder A was continuing discussions with its financing sources but
had not yet secured a financing commitment and that Lazard was continuing its
efforts to elicit a definitive bid from Bidder B. The financial advisors to the
Board of Directors and to the Special Committee were all of the view that the
current valuation of Bidder B's revised proposal of $12.05 in common and
preferred stock and common and preferred units, plus the CVR, was in the range
of $11.77 to $11.91 per share of Common Stock and per OP Unit, because of a
decline in the value of the preferred stock based on the trading values of
Bidder B's outstanding preferred stock issues and because an evaluation of the
CVR's features led to a CVR valuation in the range of $.07 to $.11 per share and
per unit.
34
<PAGE>
Lazard also described Aptco's proposal to address the cash availability
issue referred to above by requiring that the Company not pay a prorated
dividend for the quarter in which the acquisition would close. Lazard expressed
the view that the right to pay a prorated dividend and distribution is not
typical of similar transactions. Prudential Securities concurred in that view.
Baker & Hostetler LLP then reviewed the issues that remained open in the
Aptco merger negotiations. These issues included Aptco's financing, the timing
of closing, the ability of the Company to pay dividends prior to closing and the
letter of credit securing Aptco's closing obligations. Other issues related to
the Aptco partnership agreement with respect to the interests of the Electing
Holders, including limitations designed to provide financial coverage for
partnership distributions, transferability of the partnership interests, the
partners' put rights, the ability to guarantee debt, treatment of the Electing
Holders in any sale of the partnership and issues regarding the nature of the
general partners' duties to the limited partners in the partnership.
At the conclusion of the April 7, 1999 meeting, the Special Committee
determined, based on the recommendations of the financial advisors, that the
Company would agree not to have the option to pay a prorated dividend and
Operating Partnership distribution if the acquisition closed between August 1,
1999 and October 31, 1999, with dividend and distribution accrual resuming on
November 1, 1999 through any closing on or after that date. The Special
Committee instructed its legal and financial advisors to continue negotiations
with Aptco and to advise Bidder A that the Company would entertain a
corresponding dividend and distribution arrangement with Bidder A if Bidder A
was able to complete the financing arrangements and deliver the letter of credit
necessary to enable Bidder A to execute acquisition documents with the Company.
The Special Committee's advisors and Aptco's advisors continued their
negotiations by telephone on April 8 and April 9, 1999. The participants
discussed, in addition to the merger and partnership agreement issues described
above, issues related to mortgage debt assumptions and lender consents.
On April 11, 1999, the parties' counsel finalized drafts of the merger
agreement, the partnership merger agreement and the partnership agreement, and
Mr. Spelfogel sent to the Special Committee, to the Company's Board of Directors
and to the Board of Directors of Berkshire Apartments, Inc., notices of meetings
to be held on April 13, 1999 for the purpose of considering and approving a
merger of an Aptco affiliate and an affiliated partnership with the Company and
the Operating Partnership, respectively.
The parties' counsel continued to discuss the assumption of the mortgage
debt and related lender consents and the prorated dividends and distributions
issues by telephone on April 11 and April 12, 1999. The parties resolved the
assumption and consent issues by reducing the merger consideration from $12.30
per share of Common Stock and per OP Unit (which had tentatively been proposed
by Aptco) to $12.25 per share of Common Stock and per OP Unit in exchange for
Aptco's acceptance of all costs and risks attendant to that assumption and
obtaining the requisite lenders' consents. The parties resolved the prorated
dividend issue in the manner described under "Questions and Answers About the
Merger--What will happen to my Common Stock dividends?"
Negotiations among the Aptco Investor Partners continued through the morning
of April 13, 1999 regarding the economic and governance issues relating to Aptco
that remained unresolved. By late morning on that day, all such issues had been
resolved.
Execution of Merger Agreement. At the meeting of the Special Committee held
on April 13, 1999, each of Lazard, Lehman and Prudential Securities made a
presentation to the Special Committee of its analysis regarding the current
Aptco proposal. During those presentations, representatives of each of Lazard,
Lehman and Prudential Securities responded to questions posed by members of the
Special Committee about their analyses. In addition, Prudential Securities
delivered to the Special Committee its opinion that, based on the considerations
and subject to the assumptions and limitations set forth in
35
<PAGE>
its opinion, the consideration to be paid to the holders of the Company's Common
Stock, and the cash consideration to be paid to the holders of OP Units, was
fair to the holders of the Company's Common Stock and to the holders of OP Units
from a financial point of view. See "--Opinions of the Financial
Advisors--Opinion of Prudential Securities to the Special Committee of the
Company's Board of Directors." Each of Lazard and Lehman also confirmed that, at
the joint meeting of the Company's Board of Directors and the board of directors
of Berkshire Apartments, Inc. scheduled for later on the same day, it would
render its opinion to that effect.
Baker & Hostetler LLP then reviewed with the Special Committee the material
terms of the proposed Merger Agreement, Partnership Merger Agreement, Parent
Partnership Agreement and Mr. Krupp's employment agreement with the Parent.
Baker & Hostetler LLP also discussed with the Special Committee the salient
developments that had arisen during the negotiations with Aptco and the other
bidders.
As part of its analysis, the Special Committee reviewed alternatives to the
Aptco proposal, including a further extension of time for Bidder A to produce
financing commitments and a letter of credit, Bidder B's current proposal,
adoption of the Liquidation Plan and the Company's continuation of its existing
operations. The Special Committee determined, based on the Chairman's and its
advisors' further conversations with representatives of Bidder A immediately
before and during the Special Committee's meeting, that Bidder A would not be
able to present the requisite materials and consummate a transaction with the
Company. The Special Committee further determined, based on a discussion of its
financial advisors' valuation of the consideration to be paid by Bidder B, that
Bidder B's proposal was financially inferior to the Aptco proposal. The Special
Committee also unanimously reconfirmed its view, following discussion of
analyses by Lazard, Lehman and Prudential Securities, that adoption of the
Liquidation Plan was not in the best interests of the Company and its
Stockholders and that continuation of the Company's existing operations was not
likely to produce greater value for the Company's Stockholders and the holders
of OP Units than consummation of the Aptco merger proposal.
After reviewing the alternatives and taking into account the extensive
efforts made to negotiate and execute a favorable merger agreement and related
agreements and considering the factors set forth under "--Recommendations of the
Special Committee and the Board of Directors--The Special Committee", the
Special Committee determined that the Aptco merger proposal represented the best
available alternative for maximizing value for the Stockholders and for the
holders of OP Units. In light of such factors and that determination, the
Special Committee concluded that the Aptco proposal was fair to and in the best
interests of the Stockholders and the holders of OP Units, and resolved to
recommend that the Company's Board of Directors and the board of directors of
Berkshire Apartments, Inc. approve the merger transactions.
At a joint meeting of the Company's Board of Directors and the board of
directors of Berkshire Apartments, Inc. held later on April 13, 1999 (with Mr.
Kazilionis absent), each of Lazard and Lehman made a presentation of its
analysis and delivered its opinion that, based on the considerations and subject
to the assumptions and limitations set forth in its opinion, the consideration
to be paid to the holders of the Company's Common Stock and the cash
consideration to be paid to the holders of OP Units, taken as a whole, was fair
to the holders of the Company's Common Stock and the holders of OP Units from a
financial point of view. See "--Opinions of the Financial Advisors--Opinion of
Lazard to the Company's Board of Directors" and "--Opinion of Lehman to the
Company's Board of Directors."
Hale and Dorr LLP reviewed with the Company's Board of Directors and with
the board of directors of Berkshire Apartments, Inc. the material terms of the
proposed Merger Agreement, the Partnership Merger Agreement, the Parent
Partnership Agreement (previously referred to as the "Aptco partnership
agreement"), and Mr. Krupp's employment agreement. Hale and Dorr LLP also
36
<PAGE>
reviewed the Special Committee's recommendation and the Board's fiduciary duties
in light of Mr. Krupp's role with Aptco. Mr. Krupp then departed the meeting
while the other Directors discussed the fairness of the Merger Proposal. Mr.
Marshall disclosed to the other Directors that he was undecided about
participating in the Management Group and, hence, was subject to a potential
conflict of interest. Upon conclusion of the discussion of the fairness of the
Merger Proposal, Mr. Krupp rejoined the meeting.
After considering the recommendation of the Special Committee, the factors
considered by the Special Committee and the opinions of each of Lazard and
Lehman, all of the members of the Board and the board of directors of Berkshire
Apartments, Inc. (other than Mr. Kazilionis, who was absent) voted to approve
the Aptco proposal, the Merger Agreement, the Partnership Merger Agreement and
the Parent Partnership Agreement and the transactions contemplated thereby,
determined that the merger transactions, taken as a whole, are fair to, and in
the best interests of, the holders of the Company's Common Stock and Preferred
Stock and the holders of OP Units, and resolved to recommend that the holders of
the Company's Common Stock and Preferred Stock and the holders of OP Units
approve the Merger.
On April 12, 1999, the Parent was formed by the partners of Aptco and their
affiliates, and on April 13, 1999, the Merger Agreement, the Partnership Merger
Agreement and the Parent Partnership Agreement were executed. On April 14, 1999,
the Company and the partners of the Parent issued a joint press release
announcing the transaction.
PURPOSE AND STRUCTURE OF THE MERGER
Purpose. The purpose of effecting the Merger at this time is to enable the
Parent and the Acquiror to acquire the entire equity interest in the Company and
to provide the Nonaffiliated Stockholders with an opportunity to liquidate their
investment in the Company for cash at a significant premium to the market prices
for the Common Stock prior to the announcement of the Parent's acquisition offer
and at a 15% premium (in accordance with the Company's Certificate of
Incorporation) to the Stated Value per share of Preferred Stock (together with
115% of the Accrued Dividends). The Parent determined that it was an appropriate
time to make its acquisition offer to the Company based on its knowledge of the
real estate industry, its belief that the trading price of the Company's Common
Stock undervalued the Company and its assets and its desire to take advantage of
the benefits described below under "--Benefits and Detriments of the Merger to
the Parent."
Structure. The transaction was structured as a merger because the Parent
and the Company believed a merger to be the most efficient means to transfer the
entire equity interest in the Company to the Parent and to provide the
Nonaffiliated Stockholders with cash for their Common Stock and Preferred Stock.
Prior to determining to proceed with a merger proposal, the Parent considered a
cash tender offer, but rejected it because of a provision in the Company's
Certificate of Incorporation that would restrict the ability of the Parent to
vote more than 9.8% of the Common Stock tendered to it. The Parent and the
Company each considered structuring the transaction as a sale of the Company's
interest in the Operating Partnership, but this alternative was rejected because
it presented no material benefits relative to the Merger structure.
Benefits and Detriments of the Merger to the Parent. Following the Merger,
the Parent will become the beneficiary of any future earnings growth and
increase in value of the Surviving Company. The Parent believes the value of the
Surviving Company will be enhanced following the Merger (which will benefit the
Parent) by the following:
- by becoming a private company (which will occur as a result of the
Merger), the operating flexibility of the Surviving Company will be
increased, without the constraint of the public market's emphasis on
quarterly earnings;
37
<PAGE>
- by deciding to no longer operate the Company as a REIT (see "Plans for the
Company After the Merger"), the need to comply with the distribution
requirements imposed by tax laws applicable to REITs will be eliminated,
thereby increasing the Surviving Company's ability to retain capital;
- by eliminating the costs associated with public ownership of the Company,
the overall operational and administrative costs of the Surviving Company
will be reduced; and
- if the Parent elects to use the Alternative Merger, the Parent will enjoy
certain tax benefits associated with increasing the potential depreciation
of the assets acquired by the Parent in the Merger. The Parent has
indicated that its current intention is to elect the Alternative Merger.
The detriments of the completion of the Merger to the Parent are:
- the significant cash outlay by the Parent required to complete the Merger,
- the Surviving Company's inability to use publicly traded securities as
acquisition capital, and
- the inability of the Surviving Company to grant options to its employees
exercisable for publicly traded securities.
RECOMMENDATION OF THE SPECIAL COMMITTEE AND THE BOARD OF DIRECTORS; FAIRNESS OF
THE MERGER
At a meeting held on April 13, 1999, the Special Committee unanimously
determined (i) that the terms of the Merger Agreement and Merger are fair to,
and in the best interests of, the Company and the Nonaffiliated Stockholders,
and (ii) to recommend that the Company's Board of Directors approve the Merger
and adopt the Merger Agreement. At a joint meeting of the Company's Board of
Directors and the board of directors of Berkshire Apartments, Inc. held on April
13, 1999, all of the Directors except Mr. Kazilionis, who was absent, based on
the recommendation of the Special Committee:
- determined that the terms of the Merger Agreement and Merger are fair to,
and in the best interests of, the Company and the Nonaffiliated
Stockholders;
- authorized the officers of the Company to call a special meeting of the
Company's Stockholders for purposes of approving the Merger and adopting
the Merger Agreement;
- determined to recommend to the Stockholders that they vote to adopt the
Merger Agreement and approve the Merger; and
- authorized the officers of the Company to execute the Merger Agreement and
related documents.
See "--Background of the Merger."
The Special Committee. In determining to recommend to the Board of
Directors that it approve the Merger and adopt the Merger Agreement, and in
determining that the Merger was fair to, and in the best interests of, the
Nonaffiliated Stockholders, the Special Committee considered both potential
positive and negative factors. Among the positive factors considered were the
following factors, each of which, in the Special Committee's view, supported the
Special Committee's determination to recommend the Merger:
- the determination of the Special Committee after consultation with the
Company's and Special Committee's financial advisors that $12.25 per share
of Common Stock in cash presented greater value to the Nonaffiliated
Stockholders who hold Common Stock than was likely to be realized upon
adoption of the Liquidation Plan, the continuation of the Company's
existing operations or the other alternatives available to the Company;
38
<PAGE>
- the Special Committee's belief that the Company had thoroughly explored
the market interest in an acquisition of the Company, which was based on
the efforts on behalf of the Company by Lazard to solicit indications of
interest to purchase all or part of the Company's business, including
contacting 40 potential acquirors;
- the belief of the Special Committee, based on (i) its negotiations with
other parties that made offers to acquire the Company that, among other
things, led to an increase in the Parent's offer from $11.05 per share of
Common Stock to $12.25 per share of Common Stock, and (ii) the extensive
efforts made by the Special Committee to negotiate and execute a merger
agreement favorable to the Company and the Nonaffiliated Stockholders,
that the cash price of $12.25 per share of Common Stock and the other
terms set forth in the Merger Agreement were the best price and terms that
could be obtained by the Company in light of the available alternatives;
- historical data relating to market prices of the Common Stock, including
data that indicated that the $12.25 per share of Common Stock to be
received by the Nonaffiliated Stockholders who hold Common Stock in the
Merger represented a premium of approximately 28.4% to the average closing
price of the Common Stock on the NYSE of $9.54 for the 30-day period prior
to March 4, 1999, the day the Parent's initial cash offer of $11.05 per
share was publicly disclosed, which was subsequently raised to $12.25 per
share;
- the opinion of Prudential Securities, financial advisor to the Special
Committee, and the statements from Lazard and Lehman, financial advisors
to the Company, that they were prepared to opine to the Board of Directors
at its meeting following the conclusion of the Special Committee meeting,
as to the fairness from a financial point of view to:
-- the Stockholders who hold Common Stock of $12.25 per share of Common
Stock, and
-- the holders of OP Units of $12.25 per OP Unit (if such holders elect to
receive cash) (see "--Partnership Merger"),
and the analysis presented to the Special Committee by Prudential
Securities (see "--Opinions of the Financial Advisors");
- that the Parent, upon signing the Merger Agreement, would post the Letter
of Credit in the amount of $29,500,000 to secure the performance of its
obligations under the Merger Agreement, which amount would be increased to
$54,500,000 should the Parent elect to exercise the Extension Option;
- the substantial likelihood of consummation of the Merger by the Parent and
the Acquiror because of the posting of the Letter of Credit and the
limited number and nature of the conditions to the Parent's and the
Acquiror's obligations to close, including:
-- that the existence of litigation relating to the Merger, other than any
litigation resulting in the granting of injunctive relief that prevents
consummation of the Merger, will not cause a failure of the conditions;
and
-- that the failure to obtain a third-party consent with respect to any
matter that was disclosed to the Parent and the Acquiror in writing on
or prior to April 13, 1999 will not cause a failure of the conditions;
- that Stockholders who do not vote in favor of the Merger will have
statutory appraisal rights (see "The Merger--Appraisal Rights");
- that (i) the Company can pay a fourth quarter dividend to Stockholders of
record on November 1, 1999 if the conditions to closing have been
satisfied on or before October 29, 1999 but the Parent elects to extend
the closing of the Merger beyond such date; and (ii) the
39
<PAGE>
Company can pay a pro rata dividend for the period beginning November 1,
1999 through the Effective Time if for any reason the Effective Time
occurs after November 1, 1999; and
- the terms and conditions of the Merger Agreement other than the price,
including the scope of the parties' representations, warranties, covenants
and agreements, and the right of the Board of Directors to withdraw or
modify its recommendation if the Company receives an unsolicited superior
acquisition proposal that it desires to accept (see "The
Merger--Additional Agreements").
The material negative factors, which the Special Committee viewed as
insufficient to outweigh the positive factors, were:
- that, following the Merger, the Nonaffiliated Stockholders will cease to
participate in the future earnings growth, if any, of the Company or
benefit from the increase, if any, in the value of the Company;
- the potential conflicts of interests of officers and Directors of the
Company in connection with the Merger;
- that each Nonaffiliated Stockholder will recognize a taxable gain upon
completion of the Merger if and to the extent the amount of cash such
Nonaffiliated Stockholder receives in the Merger exceeds its tax basis in
its Common Stock or Preferred Stock, as the case may be; and
- that if the Parent and Acquiror fail to consummate the Merger for any
reason, including the failure of the Parent's equity and debt financing
commitments (which total in excess of $1 billion) to close, the Company's
sole remedy will be to draw on the Letter of Credit.
In light of the number and variety of factors the Special Committee
considered in connection with its evaluation of the Merger, the Special
Committee did not find it practicable to assign relative weights to the
foregoing factors; accordingly, the Special Committee did not do so.
The Special Committee consulted with each of Prudential Securities, Lazard
and Lehman during the course of the bidding and negotiation processes. Although
the financial advisors provided advice and analyses to the Special Committee and
the Special Committee adopted the conclusions reached by the financial advisors
as to the fairness of the consideration to be received in the Merger by the
Nonaffiliated Stockholders, the decision to recommend to the Board of Directors
entering into the Merger Agreement and accepting the consideration to be
received in the Merger was solely that of the Special Committee.
The Special Committee believes that the Merger is procedurally fair because:
- the Special Committee consisted of disinterested Directors appointed to
represent the interests of, and to negotiate on an arm's-length basis with
potential acquirors on behalf of, the holders of Common Stock;
- the Special Committee retained and was advised by independent outside
legal counsel;
- the Special Committee retained and was advised by an independent financial
advisor; and
- the Company thoroughly explored the interest of other potential acquirors
in entering into a transaction with the Company.
In addition, the Special Committee believes that the Merger is procedurally
fair because the price of $12.25 per share and the other terms and conditions of
the Merger Agreement resulted from active arm's-length bargaining between the
Special Committee and the Parent.
The Board of Directors. The Board of Directors, at its April 13, 1999
meeting, considered the unanimous recommendation of the Special Committee, the
opinions of the financial advisors as to the
40
<PAGE>
fairness of the Merger Consideration from a financial point of view, as well as
the other factors (enumerated above) considered by the Special Committee, and
determined that the Merger is fair to, and in the best interests of, the
Stockholders, approved and adopted the Merger Proposal, and recommended that the
Stockholders vote to approve and adopt the Merger Proposal. The Directors voting
to approve and adopt the Merger Proposal constituted a majority of the Directors
who are not employees of the Company. The Board of Directors considered the
recommendation of the Special Committee but made its own evaluation, based on
the factors enumerated above, of the substantive and procedural fairness of the
Merger Proposal.
The foregoing discussion of the information and factors considered by the
Special Committee and the Board of Directors is not intended to be exhaustive
but includes all material factors considered by them in making their respective
decisions. In view of the variety of factors considered in connection with their
evaluation of the Merger, the Special Committee and the Board of Directors did
not find it practicable to, and did not, quantify or otherwise attempt to assign
relative weights to the specific factors considered in reaching their respective
determinations. In addition, individual members of the Special Committee or of
the Board of Directors may have given different weight to different factors. In
the course of their deliberations, neither the Special Committee nor the Board
of Directors established a range of values for the Company; however, based on
the factors outlined above and on the presentations and opinions of Lazard,
Lehman and Prudential Securities, the Special Committee and the Board of
Directors adopted the conclusions of the financial advisors as to the fairness
of the consideration to be received in the Merger by the Nonaffiliated
Stockholders and determined that the Merger Agreement and the Merger are fair
to, and in the best interests of, the Company and the Nonaffiliated
Stockholders.
The Board of Directors also considered the interests described under
"Special Factors--Interests of Certain Persons in Matters to be Acted Upon" that
certain Directors and members of management have in the Merger. The Board
concluded that the fact that existing stock options previously granted to
Directors and management will accelerate and be converted into cash as a result
of the Merger, that certain members of management will receive payments as a
result of the Merger pursuant to existing employment agreements and that certain
loans made by the Company to certain members of management will be forgiven as a
result of the Merger, all as described under "Special Factors-- Interests of
Certain Persons in Matters to be Acted Upon," was reasonable in the context of
the entire transaction given that the related stock option plan, the employment
agreements and the loan terms had been approved by the Board of Directors prior
to the commencement of discussions leading to the proposed Merger.
The Board of Directors considered the payments to be made under the
Directors' Retainer Fee Plan described under "Special Factors--Interests of
Certain Persons in Matters to be Acted Upon," and concluded that the cash
payments to two Directors (David deWilde and E. Robert Roskind) to be made as a
result of the Merger were reasonable in the context of the entire transaction in
light of the fact that such payments do not represent a per share payment
greater than that being offered to the other Nonaffiliated Stockholders and that
the plan had been approved by the Board of Directors prior to the commencement
of discussions leading to the proposed Merger.
The Board of Directors considered the significant equity to be held in the
Parent by affiliates of Mr. Krupp, the employment agreement it is anticipated
Mr. Krupp will enter into with the Parent and the incentive management
participation plan in which members of senior management of the Parent are
expected to participate. The Board concluded that these arrangements were
reasonable in the context of the entire transaction in light of the fact that
they were the product of arm's length negotiations between the individuals
involved and Whitehall and Blackstone.
FOR A DISCUSSION OF THE ESTIMATED LIQUIDATION VALUE OF THE COMPANY AS SET
FORTH IN THE DRAFT LIQUIDATION PLAN, WHICH WAS CONSIDERED BY THE SPECIAL
COMMITTEE AND THE BOARD OF DIRECTORS, SEE "ESTIMATED PROCEEDS PER SHARE IN
LIQUIDATION." FOR A DISCUSSION OF THE PROJECTIONS OF THE COMPANY'S PERFORMANCE
PREPARED BY MANAGEMENT AND FURNISHED TO THE SPECIAL COMMITTEE AND THE BOARD OF
DIRECTORS, SEE "CERTAIN FINANCIAL PROJECTIONS OF THE COMPANY."
41
<PAGE>
BENEFITS AND DETRIMENTS TO NONAFFILIATED STOCKHOLDERS
The Company and the Parent believe that the primary benefit of the Merger to
the Nonaffiliated Stockholders is the realization of the value of their
investment in the Company in cash at a price which represents a substantial
premium to the market price for the Common Stock prior to the public disclosure
of the Parent's initial cash offer of $11.05 per share.
The primary detriment of the Merger to the Nonaffiliated Stockholders is
that they will cease to have any ownership interest in the Company and will
cease to participate in future earnings growth, if any, of the Company or to
benefit from the increase, if any, in the value of the Company. In addition,
each Nonaffiliated Stockholder will recognize a taxable gain upon the completion
of the Merger if and to the extent the amount of cash such Nonaffiliated
Stockholder receives in the Merger exceeds its tax basis in its Common Stock or
Preferred Stock, as the case may be.
OPINIONS OF THE FINANCIAL ADVISORS
Opinion of Prudential Securities to the Special Committee of the Company's Board
of Directors
On April 13, 1999, Prudential Securities delivered its oral opinion to the
Special Committee to the effect that, as of such date, $12.25 in cash was fair,
from a financial point of view, to holders of the Company's Common Stock and
holders of OP Units, respectively. The Prudential Securities opinion did not
address the fairness of the consideration to be offered to holders of OP Units
other than the $12.25 cash consideration to be offered to holders of OP Units.
Prudential Securities made a presentation of the financial analysis underlying
its oral opinion at a meeting of the Special Committee on April 13, 1999. This
analysis, as presented to the Special Committee, is summarized below. All of the
members of the Special Committee were present at the meeting on April 13, 1999
and had an opportunity to ask questions regarding Prudential Securities
presentation. Prudential Securities subsequently confirmed its opinion in
writing on April 13, 1999. References herein to the Prudential Securities
Opinion (the "Prudential Securities Opinion") are to the written opinion dated
April 13, 1999.
In requesting the Prudential Securities Opinion, the Special Committee did
not give any special instructions to Prudential Securities or impose any
limitation upon the scope of the investigation that Prudential Securities deemed
necessary to enable it to deliver the Prudential Securities Opinion. A copy of
the Prudential Securities Opinion, which sets forth the assumptions made,
matters considered and limits on the review undertaken, is attached to this
Proxy Statement as Appendix D and is incorporated herein by reference. The
summary of the Prudential Securities Opinion set forth below is qualified in its
entirety by reference to the full text of the Prudential Securities Opinion. The
Stockholders are urged to read the Prudential Securities Opinion in its
entirety.
THE PRUDENTIAL SECURITIES OPINION IS DIRECTED ONLY TO THE FAIRNESS OF THE
$12.25 CASH CONSIDERATION TO BE OFFERED TO HOLDERS OF COMMON STOCK AND HOLDERS
OF OP UNITS FROM A FINANCIAL POINT OF VIEW AND DOES NOT CONSTITUTE A
RECOMMENDATION TO ANY STOCKHOLDER AS TO HOW SUCH STOCKHOLDER SHOULD VOTE AT THE
SPECIAL MEETING OR AS TO WHETHER THE HOLDERS OF OP UNITS SHOULD CONSENT TO THE
PARTNERSHIP MERGER OR AS TO ANY OTHER ACTION SUCH STOCKHOLDER OR HOLDER OF OP
UNITS SHOULD TAKE REGARDING THE TRANSACTION.
In conducting its analysis and arriving at the Prudential Securities Opinion
dated April 13, 1999, Prudential Securities reviewed such information and
considered such financial data and other factors as Prudential Securities deemed
relevant under the circumstances, including, among others, the following:
- a draft dated April 11, 1999 of the Merger Agreement;
- a draft dated April 11, 1999 of the Partnership Merger Agreement;
42
<PAGE>
- certain publicly available historical financial and operating data
concerning the Company including, but not limited to, the Annual Reports
on Form 10-K of the Company for the fiscal years ended December 31, 1996,
1997 and 1998;
- an appraisal dated October 15, 1998 of the Company's properties prepared
by Cushman & Wakefield, Inc.;
- publicly available financial, operating and stock market data concerning
certain companies engaged in businesses Prudential Securities deemed
comparable to the Company, or otherwise relevant to Prudential Securities'
inquiry;
- the financial terms of certain recent comparable transactions Prudential
Securities deemed relevant to the inquiry;
- historical stock prices and trading volumes of the Common Stock; and
- such other financial studies, analyses and investigations as Prudential
Securities deemed appropriate.
Prudential Securities assumed, with the Company's consent, that the draft of
the Merger Agreement and the Partnership Merger Agreement which Prudential
Securities reviewed (as referred to above) will conform in all material respects
to those documents in final form. In connection with its review and analysis and
in arriving at the Prudential Securities Opinion, Prudential Securities relied
upon the accuracy and completeness of the financial and other information
provided to Prudential Securities by the Company's management and has not
undertaken any independent verification of such information or any independent
valuation or appraisal of any of the assets or liabilities of the Company. With
respect to certain financial forecasts provided to Prudential Securities by the
management of the Company, Prudential Securities assumed such information (and
the assumptions and bases therefor) represented the best estimates and judgments
of the Company's management then available as to the future financial
performance of the Company. See "Certain Financial Projections of the Company."
Further, the Prudential Securities Opinion is necessarily based on economic,
financial and market conditions as they exist, and can only be evaluated as of
April 13, 1999.
The Prudential Securities Opinion does not address nor should it be
construed to address the relative merits of the Merger and alternative business
strategies which may be available to the Company.
The Prudential Securities Opinion and the presentation to the Special
Committee was one of the many factors taken into consideration by the Special
Committee in making its determination to recommend adoption of the Merger
Agreement. Consequently, the analyses of Prudential Securities described below
should not be viewed as determinative of the opinion of the Special Committee
with respect to the $12.25 cash consideration for holders of Common Stock and
the $12.25 cash consideration to be offered to holders of OP Units in connection
with the Merger. The $12.25 Common Stock consideration and the $12.25 cash
consideration to be offered to holders of OP Units were determined through
negotiations between the Special Committee and the Parent and were approved by
the Special Committee. The decision to enter into the Merger Agreement and to
accept the $12.25 Common Stock consideration and the $12.25 cash consideration
to be offered to holders of OP Units and to be received in the Merger was solely
that of the Special Committee and the Board of Directors.
In arriving at the Prudential Securities Opinion, Prudential Securities
performed a variety of financial analyses, including those summarized herein.
The preparation of a fairness opinion is a complex process that involves various
determinations as to the most appropriate and relevant methods of financial
analyses and the application of these methods to the particular circumstance
and, therefore, such an opinion is not necessarily susceptible to partial
analysis or summary description. Prudential
43
<PAGE>
Securities believes its analysis must be considered as a whole and selecting
portions thereof or portions of the factors considered by it, without
considering all analyses and factors, could create an incomplete view of the
evaluation process underlying the Prudential Securities Opinion.
Prudential Securities made numerous assumptions with respect to industry
performance, general business, economic, market and financial conditions and
other matters, many of which are beyond the control of the Company. Any
estimates contained in Prudential Securities analyses are not necessarily
indicative of actual values or future results, which may be significantly more
or less favorable than suggested by such analyses. Additionally, estimates of
the values of businesses and securities do not purport to be appraisals or
necessarily reflect the prices at which businesses or securities may be sold.
Accordingly, such analyses and estimates are inherently subject to substantial
uncertainty. Subject to the foregoing, the following is a summary of the
material financial analyses presented by Prudential Securities to the Special
Committee on April 13, 1999.
COMPARABLE COMPANIES ANALYSIS. A comparable companies analysis was employed
by Prudential Securities to establish implied ranges for the $12.25 Common Stock
consideration and the $12.25 cash consideration to be offered to the holders of
OP Units. Prudential Securities analyzed publicly-available historical and
projected financial results, including multiples of current stock price to
actual 1998 funds from operations per share ("1998 Actual FFO"), projected 1999
funds from operations per share ("1999 Projected FFO"), and projected 2000 funds
from operations per share ("2000 Projected FFO") of certain companies considered
by Prudential Securities to be reasonably similar to the Company. The companies
analyzed included: AMLI Residential Properties Trust, Camden Property Trust,
Charles E. Smith Residential Realty, Inc., Gables Residential Trust, Mid-America
Apartment Communities, Inc., Post Properties, Inc., Summit Properties, Inc., and
United Dominion Realty Trust, Inc. (the "Prudential Securities Comparable
Group"). All of the trading multiples of the Prudential Securities Comparable
Group were based on closing stock prices on April 12, 1999 (the "April 12th
Closing Price") and all FFO per share estimates were published by First Call
Corporation ("First Call"). The estimates published by First Call were not
prepared in connection with the Merger or at the request of Prudential
Securities.
The Prudential Securities Comparable Group was found to have an April 12th
Closing Price estimated to be within a range of 7.6x to 10.8x 1998 Actual FFO,
7.2x to 9.9x 1999 Projected FFO, and 6.9x to 9.0x 2000 Projected FFO. Applying
such multiples to the Company's actual 1998 FFO per share ($1.15), estimated
1999 FFO per share ($1.25), as published by First Call, and estimated 2000 FFO
per share ($1.31), as published by First Call, resulted in implied ranges for
the $12.25 Common Stock Consideration and the $12.25 cash consideration to be
offered to holders of OP Units of $8.80 to $12.44, $9.02 to $12.35 and $9.01 to
$11.84, respectively.
COMPARABLE TRANSACTIONS ANALYSIS. Prudential Securities also analyzed the
consideration paid in several recent merger and acquisition transactions deemed
by Prudential Securities to be reasonably similar to the Merger and considered
the multiple of the equity purchase price (defined as the purchase price of the
acquired entity's equity) to the acquired entity's latest twelve months funds
from operations ("LTM FFO") and to the acquired entity's forward twelve months
funds from operations ("F-FFO"), based upon publicly available information for
such transactions.
The transactions considered were the combinations of:
- the pending merger of Duke Realty Investments, Inc. and Weeks Corporation,
- the pending merger of TIC Acquisition LLC and Irvine Apartment
Communities, Inc.,
- the pending merger of Reckson Associates Realty Corp. and Tower Realty
Trust, Inc.,
- ProLogis Trust and Meridian Industrial Trust, Inc.,
- Public Storage, Inc. and Storage Trust Realty,
44
<PAGE>
- Equity Residential Properties Trust and Merry Land & Investment Company,
Inc.,
- New Plan Realty Trust and Excel Realty Trust, Inc., and
- Bay Apartment Communities, Inc. and Avalon Properties, Inc. (the
"Prudential Securities Transaction Comparables").
The Prudential Securities Transaction Comparables were found to imply for
the acquired entity an equity purchase price within a range of 9.8x to 14.8x LTM
FFO and 9.0x to 13.2x F-FFO. Applying such multiples to the Company's LTM FFO
per share ($1.15) and F-FFO per share ($1.25) resulted in implied ranges for the
Common Stock consideration and the cash consideration to holders of OP Units of
$11.27 to $17.02 and $11.25 to $16.50, respectively.
None of the companies or acquired entities utilized in the above Prudential
Securities Comparable Group analysis and Prudential Securities Transaction
Comparables analysis for comparative purposes is, of course, identical to the
Company. Accordingly, a complete analysis of the results of the foregoing
calculations cannot be limited to a quantitative review of such results and
involves complex considerations and judgments concerning differences in
financial and operating characteristics of the Prudential Securities Comparable
Group and the acquired entities in the Prudential Securities Transaction
Comparables and other factors that could affect the public trading value and
consideration paid for each of the Prudential Securities Comparable Group and
the acquired entities, respectively, as well as that of the Company.
LIQUIDATION ANALYSIS. Prudential Securities compared the estimated
liquidation value per share of $11.03, based on the Company's then-current draft
of its Liquidation Plan and appraisals by Cushman & Wakefield, Inc., to the
$12.25 Common Stock consideration and the $12.25 cash consideration to be
offered to holders of OP Units.
STOCK TRADING ANALYSIS. Prudential Securities reviewed the latest twelve
months historical trading prices for the Company's Common Stock and noted the
low stock price was $8.125 per share and the high stock price was $12.313 per
share.
Projected financial and other information concerning the Company and the
impact of the Merger upon the holders of the Company's Common Stock are not
necessarily indicative of future results. All projected financial information is
subject to numerous contingencies, many of which are beyond the control of
management of the Company.
The Special Committee selected Prudential Securities to provide a fairness
opinion because it is an internationally recognized investment banking firm
engaged in the valuation of businesses and their securities in connection with
mergers and acquisitions and for other purposes and has substantial experience
in transactions similar to the Merger. Pursuant to an engagement letter with
Prudential Securities, the Company has paid Prudential Securities an advisory
fee of $1,000,000. In addition, the engagement letter with Prudential Securities
provides that the Company will reimburse Prudential Securities for its
reasonable out-of-pocket expenses up to $100,000 and will indemnify Prudential
Securities and certain related persons against certain liabilities, including
liabilities under securities laws, arising out of the Merger or its engagement.
In the ordinary course of business, Prudential Securities may actively trade the
shares of the Company's Common Stock for its own account and for the accounts of
customers, and accordingly, may at any time hold a long or short position in
such securities.
Opinion of Lazard to the Company's Board Directors
OPINION OF LAZARD. Lazard delivered to the Company's Board of Directors its
written opinion that, as of April 13, 1999, the aggregate cash consideration to
be paid in connection with the Merger is fair, from a financial point of view,
to the holders of Common Stock of the Company (other than the
45
<PAGE>
Parent or any of its affiliates) and the holders of OP Units (other than the
Parent or any of its affiliates) who elect to receive the cash consideration
being offered to such holders in the Partnership Merger, taken as a whole. No
limitations were imposed by the Company's Board of Directors upon Lazard with
respect to the investigations made or the procedures followed by it in rendering
its opinion.
THE FULL TEXT OF THE OPINION OF LAZARD DATED APRIL 13, 1999, WHICH SETS
FORTH ASSUMPTIONS MADE, MATTERS CONSIDERED AND LIMITS ON THE REVIEW UNDERTAKEN,
IS ATTACHED AS APPENDIX B TO THIS PROXY STATEMENT. THE STOCKHOLDERS ARE URGED TO
READ THE OPINION IN ITS ENTIRETY. LAZARD'S OPINION IS DIRECTED ONLY TO THE
FAIRNESS OF THE AGGREGATE CASH CONSIDERATION TO BE PAID IN THE MERGER TO THE
NONAFFILIATED STOCKHOLDERS AND THE NONAFFILIATED HOLDERS OF OP UNITS WHO ELECT
TO RECEIVE CASH IN THE PARTNERSHIP MERGER, TAKEN AS A WHOLE, AND DOES NOT
CONSTITUTE A RECOMMENDATION TO ANY STOCKHOLDER OR HOLDER OF OP UNITS AS TO HOW
SUCH STOCKHOLDER OR HOLDER OF OP UNITS SHOULD VOTE. THE SUMMARY OF THE OPINION
OF LAZARD SET FORTH IN THIS PROXY STATEMENT IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO THE FULL TEXT OF SUCH OPINION.
In connection with its opinion, Lazard
- analyzed certain historical business and financial information relating to
the Company;
- reviewed certain financial projections and other data provided to Lazard
by the Company relating to its business;
- held discussions with members of the senior management of the Company with
respect to the business of the Company;
- reviewed public information with respect to certain other companies in
lines of business Lazard believed to be comparable to the business of the
Company;
- reviewed the financial terms of certain recent business combinations
involving companies in lines of business Lazard believed to be comparable
to those of the Company;
- reviewed the historical stock prices and trading volumes of the Common
Stock; and
- conducted such other financial studies, analyses and investigations as
Lazard deemed appropriate.
Lazard relied upon the accuracy and completeness of the financial and other
information that was reviewed by Lazard, and did not assume any responsibility
for the independent verification of such information or any independent
valuation or appraisal of any of the assets or liabilities of the Company, or
concerning the solvency or fair value of the Company, the Operating Partnership,
Berkshire Apartments, Inc., the Parent, the Acquiror, the Acquiror Operating
Partnership or any other entity. With respect to the financial forecasts
referred to above, Lazard assumed that such financial forecasts were reasonably
prepared on bases reflecting the best currently available estimates and
judgments of the management of the Company as to the future financial
performance of its business. Lazard assumed no responsibility for and expressed
no view as to such forecasts or the assumptions on which they were based.
Lazard's opinion was necessarily based on economic, monetary, market and other
conditions as in effect on, and the information made available to it as of, the
date of its opinion.
In rendering its opinion, Lazard assumed that the Merger would be
consummated on the terms described in the Merger Agreement, without any waiver
of any terms or conditions by the Company or the Operating Partnership, and that
obtaining the necessary regulatory approvals for the Merger would not have a
material adverse effect on the Company or the Operating Partnership.
In arriving at its opinion and making its presentation to the Company's
Board of Directors at the April 13, 1999 meeting of the Company's Board of
Directors, Lazard considered and discussed certain financial analyses and other
factors. In connection with its presentation on April 13, 1999, Lazard
46
<PAGE>
provided the Company's Board of Directors with a summary of results obtained by
using several different valuation methods as well as other materials concerning
the Common Stock and business of the Company (such summary and other materials
collectively referred to as the "Lazard Presentation").
The following is a summary of the Lazard Presentation.
COMPARABLE PUBLIC COMPANY ANALYSIS. Lazard reviewed and compared the
financial and market performance of the following group of 15 publicly traded
multi-family REITs: AMLI Residential Properties Trust, Archstone Communities
Trust, Apartment Investment and Management Company, Associated Estates Realty
Corporation, AvalonBay Communities Inc., BRE Properties Inc., Camden Property
Trust, Charles E. Smith Residential Realty, Inc., Equity Residential Properties
Trust ("Equity Residential"), Essex Property Trust, Inc., Gables Residential
Trust, Post Properties, Inc., Summit Properties, Inc., United Dominion Realty
Trust, Inc. and Walden Residential Properties, Inc. Lazard examined certain
publicly available financial data of the selected companies to derive
- multiples of market value of common equity to funds from operations
("FFO") for the fiscal year ending December 31, 1998 and
- multiples of market value of common equity to projected FFO (based on
published consensus FFO estimates) for the fiscal years ending December
31, 1999 and December 31, 2000 ("FFO Multiples").
Lazard compared the FFO Multiples for the selected companies to the FFO
Multiple implied by the Merger Price. The FFO Multiple implied by the Merger
Price was
- above the high end of the range of FFO Multiples of the selected companies
for the fiscal year 2000,
- slightly below the high end of the range of FFO Multiples of the selected
companies for the fiscal year 1999 and
- slightly above the mid-point of the range of FFO Multiples of the selected
companies for the fiscal year 1998.
Lazard then applied the mean FFO Multiple of the selected companies for each
of the fiscal years 1998, 1999 and 2000 to actual or projected FFO of the
Company for the corresponding years. This analysis resulted in an equity value
reference range per share of the Company's Common Stock of $10.17 to $10.68.
COMPARABLE TRANSACTION ANALYSIS. Lazard reviewed the consideration proposed
to be paid in other recently announced acquisitions of publicly traded
multi-family REIT companies. Specifically, Lazard reviewed the following
acquiror/acquiree transactions: TIC Acquisition LLC/Irvine Apartment Communities
(1998), Equity Residential/Merry Land and Investment Company (1998), Security
Capital Pacific Trust/Security Capital Atlantic (1998), Bay Apartment
Communities/Avalon Properties (1998), Camden Property Trust/Oasis Residential
(1997), Apartment Investment and Management Company/ Ambassador Properties
(1997), Equity Residential/Evans Withycombe Residential, Inc. (1997), Post
Properties Trust/Columbus Realty Trust (1997), Equity Residential/Wellsford
Residential (1997). Lazard examined certain publicly available financial data of
the selected transactions to derive (i) the multiple of the aggregate value of
each such transaction to FFO of the target company for the fiscal year ending
prior to the date of the transaction and (ii) the multiple of the aggregate
value of each such transaction to projected FFO (based on published consensus
FFO estimates) of the target company for each of the next two fiscal years
ending after the date of the transaction ("Implied FFO Multiples").
Lazard compared the Implied FFO Multiples for the selected transactions to
the Implied FFO Multiple of the Merger. The Implied FFO Multiple of the Merger
was substantially below the mean Implied FFO Multiple of the selected
transactions for each year. However, Lazard did not view such
47
<PAGE>
result as significant due to the substantial decrease in the stock prices and
FFO Multiples of residential and other REITs during the six months prior to the
date of the Lazard Presentation. For each such transaction, Lazard also
calculated the percentage premium represented by the excess of (x) the
acquisition price per share payable in such transaction over (y) the closing
stock price of the target company on the trading day immediately prior to the
announcement of such transaction (the "Implied Premium"). The Implied Premium
represented by the Merger Price (26.5%) was significantly higher than the mean
of the Implied Premiums for the selected transactions (10.3%).
ASSET VALUATION ANALYSIS. Using publicly available information, Lazard
reviewed selected transactions involving acquisitions by public REITs of
comparable multi-family apartment assets or portfolios that were announced since
January 1998. Lazard calculated the purchase price per unit ("PPU") for each of
these transactions. This analysis produced a PPU ranging from $18,536 to $68,500
with a mean of $47,231. The PPU implied by the Merger Price of $50,280 was
slightly above the mean of the range of PPUs of the selected transactions.
Lazard then applied the mean PPU derived from the selected transactions to the
number of residential units of the Company. This calculation indicated an asset
value per share of the Company of $10.65.
DISCOUNTED CASH FLOW ANALYSIS. Using a discounted cash flow ("DCF")
methodology, Lazard estimated the present value of Adjusted FFO and Adjusted
earnings before interest, taxes, depreciation and amortization ("EBITDA") of the
Company if the Company were to perform in accordance with the Company's
management projections based on operating forecasts of the Company's management
for 1999, 2000 and 2001 and extrapolations thereof. Adjusted FFO represents the
amount of funds from operations after providing for an assumed level of capital
expenditures of $350 per unit (increasing at a rate of 3% per year). Adjusted
EBITDA represents earnings before interest, taxes, depreciation and amortization
after providing for an assumed level of capital expenditures of $350 per unit
(increasing at a rate of 3% per year).
Lazard aggregated (x) the net present value of the projected Adjusted FFO of
the Company over the three-year period from 1999 to 2001 with (y) the present
value of the range of terminal values described below. The range of terminal
values was calculated by applying multiples of 7.0x to 8.5x to the Company's
projected Adjusted FFO for the fiscal year 2002. This range of terminal values
represented the Company's value beyond 2001. As part of the DCF analysis, Lazard
used discount rates ranging from 13% to 15%. Based on the DCF analysis, Lazard
determined (i) a range of the equity value per share of the Company of $9.56 to
$11.89 and (ii) a base-case equity value per share of the Company (calculated by
applying a multiple of 8.0x and a discount rate of 14%) of $11.00.
Lazard also aggregated (x) the net present value of the projected Adjusted
EBITDA of the Company over the three-year period from 1999 to 2001 with (y) the
present value of the range of terminal values described below. The range of
terminal values was calculated by applying capitalization rates of 9.0% to 10.5%
to the Company's projected Adjusted EBITDA for the fiscal year 2002. This range
of terminal values represented the Company's value beyond 2001. As part of the
DCF analysis, Lazard used discount rates ranging from 11% to 13%. Based on the
DCF analysis, Lazard determined (i) a range of the equity value per share of the
Company of $8.84 to $13.17 and (ii) a base-case equity value per share of the
Company (calculated by applying a capitalization rate of 9.5% and a discount
rate of 12%) of $11.39.
LIQUIDATION ANALYSIS. Lazard also reviewed the February 1999 Schedule of
Estimated Amounts Available for Distribution in liquidation of the Company as of
December 31, 1998 (the "February 1999 Estimated Proceeds Schedule"). The
February 1999 Estimated Proceeds Schedule was prepared based on estimates and
assumptions by management and, in the case of real estate assets, independent
appraisals prepared by Cushman & Wakefield, Inc. as of October 15, 1998. The
February 1999 Estimated Proceeds Schedule reflected net assets in liquidation
per share of $11.03.
48
<PAGE>
STOCK TRADING HISTORY. Lazard examined the history of trading prices for
the Company's Common Stock. The Company went public in June 1991 at a price of
$9.38 per share. Since its initial public offering, the Company's Common Stock
has traded as high as $12.75 per share. Over the 52 weeks prior to March 4, 1999
(the date on which the Company announced that it had received several
acquisition offers), the Company's Common Stock traded between $8.13 and $12.31.
The average closing price of the Company's Common Stock during the 30-day period
prior to March 4, 1999, was $9.54. The Merger Price represents a premium of
28.4% over such 30-day average closing price and is 0.5% below the Company's
52-week high closing price prior to March 4, 1999.
In arriving at its opinion and in preparing the Lazard Presentation, Lazard
performed a variety of financial analyses, the material portions of which are
summarized above. The summary set forth above does not purport to be a complete
description of the analyses performed by Lazard. In addition, Lazard believes
that its analyses must be considered as a whole and that selecting portions of
such analyses and the factors considered by it, without considering all of such
analyses and factors, could create an incomplete view of the process underlying
its analyses set forth in the opinion and the Lazard Presentation. The
preparation of a fairness opinion is a complex process and is not necessarily
susceptible to partial analysis or summary description. With regard to the
comparable public company analysis, the comparable transaction analysis and the
asset valuation analysis summarized above, Lazard selected comparable public
companies and portfolios of properties on the basis of various factors,
including the size of the public company or portfolio of properties and
similarity of the line of business; however, no public company or portfolio of
properties utilized as a comparison is identical to the Company. Accordingly, an
analysis of the foregoing is not mathematical; rather, it involves complex
considerations and judgments concerning differences in financial and operating
characteristics of the comparable companies or portfolios and other factors that
could affect the acquisition or public trading value of the comparable companies
or portfolios to which the Company or its properties are being compared.
In performing its analyses, Lazard made numerous assumptions with respect to
industry performance, general business and economic conditions and other
matters, many of which are beyond the Company's control. Any estimates contained
in such analyses are not necessarily indicative of actual past or future results
or values, which may be significantly more or less than such estimates.
Estimates of values of companies or parts of companies do not purport to be
appraisals or necessarily to reflect the price at which such companies or parts
may actually be sold, and such estimates are inherently subject to uncertainty.
In calculating the equity value per share of the Company utilizing the
methodologies described above, Lazard calculated the total equity value of the
Company (excluding preferred stock) and divided such result by the total number
of shares of the Company's Common Stock outstanding on the date of the Lazard
Presentation (assuming that all units of the Operating Partnership were
converted into shares of the Company's Common Stock on a one-for-one basis).
Lazard is an internationally recognized investment banking firm that
regularly engages in the valuation of businesses and their securities in
connection with mergers and acquisitions. The Company's Board of Directors
selected Lazard to act as its financial advisor on the basis of Lazard's
international reputation and experience in connection with the multi-family REIT
industry, the Company's prior relationship with Lazard and Lazard's familiarity
with the Company. At the time Lazard was engaged by the Company, one of the
Directors of the Company, Arthur Solomon, was a Managing Director of Lazard.
Pursuant to a letter agreement dated May 21, 1999 between the Company and
Lazard (the "Engagement Letter"), Lazard agreed to act as financial advisor to
the Company in connection with the Merger. Pursuant to the Engagement Letter,
the Company paid Lazard a fee of $150,000 upon the execution of the Engagement
Letter and upon the closing of the Merger will be obligated to pay Lazard a cash
fee estimated to be approximately $3,000,000. Upon the closing of the Merger,
the $150,000 fee will be credited against the $3,000,000 cash fee. The Company
also agreed to indemnify
49
<PAGE>
Lazard and certain related persons against certain liabilities, including
liabilities under the federal securities laws, relating to, or arising out of,
its engagement.
As noted under the caption "--Recommendation of the Special Committee and
the Board of Directors; Fairness of the Merger", the fairness opinion of Lazard
was only one of the many factors considered by the Company's Board of Directors
and the Special Committee in determining to approve the Merger.
Opinion of Lehman to the Company's Board of Directors
Lehman has acted as financial advisor to the Board of Directors of the
Company in connection with the Merger.
As part of its role as financial advisor to the Company, on April 13, 1999,
Lehman delivered its oral opinion (subsequently confirmed in writing in an
opinion dated April 13, 1999) (the "Lehman Opinion") to the Board of Directors
of the Company to the effect that, as of the date of the opinion and subject to
certain assumptions made, factors considered and limitations imposed, as set
forth in the opinion, the consideration, defined as $12.25 per share payable in
cash, to be offered to the holders of the Company's Common Stock in the Merger
is fair, from a financial point of view, to such holders.
A COPY OF LEHMAN'S OPINION IS ATTACHED TO THIS PROXY STATEMENT AS APPENDIX
C. THE STOCKHOLDERS SHOULD READ SUCH OPINION IN ITS ENTIRETY FOR A DISCUSSION OF
THE ASSUMPTIONS MADE, MATTERS CONSIDERED AND LIMITATIONS ON THE REVIEW
UNDERTAKEN BY LEHMAN IN RENDERING ITS OPINION. THE SUMMARY OF SUCH OPINION SET
FORTH IN THIS PROXY STATEMENT IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE
FULL TEXT OF SUCH OPINION.
No limitations were imposed by the Company on the scope of Lehman's
investigation or the procedures to be followed by Lehman in rendering its
opinion, except that, because the Company had engaged Lazard to solicit
acquisition proposals, the Company did not authorize Lehman to solicit, and
Lehman did not solicit, proposals from third parties with respect to the
purchase of any or all of the Company's business. The form and amount of the
consideration to be offered to the holders of the Common Stock were determined
through arm's-length negotiations between the parties. In arriving at its
opinion, Lehman did not ascribe a specific range of value to the Company, but
rather made its determination as to the fairness, from a financial point of
view, of the consideration to be offered to the holders of Common Stock, on the
basis of the financial and comparative analysis described below. Lehman's
opinion is for the use and benefit of the Board of Directors of the Company and
was rendered to the Board in connection with its consideration of the Merger.
Lehman's opinion is not intended to be and does not constitute a recommendation
to any Stockholder of the Company as to whether to accept the consideration
offered in the Merger. Lehman was not requested to opine as to, and its opinion
does not address, the Company's underlying business decision to proceed with or
effect the Merger.
In arriving at its opinion, Lehman reviewed and analyzed:
- the Merger Agreement and the specific terms of the Merger;
- publicly available information concerning the Company that it believed to
be relevant to its analysis, including its Annual Report on Form 10-K for
the year ended December 31, 1998;
- financial and operating information with respect to the business,
operations and prospects of the Company furnished to it by the Company;
- a trading history of the Common Stock from April 12, 1997 to April 12,
1999 and a comparison of that trading history with those of other
companies that it deemed relevant;
50
<PAGE>
- a comparison of the historical financial results and present financial
condition of the Company with those of other companies that it deemed
relevant;
- a comparison of the financial terms of the Merger with the financial terms
of certain other transactions that it deemed relevant; and
- the results of the Company's and Lazard's efforts to solicit indications
of interest to purchase all or a portion of the Company's business.
In addition, Lehman had discussions with the management of the Company
concerning its business, operations, assets, financial condition and prospects
and undertook such other studies, analyses and investigations as it deemed
appropriate.
In arriving at its opinion, Lehman assumed and relied upon the accuracy and
completeness of the financial and other information used by it without assuming
any responsibility for independent verification of such information and further
relied upon the assurances of management of the Company that they were not aware
of any facts or circumstances that would make such information inaccurate or
misleading. With respect to the financial projections of the Company, upon the
Company's advice, Lehman assumed that such projections were reasonably prepared
on a basis reflecting the best estimates and judgments of the management of the
Company then available as to its future financial performance and that the
Company would perform substantially in accordance with such projections. See
"Certain Financial Projections of the Company." In arriving at its opinion,
Lehman conducted only a limited physical inspection of the properties and
facilities of the Company and did not make or obtain any evaluations or
appraisals of the assets or liabilities of the Company. The Lehman Opinion
necessarily was based upon market, economic and other conditions as they existed
on, and could be evaluated as of, the date of the opinion.
In connection with the preparation and delivery of its opinion, Lehman
performed a variety of financial and comparative analyses. All material analyses
performed by Lehman are described below. The preparation of a fairness opinion
involves various determinations as to the most appropriate and relevant methods
of financial and comparative analysis and the application of those methods to
the particular circumstances and, therefore, such an opinion is not readily
susceptible to summary description. Furthermore, in arriving at its opinion,
Lehman did not attribute any particular weight to any analysis or factor
considered by it, but rather made qualitative judgments as to the significance
and relevance of each analysis and factor. Accordingly, Lehman believes that its
analyses must be considered as a whole and that considering any portion of its
analyses and factors, without considering all analyses and factors, could create
a misleading or incomplete view of the process underlying its opinion. In its
analyses, Lehman made numerous assumptions with respect to industry performance,
general business and economic conditions and other matters, many of which are
beyond the control of the Company. Any estimates contained in these analyses are
not necessarily indicative of actual values or predictive of future results or
values, which may be significantly more or less favorable than as set forth
therein. In addition, analyses relating to the value of businesses do not
purport to be appraisals or to reflect the prices at which businesses actually
may be sold.
Certain of the analyses include information presented in tabular format. In
order to understand fully the financial analyses used by Lehman, the tables must
be read together with the text of each summary. The tables alone do not
constitute a complete description of such financial analyses.
The valuation analyses performed by Lehman consisted of the following:
STOCK TRADING ANALYSIS. Lehman considered various historical data
concerning the trading prices for the Company's Common Stock for the period from
April 12, 1997 to April 12, 1999. At April 12, 1999, the closing share price of
the Company's Common Stock was $11.13. Lehman calculated the average closing
price of the Company's Common Stock for the following time periods leading up to
51
<PAGE>
and ending with April 12, 1999: One week ($11.16), one month ($11.27), three
months ($10.25.), six months ($9.84), one year ($10.48), and two years ($10.94).
The table below shows the premium of the consideration to the average
closing share price of the Company over the following periods:
<TABLE>
<CAPTION>
ONE DAY ONE WEEK ONE MONTH THREE MONTHS SIX MONTHS ONE YEAR TWO YEARS
- ------------- --------------- ----------------- ----------------- --------------- ------------- ---------------
<S> <C> <C> <C> <C> <C> <C>
10% 10% 9% 19% 25% 17% 12%
</TABLE>
COMPARABLE PUBLIC COMPANY ANALYSIS. Lehman compared certain publicly
available financial and operating data and projected financial performance
(based upon third-party research analysts' estimates) of selected publicly
traded multifamily REITs. The multifamily REITs reviewed in this analysis
(collectively, the "Lehman Comparable Group") were selected because they are
engaged in the business in which the Company is engaged, operate in similar
geographic regions and are of comparable market capitalizations. The Lehman
Comparable Group consisted of: Summit Properties, Camden Property Trust, Walden
Residential Properties, Gables Residential Trust and Mid-America Apartment
Communities. Lehman analyzed trading multiples of 1998 EBITDA, projected 1999
EBITDA, projected 1999 FFO and projected 2000 FFO from the Comparable Group
based upon research analyst estimates published on First Call for the Lehman
Comparable Group and based on management projections for the Company. Lehman
calculated, using this methodology, an implied equity value for the Company
between $8.09 and $15.43 per share.
Because of the inherent differences between the businesses, operations and
prospects of the Company and the businesses, operations and prospects of the
companies included in the Lehman Comparable Group, Lehman believed that it was
inappropriate to, and therefore did not, rely solely on the quantitative results
of the analysis, and accordingly also made qualitative judgments concerning
differences between the financial and operating characteristics of the Company
and the companies in the Lehman Comparable Group that would affect the public
trading values of the Company and such comparable companies.
COMPARABLE TRANSACTION ANALYSIS. Lehman reviewed certain information
regarding eight selected transactions involving publicly traded multifamily
REITs since January 1997. Lehman reviewed the prices paid in these transactions
as a percentage premium to the closing price of the acquired company in each
transaction and as a multiple of the historical and projected twelve months'
FFO, as publicly available or as estimated by third-party research analysts.
The eight completed transactions reviewed in this analysis (collectively,
the "Lehman Transaction Comparables") were: the acquisition of Merry Land and
Investment Company by Equity Residential Properties Trust, the acquisition of
Security Capital Atlantic by Security Capital Pacific Trust, the acquisition of
Avalon Properties by Bay Apartment Communities, the acquisition of Ambassador
Apartments by Apartment Investment and Management Company, the acquisition of
Oasis Residential by Camden Property Trust, the acquisition of Evans Withycombe
Residential by Equity Residential Properties Trust, the acquisition of Columbus
Realty Trust by Post Properties, and the acquisition of Wellsford Residential
Property Trust by Equity Residential Properties Trust.
Each of the transactions involves companies engaged in the business in which
the Company is engaged. Lehman calculated the implied equity value of the
Company by selecting a range of percentage premiums of the prices paid in the
Lehman Transaction Comparables over the closing stock price of the acquired
company in each transaction. Based on the Lehman Transaction Comparables, Lehman
applied a premium range between -3.9% and 19.0%. Using this methodology, Lehman
calculated an implied equity value of the Company between $10.69 and $13.24 per
share.
Lehman calculated the implied equity value of the Company by selecting a
range of multiples of the projected FFO for the Lehman Transaction Comparables
and applying this multiple range to the
52
<PAGE>
estimated 1999 FFO of the Company, as published by First Call. Based on the
Lehman Transaction Comparables, Lehman used a multiple range between 10.5x and
12.6x 1999 projected FFO. Using this methodology, Lehman calculated an implied
equity value of the Company between $13.13 and $15.75 per share, which range is
higher than the $12.25 per share of Common Stock payable in the Merger. However,
due to the fact that many of the transactions analyzed occurred prior to July
1998, this analysis did not reflect the substantial decline in FFO multiples
since July 1998 and, accordingly, did not affect Lehman's conclusion as to the
fairness of the consideration payable in the Merger, especially in light of the
fact that the consideration payable in the Merger was within the range produced
by each other analysis described herein.
Because the market conditions, rationale and circumstances surrounding each
of the transactions analyzed were specific to each transaction and because of
the inherent differences between the businesses, operations and prospects of the
Company and the acquired businesses analyzed, Lehman believed that it was
inappropriate to, and therefore did not, rely solely on the quantitative results
of the analysis, and accordingly, also made qualitative judgments concerning
differences between the characteristics of these transactions and the Merger
that would affect the acquisition values of the Company and such acquired
companies.
NET ASSET VALUE ANALYSIS. Lehman performed an analysis of the Company's net
asset value, i.e., the estimated market value of the Company's real estate and
certain other assets less its liabilities. Capitalization rates ranging from
9.50% to 10.00% were applied to the Company's projection of 1999 net operating
income for its real estate properties. Adjustments for certain other assets of
the Company were added to the value of the Company's real estate to determine
the total market value of the Company's assets. To arrive at a range of the
Company's net asset value, the Company's liabilities were deducted from the
total market value of its assets. Lehman calculated, using this methodology, an
implied equity value for the Company between $11.46 and $12.79 per share.
DISCOUNTED CASH FLOW ANALYSIS. Lehman performed a discounted cash flow
analysis of the Company. Lehman utilized estimates of projected financial
performance prepared by the Company for the year 1999 through the year 2002.
Utilizing these projections, Lehman calculated a range of values based upon (a)
the sum of the discounted net present value of the projected EBITDA after
capital expenditures for the Company to the year 2002, and (b) the projected
terminal value of the Company at that year based upon a range of multiples of
projected FFO. Lehman used discount rates ranging from 10.0% to 11.0% and
terminal multiples of FFO ranging from 7.5x to 8.5x. Using this methodology,
Lehman calculated an equity value of the Company between $11.17 and $13.11 per
share.
Lehman is an internationally recognized investment banking firm and, as part
of its investment banking activities, is regularly engaged in the evaluation of
businesses and their securities in connection with mergers and acquisitions,
negotiated underwritings, competitive bids, secondary distributions of listed
and unlisted securities, private placements and valuations for corporate and
other purposes. The Board of Directors of the Company selected Lehman because of
its expertise, reputation and familiarity with the Company in particular and the
real estate industry in general, and because its investment banking
professionals have substantial experience in transactions similar to the Merger.
As compensation for its services in connection with the Merger, the Company
will pay Lehman a fee of approximately $1.2 million, $1,045,000 of which has
been paid and approximately $200,000 of which will be payable upon the Closing.
The Company has also agreed to reimburse Lehman for up to $100,000 of its
reasonable expenses (including, without limitation, professional and legal fees
and disbursements) incurred in connection with its engagement, and to indemnify
Lehman and certain related persons against certain liabilities in connection
with its engagement, including certain liabilities under the federal securities
laws.
Lehman has also performed various investment banking services for the
Company in the past, including acting as lead underwriter for a public offering
of Common Stock consummated on
53
<PAGE>
November 4, 1997, for which it has received customary fees and commissions. In
the ordinary course of its business, Lehman actively trades in the equity
securities of the Company for its own account and for the accounts of its
customers and, accordingly, may at any time hold a long or short position in
these securities.
POSITION OF THE PARENT, THE ACQUIROR AND CERTAIN AFFILIATES
The rules of the Commission require each of the Parent, the Acquiror,
Douglas Krupp, his brother George Krupp, the partners of the Parent (Aptco
Gen-Par, L.L.C. and Aptco Holdings, L.L.C.) that are affiliates of Douglas Krupp
(such partners, together with Douglas Krupp and George Krupp, are referred to as
the "Krupp Affiliates"), Blackstone Real Estate Partners III L.P. ("BREP III")
and Whitehall to express its or his belief as to the fairness of the Merger to
the Nonaffiliated Stockholders. While none of the Parent, the Acquiror, the
Krupp Affiliates, BREP III or Whitehall has undertaken any evaluation of the
Merger from the standpoint of fairness to the Nonaffiliated Stockholders, they
have considered the factors listed above under "Recommendation of the Special
Committee and the Board of Directors; Fairness of the Merger" which were taken
into consideration by the Special Committee and the Board of Directors, based,
however, only on the more limited facts and information available to them.
Although the Parent, the Acquiror, the Krupp Affiliates, BREP III and Whitehall
did not find it practicable to quantify or otherwise attach relative weights to
the factors considered by the Special Committee and the Board of Directors, each
of the Parent, the Acquiror, the Krupp Affiliates, BREP III and Whitehall did
consider in particular the fact that the $12.25 per share of Common Stock to be
paid in the Merger represented a premium of 28.4% to the average closing price
of the Common Stock on the NYSE over the 30-day period prior to March 4, 1999
(when the Parent publicly announced its initial bid of $11.05 per share).
Each of the Parent, the Acquiror, the Krupp Affiliates, BREP III and
Whitehall also considered the fact that the Special Committee received the
written opinion of Prudential Securities, and the Board of Directors received
the written opinions of Lazard and Lehman, with respect to the fairness of the
consideration to be received by the holders of Common Stock and the holders of
OP Units (if such holders elect to receive cash). Each of the Parent, the
Acquiror, the Krupp Affiliates, BREP III and Whitehall has reviewed and adopts
the conclusions reached by each of Prudential Securities, Lazard and Lehman as
set forth in this Proxy Statement with respect to the fairness of the
consideration to be received by the holders of Common Stock and the holders of
OP Units (if such holders elect to receive cash) based on the analyses of such
firms as set forth herein, subject, in each case, to the assumptions and
limitations of such conclusions and analyses as set forth in each of their
respective opinions and this Proxy Statement. In addition, each of the Parent,
the Acquiror, the Krupp Affiliates, BREP III and Whitehall considered the
measures taken by the Board of Directors to ensure the procedural fairness of
the transaction, including the formation of the Special Committee, the retention
of legal and financial advisors by the Special Committee and the arms-length
nature of the negotiations. On the basis of all of the above factors, each of
the Parent, the Acquiror, the Krupp Affiliates, BREP III and Whitehall believes
that the Merger is fair, from a financial point of view, to the Nonaffiliated
Stockholders.
INTERESTS OF CERTAIN PERSONS IN MATTERS TO BE ACTED UPON
In considering the recommendation of the Special Committee and the Board of
Directors, Stockholders should be aware that some executive officers and
Directors of the Company have interests in the Merger or relationships,
including those referred to below, that may present potential or actual
conflicts of interest in connection with the Merger. The Special Committee and
the Board of Directors were aware of these potential or actual conflicts of
interest and considered them (as described in "--Recommendation of the Special
Committee and the Board of Directors; Fairness of the Merger")
54
<PAGE>
along with other matters described under "--Recommendation of the Special
Committee and the Board of Directors; Fairness of the Merger" and "Certain
Relationships and Transactions."
Formation of the Parent. The Parent (Berkshire Realty Holdings, L.P.) was
formed in connection with the transactions contemplated by the Merger Agreement.
Aptco Gen-Par, L.L.C., a Delaware limited liability company and a general
partner of the Parent ("Berkshire GP"), and Aptco Holdings, L.L.C., a Delaware
limited liability company and the parent of Berkshire GP ("Berkshire LP"), are
affiliates of Douglas Krupp, the Chairman of the Company's Board of Directors,
and have agreed under the Parent Partnership Agreement to cause an aggregate of
5,416,269 shares of Common Stock and OP Units currently owned by Mr. Krupp and
entities controlled by him to be contributed to the Parent at the time of the
Merger in exchange for equity interests in the Parent.
As of the Effective Time, Berkshire LP and Berkshire GP are expected to own
in the aggregate between approximately 19.4% and 25.6% of the then outstanding
interests of the Parent, depending on the amount of financing obtained as of the
Closing and the number of holders of OP Units who elect to receive cash in the
Partnership Merger. These interests in the Parent will generally entitle
Berkshire GP and Berkshire LP, after certain former holders of OP Units,
Whitehall, and affiliates of Whitehall and Blackstone who are partners of the
Parent have each received a specified return on their investments, to a
disproportionate portion of the Parent's distributions of available cash and
proceeds in the event of the sale or liquidation of the Surviving Company
("Parent Distributions"). Consequently, Mr. Krupp (through his affiliates) will
have a significant interest in the Parent and will continue to have the
opportunity to participate in the future earnings growth, if any, of the
Surviving Company and benefit from any increases in the value of the Surviving
Company. See "--Purpose and Structure of the Merger." In addition, it is
anticipated that Mr. Krupp will enter into an employment agreement with the
Surviving Company as described below.
David Olney, an executive officer of the Company, is the President of the
Parent's administering general partner (Berkshire GP) and is expected to serve
as the President of the Parent upon completion of the Merger.
Payments for Certain Executives. Pursuant to their respective employment
agreements with the Company, if the Merger is consummated and their employment
is terminated by the Surviving Company without cause during the two-year period
following the Merger, Messrs. David Marshall, Ridge Frew, Dennis Suarez, James
Jackson and David Olney and Ms. Marianne Pritchard (the "Executives") will be
entitled to a lump-sum severance payment and the right to receive continued
benefits. The amount of the severance payment for each Executive other than Mr.
Marshall is generally two years of both base salary and target bonus. The amount
of the severance payment for Mr. Marshall is three years of both base salary and
target bonus or an aggregate of approximately $1,492,000. Mr. Marshall and the
Parent have agreed that he will terminate his employment and receive his
severance payment upon consummation of the Merger. Ms. Pritchard and the Company
have agreed that she will not receive her severance payment as a result of the
termination of her employment following the Merger. See "--Employment and
Related Arrangements and Agreements."
If the Merger is consummated, Scott D. Spelfogel, the Senior Vice President,
General Counsel and Secretary of the Company and Vice President and Secretary of
Berkshire GP, will receive a bonus of $175,000. Mr. Spelfogel became an officer
of the Parent after the execution of the Merger Agreement.
Stock Purchase Loan Agreements. The Company has entered into agreements
with each of Messrs. Marshall, Frew and Olney and Ms. Pritchard, dated as of
February 28, 1997, in the case of Mr. Marshall, and January 2, 1998, in the case
of the other executive officers, pursuant to which the Company loaned the
respective officer money to purchase shares of the Common Stock. As a result of
the Merger, the officers will have the outstanding amounts payable pursuant to
such agreements forgiven by the Company in accordance with the terms of the
loan. The outstanding amounts under the
55
<PAGE>
loans as of August 4, 1999 are as follows: Mr. Marshall $850,000: Mr. Frew
$475,000; Mr. Olney $475,000; and Ms. Pritchard $475,000.
Options. Certain Directors and executive officers have received options to
acquire Common Stock (the "Options") pursuant to the Company's Amended and
Restated Stock Option Plan (the "Stock Option Plan"). Pursuant to the Stock
Option Plan and the Merger Agreement, at the time of closing of the Merger, each
outstanding Option, whether or not then vested or exercisable, will be converted
into a cash amount equal to the excess of $12.25 over the exercise price for
each share of Common Stock subject to the Option, payable at the Closing.
Payments pursuant to these Options will be approximately $1,324,000 in the
aggregate.
The table below shows the Options currently held by each of the Company's
executive officers and Directors (and all other individuals as a group) and the
amounts in respect of such Options that such individuals will be entitled to
receive at the Effective Time.
<TABLE>
<CAPTION>
AMOUNT TO BE
TOTAL RECEIVED AT
OPTIONS EFFECTIVE
OUTSTANDING TIME
------------ -------------
<S> <C> <C>
DIRECTORS:
Terrance Ahern...................................................................... 10,000 $ 10,750
David deWilde....................................................................... 30,000 42,188
Paul Finnegan....................................................................... 33,000 46,500
Charles Goldberg.................................................................... 27,000 39,813
Paul Kazilionis..................................................................... 8,000 8,688
E. Robert Roskind................................................................... 28,000 39,750
Arthur Solomon...................................................................... 8,000 8,688
------------ -------------
SUBTOTAL FOR DIRECTORS............................................................ 144,000 $ 196,377
EXECUTIVE OFFICERS:
Ridge Frew.......................................................................... 60,000 $ 75,000
James Jackson....................................................................... 48,000 46,875
David Marshall...................................................................... 410,000 578,750
David Olney......................................................................... 55,000 98,750
Marianne Pritchard.................................................................. 61,000 126,250
Kenneth Richard..................................................................... 39,000 38,625
Scott Spelfogel..................................................................... 42,000 62,625
Dennis Suarez....................................................................... 71,500 101,000
------------ -------------
SUBTOTAL FOR EXECUTIVE OFFICERS................................................... 786,500 $ 1,127,875
ALL OTHER INDIVIDUALS AS A GROUP.................................................... 624,600 $ 859,336
------------ -------------
TOTAL............................................................................. 1,555,100 $ 2,183,588
------------ -------------
------------ -------------
</TABLE>
Directors' Retainer Fee Plan. The Company adopted a Directors' Retainer Fee
Plan dated January 1, 1997, which was approved by the Stockholders on August 14,
1997 (the "Directors Plan"), pursuant to which eligible directors may elect to
receive certain fees in cash or in shares of the Company's Common Stock or to
defer payment of such fees and credit such fees to an account consisting of
units that are equivalent in value to shares of the Company's Common Stock.
Pursuant to this plan, 5,730 shares of Common Stock were reserved for issuance
to each of David DeWilde and E. Robert Roskind as of the Record Date.
Immediately prior to the Effective Time, all share units held pursuant to the
Directors Plan will be exchanged for the right of the holder to receive an
amount in cash equal to the number of units held in such holder's account
multiplied by $12.25. Based on the total number of units outstanding as of the
Record Date, such cash amount would equal approximately $70,200, in the case of
each of Mr. deWilde and Mr. Roskind.
56
<PAGE>
Indemnification and Insurance. Pursuant to the Merger Agreement, the
Surviving Company will provide exculpation and indemnification for each person
who was at any time prior to the Effective Time, an officer, employee or
director of the Company or any of its subsidiaries. The exculpation and
indemnification provided will be equivalent to that which is currently provided
in the Certificate of Incorporation and the Company's Amended and Restated
By-laws (the "By-Laws") or the organizational documents of the applicable
subsidiary. In addition, pursuant to the Merger Agreement, for a period of six
years following the Merger the Surviving Company will provide officers and
directors liability insurance for acts or omissions occurring prior to the
Merger for each person currently covered by the Company's or the subsidiary's
officers and directors liability insurance with coverage on substantially
similar terms as currently provided by the Company or the subsidiary, as the
case may be.
Employment and Related Agreements and Arrangements. Upon the closing of the
Merger, the Parent intends to enter into employment or other agreements or
arrangements with certain executive officers of the Company as summarized below.
It is anticipated that Mr. Krupp will enter into a five-year employment
agreement with the Parent, pursuant to which he will serve as its chief
executive officer. The employment agreement would provide for an annual salary
of $250,000 and a bonus based on performance of the Surviving Company in an
amount equal to up to 50% of his base salary. The employment agreement
contemplates that if Mr. Krupp is terminated as chief executive officer of the
Parent as a result of a "Performance Termination" (as defined in the Parent
Partnership Agreement), he will have the right to require the Parent to purchase
the partnership interests in the Parent held by Berkshire GP and Berkshire LP
(his affiliates) or any of their affiliated transferees (collectively, the "BCLP
Group") for a price equal to Fair Market Value (as defined in the Parent
Partnership Agreement) on the date such right is exercised.
If Mr. Krupp is terminated for "Cause" or "Company Cause" (each as defined
in the Parent Partnership Agreement) at any time or if he resigns prior to the
fifth anniversary of the Closing, the Parent will have the right to purchase the
partnership interests in the Parent held by the BCLP Group for a price equal to
the greater of:
- the Fair Market Value of such interests (other than the BCLP Group's right
to receive a specified portion of Parent Distributions) on the date such
right is exercised, or
- an amount equal to the BCLP Group's aggregate capital contributed to the
Parent prior to such termination, less any prior distributions made to the
BCLP Group.
If Mr. Krupp is terminated prior to the fifth anniversary of Closing other
than for "Cause," "Company Cause", a "Performance Termination" or his death or
disability, the Parent will be required to purchase the partnership interests in
the Parent held by the BCLP Group for a cash price equal to the greater of:
- the Fair Market Value of such interests on the date of such termination,
or
- the sum of
-- an amount equal to the BCLP Group's aggregate contributions to the
Parent made prior to such termination, together with a 12% per annum
return thereon for the five year period ending on the fifth
anniversary of the Closing, plus
-- an amount in cash equal to $10 million.
The Company has been advised that, following the Merger, the Parent intends
to adopt an incentive management participation plan. Under the incentive plan,
it is expected that certain to-be-identified officers and employees of the
Parent will be awarded a percentage interest in the Parent entitling them to
receive Parent Distributions, subject to the terms of the plan. Although the
participants in the plan have not been identified, it is anticipated that
members of the senior management of the Parent, who are anticipated to include
David J. Olney, Kenneth J. Richard and Ridge Frew (who are currently executive
officers of the Company), but will not include Douglas Krupp for this purpose,
will be participants in the plan.
57
<PAGE>
The Company and Marianne Pritchard, the Company's Executive Vice President
and Chief Financial Officer, have entered into an amendment (the "Retention
Agreement") to Ms. Pritchard's employment agreement with the Company pursuant to
which Ms. Pritchard will resign from her employment with the Surviving Company
60 days after the Effective Time, or such earlier time as the parties agree.
Pursuant to the terms of the amendment, if the Effective Time occurs prior to
payment of Ms. Pritchard's 1999 bonus, Ms. Pritchard will be entitled to receive
her target bonus of 40% of base pay for 1999. The amendment also provides that
Ms. Pritchard will receive $150,000, payable at the conclusion of the 60-day
period following the Effective Time, for her services with respect to
transitional assistance to the Surviving Company. Other than this payment, Ms.
Pritchard will not receive any severance payment as a result of the Merger. The
amendment will become effective at the Effective Time and, in the event the
Merger is not consummated, the amendment will be of no force or effect.
Leased Space Allocation Agreement. Pursuant to the terms of a Leased Space
Allocation Agreement, dated as of May 26, 1998, the Company is obligated to
assign its lease with respect to the Company's office space located at One
Beacon Street in Boston, Massachusetts (the "One Beacon Premises") to BCLP, an
affiliate of Mr. Krupp, and BCLP is obligated to assume the lease in the event
of a change in control of the Company in which the Company or its successor in
interest does not immediately occupy the premises for its own operations. If the
Merger is consummated, the Surviving Company will be required to assign the One
Beacon Premises to BCLP, unless the Surviving Company immediately occupies the
premises. The Company has been informed that the Parent intends to use the One
Beacon Premises for its own operations following the Merger and thus there will
be no assignment of the lease.
Administrative Services Agreement. The Company has entered into an
agreement, dated as of February 28, 1997, as amended, with BCLP whereby each
party provides certain administrative services for the other party. Pursuant to
this agreement, BCLP provides services related to legal matters and investor
records support, and the Company provides human resources services, insurance
and real estate tax support. The terms of the agreement provide that upon a
change in control of the Company, the agreement is terminable by BCLP and the
Company must pay certain termination fees to BCLP. In May 1999, the Company
consented to the assignment by BCLP to a newly-formed affiliate of BCLP of those
portions of the agreement relating to management information services. In
addition, the Company and BCLP each agreed that the Merger will not terminate
the agreement or trigger the payment of termination fees.
Business Contribution Agreement. The Company is also party to an Advisory
and Development Services Business Contribution Agreement, dated as of February
26, 1996 (the "Business Contribution Agreement"), pursuant to which BCLP
contributed its advisory services business to the Company. Under the terms of
the Business Contribution Agreement, BCLP is entitled to receive additional OP
Units in the event that the Common Stock price is equal to or greater than
certain established share price benchmarks within a six-year period which
commenced on February 29, 1996. The remaining four share price benchmarks will
be satisfied if the share price of the Common Stock is equal to or greater than
the benchmark for any 15 consecutive trading days. The remaining four share
price benchmarks begin at $13.00 and increase by $1.00 each up to a maximum of
$16.00. Upon satisfaction of each benchmark, OP Units with a value of $1.2
million must be issued to BCLP. If the Merger is consummated, no additional OP
Units will be issuable to BCLP pursuant to the Business Contribution Agreement.
58
<PAGE>
CERTAIN CONSEQUENCES OF THE MERGER
At the Effective Time, unless the Parent elects to use the Alternative
Merger, the Acquiror will be merged with and into the Company, and the Company
will continue as the Surviving Company in the Merger, with the result that:
- each membership interest in the Acquiror immediately prior to the
Effective Time will be converted in the Merger into one share of common
stock of the Surviving Company;
- the Certificate of Incorporation and By-Laws of the Company will be the
Certificate of Incorporation and By-Laws of the Surviving Company; and
- the Directors and officers of the Company, other than those who shall have
resigned, will be the directors and officers of the Surviving Company.
Alternatively, as described below, the Parent has the option, in its sole
discretion and without requiring the consent of the Company, the Board of
Directors or the Stockholders, to cause the Merger to be effected through the
Alternative Merger. If the Parent makes this election:
- each general partnership interest and limited partnership interest of the
Parent issued and outstanding immediately prior to the Effective Time will
become, as a result of the Merger, a corresponding general partnership
interest or limited partnership interest, as the case may be, of the
Surviving Company;
- the limited partnership agreement of the Parent will become the limited
partnership agreement of the Surviving Company; and
- the general partners and officers of the Parent will become the general
partners and officers of the Surviving Company.
The Parent may only elect the Alternative Merger after the approval and
adoption of the Merger Proposal and the Partnership Merger by the Stockholders
and the holders of OP Units, respectively, and after satisfaction (or waiver by
the parties entitled to the benefits thereof) of all conditions to the
consummation of the Merger set forth in the Merger Agreement. The Parent has
indicated that its current intention is to elect the Alternative Merger.
If the Parent elects to use the Alternative Merger, the Parent will continue
in existence as the Surviving Company and, without further transfer, succeed to
and possess all of the rights, privileges and powers of the Company, and all of
the assets and property of whatever kind and character of the Company will vest
in the Parent without further act or deed. Thereafter, the Parent, as the
Surviving Company, will be liable for all of the liabilities and obligations of
the Company and any claim or judgment against the Company may be enforced
against the Parent.
Following the Merger, the Nonaffiliated Stockholders will cease to
participate in future earnings growth, if any, of the Company or to benefit from
any increase in the value of the Company, and they no longer will bear the risk
of any decrease in the value of the Company. The consequences to the
Nonaffiliated Stockholders are the same regardless of whether the Parent elects
to use the Alternative Merger other than the tax treatment of certain foreign
Stockholders. See "--Material Federal Tax Consequences." Because the Common
Stock held by Nonaffiliated Stockholders will be canceled as a result of the
Merger, the Common Stock will be delisted from the NYSE.
Distributions by the Surviving Company after completion of the Merger (other
than any distribution for which the record date is a date prior to the date of
completion of the Merger) will be paid to the equity owners of the Surviving
Company and not to the Nonaffiliated Stockholders.
59
<PAGE>
The Common Stock is currently registered under the Exchange Act. Following
the Merger:
- the Common Stock will become eligible for termination of registration
pursuant to Section 12(g)(4) of the Exchange Act;
- the Parent has indicated its intention to have the Common Stock's
registration under the Exchange Act terminated; and
- upon such termination, the Company's obligation to file reports pursuant
to Section 15(d) of the Exchange Act will be suspended.
In addition, the Company will be relieved of its obligation to comply with other
requirements of the Exchange Act, including the proxy rules of Regulation 14A of
the Exchange Act, the short-swing trading profits provisions of Section 16 of
the Exchange Act and, with respect to future transactions involving the Company,
the "going private" provisions of Rule 13e-3 of the Exchange Act.
Accordingly, as a result of the Merger, the information required to be
furnished to the Commission and the stockholders of the Surviving Company will
be significantly reduced.
PLANS FOR THE COMPANY AFTER THE MERGER
Following the consummation of the Merger, the Parent will own, directly or
indirectly, all of the equity interests in the Operating Partnership. Although
the Parent has not made any definitive plans, the Parent currently intends to
operate the Surviving Company and its subsidiaries (including the Operating
Partnership) with the goal of maximizing value within a time frame of 4 1/2 to 6
years from the Closing Date. Consistent with this goal, the Parent does not
currently intend to acquire new assets. Rather, the Parent currently intends to
manage the properties of the Surviving Company and its subsidiaries so as to
maximize net operating income of such properties over the short to mid-term, and
to sell such properties at opportune times within the 4 1/2 to 6 year time
frame. However, there is no assurance that such goal will be realized or that
the Parent will not change its current intention in light of future
circumstances. For example, the Parent instead may decide to sell all or
substantially all of its properties (whether by merger or otherwise) prior to or
after the 4 1/2 to 6 year time frame, or may decide to complete an initial
public offering of its securities or may take other action that might be
inconsistent with its current intention. The Parent also intends to evaluate the
business, assets, organization structure, policies, management and personnel of
the Surviving Company and to consider what other changes, if any, would be
desirable in light of its goals.
The Parent currently does not intend to operate the Surviving Company as a
REIT after the Merger, although it may hold many of the Surviving Company's
properties through entities that will qualify as REITs. The Parent may,
following the consummation of the Merger, undertake a corporate restructuring of
the Surviving Company pursuant to which certain subsidiaries and properties
owned directly or indirectly by the Operating Partnership would be transferred
to one or more corporate subsidiaries of the Parent that are intended to qualify
and elect treatment as REITs for federal income tax purposes.
Because the Parent currently intends not to operate the Surviving Company as
a REIT, the Surviving Company will not be subject to the REIT qualification
rules under the Code, including the requirement to make annual distributions to
its stockholders of substantially all of its taxable income. Under the Parent
Partnership Agreement, the Parent is required to distribute Available Cash (as
defined in the Parent Partnership Agreement) to the extent available. It is not
expected that the Parent will make regular cash distributions in respect of the
interests in the Parent that are comparable to the regular cash dividends that
have historically been paid on the Common Stock.
The Company has contracted to sell seven of its properties for an aggregate
net sales price of approximately $59 million, which sales are expected to be
completed prior to the Closing. If the sales
60
<PAGE>
do not occur before the Closing, the Parent intends to complete the sales of
such properties after the Closing. In addition, the Parent expects to refinance
one property owned by the Company and incur additional mortgage debt on five
properties owned by the Company, concurrently with or shortly after the Closing;
if consummated, these financings are expected to provide an aggregate of
approximately $63 million of loan proceeds to the Parent, or approximately $29
million of net proceeds after repayment of existing debt on the property being
refinanced.
It is anticipated that the Directors (other than Douglas Krupp) will tender
their resignations at the Closing, and, if the Alternative Merger structure is
not utilized and the Company is the Surviving Company, the Parent will elect a
new Board representing the interests of the partners of the Parent. If the
Parent elects the Alternative Merger, the Surviving Company will be the Parent,
a limited partnership, which will not have a board of directors. The Parent has
indicated that its current intention is to elect the Alternative Merger. In
either event, the Parent currently plans to retain the members of senior
management of the Company (other than Mr. Marshall, who has agreed with the
Parent to terminate his employment effective as of the Effective Time, and Ms.
Pritchard, who has tendered her resignation effective as of the Effective Time
and has entered into the Retention Agreement), in their current positions with
the Surviving Company after the Merger (except that it is anticipated that Mr.
Olney will serve as President and Mr. Richard will serve as Chief Financial
Officer). The Parent also intends to employ Douglas Krupp as chief executive
officer of the Surviving Company, effective as of the date of the completion of
the Merger. See "--Interests of Certain Persons in Matters to be Acted
Upon--Employment and Related Agreements and Arrangements."
Although no definitive determination has been made, Whitehall and affiliates
of Whitehall, Blackstone and Douglas Krupp who are limited partners in Parent
may decide to hold their respective limited partnership interests in the Parent
indirectly, through a newly-formed partnership or limited liability company.
Except as otherwise described in this Proxy Statement, the Company has not,
and the Parent has not, as of the date of this Proxy Statement, approved any
specific plans or proposals for:
- any extraordinary corporate transaction involving the Surviving Company
after the completion of the Merger;
- any sale or transfer of a material amount of assets currently held by the
Company after the completion of the Merger;
- any change in the Board of Directors or management of the Company;
- any material change in the Surviving Company's dividend rate or policy; or
- any other material change in the Company's corporate structure or
business.
CONDUCT OF THE BUSINESS OF THE COMPANY IF THE MERGER IS NOT CONSUMMATED
If the Merger is not consummated, the business and operations of the Company
are expected to continue to be conducted substantially as currently conducted,
although the Company might seek to consummate a transaction for the sale of the
Company with a party other than the Parent and its affiliates. The Company
anticipates that Douglas Krupp would continue to be the Chairman of the Board of
Directors of the Company.
MATERIAL FEDERAL TAX CONSEQUENCES
The following discussion summarizes the material federal income tax
consequences of the Merger based upon the law as currently in effect. It does
not address any state, local or foreign tax consequences and does not address
the tax consequences to any Stockholder in special circumstances.
61
<PAGE>
Accordingly, each Stockholder should consult his or her own tax advisor
regarding the precise tax consequences of the Merger to the Stockholder in light
of the Stockholder's unique tax position.
United States Taxpayers. The exchange of Common Stock or Preferred Stock
for cash by a Stockholder in the Merger will be a taxable transaction under the
Code. In general, a Stockholder will recognize gain or loss equal to the
difference between the tax basis of his or her Common Stock or Preferred Stock
and the amount of cash received in exchange therefor. Such gain or loss will be
capital gain or loss if the Common Stock or Preferred Stock is a capital asset
in the hands of the Stockholder and will be long-term gain or loss if the
Stockholder has held the Common Stock or Preferred Stock for more than one year
as of the Effective Time. These rules may not apply to Stockholders who acquired
their Common Stock or Preferred Stock pursuant to the exercise of stock options
or other compensation arrangements with the Company or to Stockholders who are
not citizens or residents of the United States or who are otherwise subject to
special tax treatment under the Code.
Foreign Taxpayers if Primary Merger Structure is Used. If the Acquiror is
merged with and into the Company, the Merger will be treated for United States
federal income tax purposes as if the Stockholders sold their Common Stock or
Preferred Stock to the Parent, in exchange for the Merger proceeds. Pursuant to
the Foreign Investment in Real Property Tax Act of 1980 ("FIRPTA"), if the
Common Stock or the Preferred Stock is considered to be a "United States real
property interest", a Foreign Stockholder will be subject to:
- United States federal income tax at regular graduated rates on the gain
realized by such Foreign Stockholder with respect to such stock, and
- withholding in respect of this tax at a rate of 10% of the Merger
Consideration received by the Foreign Stockholder.
A "Foreign Stockholder" is a person that, for United States federal income tax
purposes, is a non-resident alien individual, a foreign corporation, a foreign
partnership, or a foreign trust or estate.
However, the amount realized by a Foreign Stockholder on the disposition of
Common Stock or Preferred Stock would not be subject to this tax or to
withholding if one of the following conditions is met:
- the Company is a "domestically-controlled REIT" within the meaning of the
Code, or
- the Common Stock or Preferred Stock is regularly traded on an established
securities market within the meaning of the Code; provided, however, that
if the Foreign Stockholder owns, actually or constructively, under the
attribution rules provided in the Code, in excess of 5% of the fair market
value of all Common Stock and Preferred Stock outstanding at any time
during the shorter of the five-year period preceding the Merger or the
Foreign Stockholder's holding period, such stockholder will be subject to
the tax, but not the withholding described above.
The Company believes that the Common Stock is regularly traded on an
established securities market within the meaning of the Code and will endeavor
to determine whether it continues to be so traded and whether the Company is a
"domestically-controlled REIT" as of the Effective Time.
Foreign Taxpayers if Alternative Merger Structure is Used. If the Parent
elects to use the Alternative Merger structure, the Merger will be treated for
United States federal income tax purposes as if the Company sold all of its
assets, including its interests in real property, to the Parent and then
liquidated. Under FIRPTA, a Foreign Stockholder will be subject to tax at the
rate described above under "Foreign Taxpayer if Primary Merger Structure is
Used" and the Company may be required to withhold either:
- in the same manner as described above under "Foreign Taxpayers if Primary
Merger Structure is Used", or
62
<PAGE>
- at a rate of 35% of the amount of the Merger Consideration that is
distributed to such Foreign Stockholder and is attributable to gains on
the disposition of the Company's real property and other "United States
real property interests" (the "35% Rate").
The law regarding the Surviving Company's obligation to withhold should the
Parent elect the Alternative Merger structure is unclear; therefore, the Parent
has indicated that it intends to cause the Surviving Company to withhold at the
higher of the 35% Rate or the rate described above under "Foreign Taxpayer if
Primary Merger Structure is Used." A Foreign Stockholder may be entitled to a
refund or credit against such holder's United States federal income tax
liability with respect to the amount withheld, provided the required information
is furnished to the Internal Revenue Service on a timely basis. Foreign
Stockholders who sell or otherwise dispose of their Common Stock or Preferred
Stock in advance of the Merger should be subject to the tax consequences
described above under "Foreign Taxpayers if Primary Merger Structure is Used."
To avoid FIRPTA withholding, non-Foreign Stockholders must certify under
penalties of perjury their taxpayer identification number, name, address and
non-foreign status by completing the certification form that will be included
with the letter of transmittal after the consummation of the Merger.
The Parent has indicated that its current intention is to elect the
Alternative Merger.
Withholding. The exchange of Common Stock or Preferred Stock for cash by a
Stockholder will be reported to the Internal Revenue Service. "Backup"
withholding at a rate of 31% will apply to payments made to a non-Foreign
Stockholder (other than a corporation or any other exempt non-Foreign
Stockholder) unless the non-Foreign Stockholder furnishes its taxpayer
identification number in the manner prescribed in applicable Treasury
regulations, certifies that such number is correct, certifies as to no loss of
exemption from backup withholding and meets certain other conditions. A Foreign
Stockholder will be exempt from backup withholding provided that certain
certification requirements are satisfied. Payment of the proceeds from the
disposition of the Common Stock or Preferred Stock to or through the United
States office of a broker is subject to information reporting and backup
withholding unless the Stockholder establishes an exemption from information
reporting and backup withholding.
Any amounts withheld from a Stockholder under the withholding rules
described above will be allowed as a refund or a credit against such
Stockholder's United States federal income tax liability, provided the required
information is furnished to the Internal Revenue Service on a timely basis.
LITIGATION REGARDING THE MERGER
On June 18, 1999, a purported class action lawsuit, FIELDS V. BERKSHIRE
REALTY COMPANY, INC., ET AL., was initiated by a Stockholder against the Company
and each of the Directors (including Mr. Krupp) alleging, among other things,
that the price offered by the Parent and the Acquiror for the shares held by
Nonaffiliated Stockholders was inadequate. The lawsuit was filed in the Chancery
Court of the State of Delaware in and for New Castle County. The complaint
seeks, among other things, injunctive relief and unspecified money damages. The
Company believes that it and the Directors have meritorious defenses to the
allegations made in the complaint and intends to contest the lawsuit vigorously.
On July 9, 1999 a purported class action lawsuit, PERTON V. BERKSHIRE REALTY
COMPANY, INC., ET AL., was initiated by a Stockholder against the Company, the
Parent, the Acquiror and the Directors of the Company (including Mr. Krupp)
alleging, among other things, that the defendants breached their fiduciary
duties to the Stockholders in connection with various actions taken by them with
respect to the Merger. The lawsuit was filed in the Chancery Court of the State
of Delaware in and for New Castle County. The complaint seeks, among other
things, injunctive relief and unspecified money
63
<PAGE>
damages. The Company and the Parent believe that they and the Directors have
meritorious defenses to the allegations made in the complaint and intend to
contest the lawsuit vigorously.
On July 22, 1999, Berkshire Apartments, Inc., in its capacity as general
partner of the Operating Partnership, and the Company commenced an action
seeking declaratory relief in the United States District Court for the District
of Massachusetts against Stephen M. Gorn, Morton Gorn and John B. Colvin in
response to claims recently raised by these individuals. Messrs. Gorn, Gorn and
Colvin are holders of OP Units and former employees or consultants to the
Company, and have recently claimed that they and their affiliates were
fraudulently induced to exchange certain properties for OP Units, that their
employment and consulting relationships with the Company were wrongly
terminated, and that the Company and Berkshire Apartments, Inc. breached their
fiduciary duties to these individuals in connection with various actions taken
with respect to the Merger and the Partnership Merger. The Company and Berkshire
Apartments, Inc. have sought a declaration that these claims are without merit
and do not support monetary or injunctive relief.
In response to this action, on August 3, 1999, Messrs. Gorn, Gorn and
Colvin, and their affiliated entity Questar Properties, Inc., commenced their
own action against the Company, the Operating Partnership, Douglas Krupp, in his
capacity as Chairman of the Board of Directors of the Company, David F.
Marshall, in his capacity as President and Chief Executive Officer of the
Company, and David J. Olney, in his capacity as Executive Vice President of the
Company, in the United States District Court for the District of Maryland, and
moved to dismiss or transfer the Company's suit in favor of the newly-filed
Maryland case. The new Maryland suit is factually similar to the Company's
action. The new suit does not, however, raise any claim with respect to the
Merger or the employment and consulting agreements, and it does not, at this
time, seek injunctive relief relative to the Merger, although Messrs. Gorn, Gorn
and Colvin claim to have reserved their purported rights to assert such claims
and seek such relief at a later time. The Company believes that it and the
Company's officers and Directors have meritorious defenses to the allegations
made in the Maryland complaint and intends to contest the lawsuit vigorously.
ACCOUNTING TREATMENT
The Merger will be accounted for by the Parent under the "purchase" method
of accounting in accordance with generally accepted accounting principles.
64
<PAGE>
THE MERGER
The following is a summary of all material provisions of the Merger
Agreement. The following summary does not purport to be complete and is
qualified in its entirety by reference to the Merger Agreement which is attached
as Appendix A to this Proxy Statement and is incorporated herein by reference.
Stockholders are urged to read the Merger Agreement in its entirety and to
consider it carefully.
THE MERGER
The Merger Agreement provides for the merger of the Acquiror with and into
the Company, in which event the Company will be the Surviving Company and will
continue its corporate existence under the laws of the State of Delaware. The
Merger Agreement also permits the Parent to elect to use the Alternative Merger
structure, in which event the Company will be merged with and into the Parent,
with the Parent as the Surviving Company, and the separate corporate existence
of the Company will cease. In either structure,
(i) the effects on the Nonaffiliated Stockholders will be identical, other
than the tax treatment of certain foreign Stockholders, and
(ii) the Surviving Company will possess all the rights, privileges,
immunities, powers and purposes of the Company and will assume and
become liable for all liabilities and obligations of the Company.
MERGER CONSIDERATION
In the Merger, except for shares held by Dissenting Stockholders (as defined
in "--Appraisal Rights"), each outstanding share of Common Stock held by a
Nonaffiliated Stockholder, will be converted, by virtue of the Merger and
without any action on the part of the Stockholders, into the right to receive
$12.25 in cash per share and each outstanding share of Preferred Stock will be
converted, by virtue of the Merger and without any action on the part of the
Stockholders, into the right to receive $28.75, together with 115% of any
Accrued Dividends (as defined in the Certificate of Designation of the Preferred
Stock), in cash per share. The Merger Consideration payable to the holders of
Common Stock was determined as the result of arm's-length negotiations between
the Special Committee and the Parent. See "Special Factors--Background of the
Merger," "--Purpose and Structure of the Merger," "--Recommendation of the
Special Committee and the Board of Directors; Fairness of the Merger" and
"--Opinions of the Financial Advisors."
CLOSING DATE AND EFFECTIVE TIME
The Closing will take place at 10:00 a.m., local time in Boston,
Massachusetts, on the Satisfaction Date, which is the first business day to
occur on or after the day which is the later of:
- the tenth calendar day following satisfaction (or waiver by the parties
entitled to the benefit thereof) of the conditions (other than those
incapable of being satisfied until the Closing Date) set forth in the
Merger Agreement; and
- October 15, 1999,
unless another date is agreed to in writing by the parties.
The Parent may unilaterally elect to extend the Closing Date to any business
day on or prior to December 29, 1999 by delivering written notice of its
determination to exercise the Extension Option to the Company. If the
Satisfaction Date has occurred and the Closing Date is so extended, any
conditions to the Parent's and Acquiror's obligations to consummate the Merger
will not be required to be satisfied at any time after the Satisfaction Date,
with the exception of certain conditions which are
65
<PAGE>
incapable of being satisfied prior to the Closing Date. The Parent does not
currently intend to exercise the Extension Option.
A Certificate of Merger will be filed with the Secretary of State of the
State of Delaware on the Closing Date. The Effective Time will be the time that
the Certificate of Merger is filed with the Secretary of State of the State of
Delaware, or at such other time as the Acquiror and the Company agree should be
specified in the Certificate of Merger (not to exceed 30 days after the
Certificate of Merger is filed with the Secretary of State of the State of
Delaware).
EXCHANGE AND PAYMENT PROCEDURES
Promptly after the Effective Time, the Surviving Company will cause a paying
agent appointed by the Acquiror and reasonably acceptable to the Company (the
"Paying Agent") to mail to each Nonaffiliated Stockholder who is a record holder
of certificates representing outstanding shares of Common Stock or Preferred
Stock immediately prior to the Effective Time, a letter of transmittal and
instructions for use in effecting the surrender of such certificates in exchange
for the Merger Consideration. Upon surrender to the Paying Agent of a
certificate for cancellation representing shares of Common Stock or Preferred
Stock other than shares held by a Dissenting Stockholder, together with such
letter of transmittal, duly executed and completed in accordance with the
instructions thereto, and such other documents as may reasonably be required by
the Paying Agent, the holder of such certificate will be entitled to receive, in
exchange therefor, the applicable Merger Consideration and the certificate so
surrendered will be cancelled immediately thereafter. No interest will be paid
or will accrue on the Merger Consideration upon the surrender of any
certificate. Until surrendered in accordance with the foregoing instructions,
each certificate representing shares of Common Stock or Preferred Stock will
represent for all purposes only the right to receive the Merger Consideration
(without interest).
STOCKHOLDERS SHOULD NOT SEND THEIR COMMON STOCK OR PREFERRED STOCK
CERTIFICATES NOW; THEY SHOULD SEND THEM ONLY PURSUANT TO INSTRUCTIONS SET FORTH
IN LETTERS OF TRANSMITTAL TO BE MAILED TO STOCKHOLDERS AS SOON AS PRACTICABLE
AFTER THE EFFECTIVE TIME. IN ALL CASES, THE MERGER CONSIDERATION WILL BE
PROVIDED ONLY IN ACCORDANCE WITH THE PROCEDURES SET FORTH IN THIS PROXY
STATEMENT, THE MERGER AGREEMENT AND SUCH LETTERS OF TRANSMITTAL.
The Company, the Parent and the Acquiror strongly recommend that
certificates representing shares of Common Stock and Preferred Stock and letters
of transmittal be transmitted only by registered United States mail, return
receipt requested, appropriately insured. Stockholders whose certificates are
lost will be required, at the holder's expense, to furnish a lost certificate
affidavit and bond acceptable in form and substance to the Paying Agent.
Any Merger Consideration delivered to the Paying Agent that remains
unclaimed by Stockholders for 12 months after the Effective Time will be
delivered by the Paying Agent to the Surviving Company, upon demand, and any
Stockholders who have not theretofore made an exchange must thereafter look only
to the Surviving Company for payment of their claim for Merger Consideration.
TRANSFER OF COMMON STOCK AND PREFERRED STOCK
No transfer of Common Stock or Preferred Stock will be made on the stock
transfer books of the Company after the Effective Time. If, at or after the
Effective Time, certificates of Common Stock or Preferred Stock are presented,
they will be canceled and exchanged for the right to receive the Merger
Consideration, as provided in "--Exchange and Payment Procedures."
66
<PAGE>
ADDITIONAL AGREEMENTS
The Company, the Parent and the Acquiror have agreed in the Merger Agreement
to promptly prepare and file with the Commission this Proxy Statement and a
Transaction Statement on Schedule 13E-3 (the "Schedule 13E-3") and otherwise use
all reasonable efforts to cause this Proxy Statement to be mailed to the
Stockholders at the earliest practicable date. The Company, the Parent and the
Acquiror have agreed to cooperate with each other and use their reasonable best
efforts to take or cause to be taken all actions, and do or cause to be done all
things, necessary, proper or appropriate to consummate and make effective the
Merger and the other transactions contemplated by the Merger Agreement.
The Merger Agreement provides that the Company will:
- as soon as practicable, call and convene the Special Meeting for the
purpose of obtaining the required Stockholder approvals; and
- through the Company's Board of Directors, recommend to the Stockholders
that they approve the Merger Proposal and will not withdraw, modify or
change such recommendation, or recommend any other offer or proposal, at
any time prior to the conclusion of the Special Meeting.
Notwithstanding the foregoing, the Board of Directors may at any time prior
to the Effective Time withdraw or modify its approval or recommendation
regarding the Merger or the Merger Agreement, or recommend any other offer or
proposal, if such offer or proposal is a Superior Acquisition Proposal.
The Merger Agreement provides that each of the Company, the Parent and the
Acquiror will, prior to the Effective Time, (i) afford representatives of the
other party reasonable access to its and its subsidiaries' properties, books,
contracts, commitments, personnel and records; and (ii) furnish promptly to the
other party all information concerning its and its subsidiaries' business,
properties and personnel as such other party may reasonably request.
Except (i) in connection with a Superior Acquisition Proposal and (ii) if
the Board of Directors determines in good faith that such action is required for
the Board of Directors to comply with its duties to Stockholders imposed by law,
and subject to a notice requirement by the Company to the Acquiror, the Merger
Agreement provides that the Company will not:
- initiate, solicit or knowingly encourage, directly or indirectly, any
inquiries or the making or implementation of any proposal or offer with
respect to a merger, acquisition, tender offer, exchange offer,
consolidation, sale of assets or similar transaction involving all or any
significant portion of the Company's or any of its subsidiaries' assets or
equity securities (any such proposal or offer, an "Acquisition Proposal");
- engage in any negotiations concerning or provide any confidential
information or data to, or have any discussions with, any person or entity
relating to an Acquisition Proposal; or
- otherwise facilitate any effort to attempt to make or implement an
Acquisition Proposal.
In addition, the Merger Agreement requires the Company to:
- direct and use its best efforts to cause its officers, directors,
employees, agents or financial advisors not to engage in any of the
activities set forth above;
- cease and cause to be terminated any activities, discussions or
negotiations with any parties conducted before the execution of the Merger
Agreement with respect to any of the activities set forth above; and
67
<PAGE>
- notify the Acquiror promptly if the Company receives any such inquiries or
proposals or any requests for such information or if any such negotiations
or discussions are sought to be initiated or continued with it.
CONDUCT OF BUSINESS PENDING THE MERGER
Pursuant to the Merger Agreement, from April 13, 1999 through the Effective
Time, except as consented to in writing by the Acquiror or as contemplated by
the Merger Agreement, the Company and its subsidiaries, including the Operating
Partnership, must conduct their respective businesses in the usual, regular and
ordinary course and in substantially the same manner as such businesses were
conducted prior to the execution of the Merger Agreement and take all action
necessary to continue to qualify as a REIT. The Company must also use its
reasonable efforts to preserve intact its present business organizations and
goodwill, keep available the services of its officers and key employees and keep
intact the relationship with its customers, tenants, suppliers and others having
business dealings with the Company and its subsidiaries.
In addition, the Company generally must, and must cause each of its
subsidiaries to:
- confer on a regular basis with one or more representatives of the Acquiror
to report operational matters of materiality and any proposals to engage
in material transactions;
- promptly notify the Acquiror of any material emergency or other material
adverse change in the condition (financial or otherwise), business,
properties, assets, liabilities or the normal course of its business or in
the operation of its properties, or of any material governmental
complaints, investigations or hearings (or communications indicating that
the same may be contemplated);
- promptly deliver to the Acquiror true and correct copies of any report,
statement or schedule to be filed with the Commission after April 13, 1999
and prior to the Effective Time;
- maintain its books and records in accordance with generally accepted
accounting principles ("GAAP") consistently applied and not change in any
material manner any of its methods, principles or practices of accounting,
except as may be required by the Commission, applicable law or GAAP;
- duly and timely file all material tax returns and other documents required
to be filed with federal, state, local and other tax authorities;
- not make or rescind any material express or deemed election relative to
taxes (unless required by law or necessary to preserve the Company's
status as a REIT or the status of any of the Company's subsidiaries as a
partnership for federal tax purposes or as a qualified REIT subsidiary) or
settle or compromise any material tax liability;
- not acquire, enter into any option to acquire, or exercise an option or
contract to acquire, additional real property, incur additional
indebtedness (except for working capital under its revolving lines of
credit), encumber assets or commence construction of, or enter into any
agreement or commitment to develop or construct, other real estate
projects, except with respect to the construction of the multi-family
residential projects under development and in existence on the date of the
Merger Agreement and previously disclosed to the Acquiror;
- except as contemplated by the Merger Agreement, not amend the Company's
Certificate of Incorporation or By-Laws, or the organizational documents
of any of the Company's subsidiaries;
68
<PAGE>
- make no change in the number of its shares of capital stock, membership
interests or units of limited partnership interest (as the case may be)
issued and outstanding or reserved for issuance, other than pursuant to:
-- the exercise of options or other rights contemplated by the Merger
Agreement,
-- the conversion of shares of Preferred Stock, or
-- the conversion or redemption of OP Units for shares of the Company's
Common Stock or cash, at the Operating Partnership's option;
- except as previously disclosed to the Acquiror, not grant any options or
other rights or commitments relating to its shares of capital stock,
membership interests or units of limited partnership interest or any
security convertible into its shares of capital stock, membership
interests or units of limited partnership interest, or any security the
value of which is measured by shares of capital stock, or any security
subordinated to the claim of its general creditors and, except as
contemplated by the Merger Agreement, not amend or waive any rights under
any of the qualified or nonqualified options to purchase shares of the
Company's Common Stock granted under the Stock Option Plan or any other
formal or informal arrangement;
- except as described under "Questions and Answers About the Merger--What
will happen to my Common Stock dividends" and "Questions and Answers About
the Merger--What will happen to my Preferred Stock dividends," or in
connection with (1) payment of the exercise price or tax withholding in
connection with equity-based employee benefit plans by the participants
therein, (2) the redemption of shares of Common Stock required by the
Company's Certificate of Incorporation in order to preserve the Company's
REIT status or (3) conversions or redemptions of OP units in accordance
with the terms of the Operating Partnership's partnership agreement, not:
-- authorize, declare, set aside or pay any dividend or make any other
distribution or payment with respect to any shares of Common Stock,
Preferred Stock or OP Units (consequently, no fourth quarter dividend
on Common Stock will be paid if the Effective Time occurs on or before
October 29, 1999 or if the Effective Time occurs after October 29, 1999
for any reason other than the exercise of the Extension Option), or
-- directly or indirectly redeem, purchase or otherwise acquire any shares
of capital stock, membership interests or units of partnership interest
or any option, warrant or right to acquire, or security convertible
into, shares of capital stock, membership interests, or units of
partnership interest;
- not sell, lease, mortgage, subject to any material lien or otherwise
dispose of any of the real properties owned by the Company or its
subsidiaries (except for certain specified properties);
- not sell, lease, mortgage, subject to any material lien or otherwise
dispose of any of its personal property or intangible property, except
sales of equipment which are not material to the Company and its
subsidiaries, taken as a whole, which are made in the ordinary course of
business;
- not make any loans, advances or capital contributions to, or investments
in, any other person or entity, other than loans, advances and capital
contributions to the Company's subsidiaries in existence on the date of
the Merger Agreement;
- not pay, discharge or satisfy any claims, liabilities or obligations
(absolute, accrued, asserted or unasserted, contingent or otherwise) which
are material to the Company and its subsidiaries, taken as a whole, other
than the payment, discharge or satisfaction, in the ordinary course of
business consistent with past practice or in accordance with their terms,
of liabilities reflected or
69
<PAGE>
reserved against in, or contemplated by, the most recent consolidated
financial statements (or the notes thereto) furnished to the Acquiror or
incurred in the ordinary course of business consistent with past practice
(collectively, "Ordinary Course Liabilities"), nor fail to pay any
Ordinary Course Liabilities as they come due consistent with past
practice;
- except as provided in the Merger Agreement, not enter into any commitment,
contractual obligation or transaction for the purchase of any real estate
other than expansion or improvements made in the ordinary course of
business to existing real property;
- not guarantee the indebtedness of another person, enter into any "keep
well" or other agreement to maintain any financial statement condition of
another person or entity or enter into any arrangement having the economic
effect of the foregoing;
- not enter into any contractual obligation with any officer, Director or
affiliate of the Company;
- not increase any compensation or enter into or amend any employment,
severance or other agreement with any of its officers, directors or
employees earning a base salary of more than $100,000 per annum, other
than as required by any contract or employee plan or pursuant to waivers
by employees of benefits under such agreements;
- not adopt any new employee benefit plan or amend, terminate or increase
any existing plans or rights, not grant any additional options, warrants,
rights to acquire stock, stock appreciation rights, phantom stock,
dividend equivalents, performance units or performance stock to any
officer, employee or director, or accelerate vesting with respect to any
grant of the Company's common stock to employees which are subject to any
risk of forfeiture, except for changes which are required by law and
changes which are not more favorable to participants than provision
presently in effect;
- not accept a promissory note in payment of the exercise price payable
under any option to purchase Common Stock;
- not change the ownership of any of its subsidiaries, except changes which
arise as a result of the conversion of OP Units into shares of Common
Stock or cash;
- not enter into or amend or otherwise modify or waive any material rights
under any agreement or arrangement for the executive officers or directors
of the Company or any of its subsidiaries;
- not directly or indirectly or through a subsidiary, merge or consolidate
with, acquire all or substantially all of the assets of, or acquire the
beneficial ownership of a majority of the outstanding capital stock or a
majority of any other equity interest in, any other entity;
- perform all agreements required to be performed by the Company and its
subsidiaries (including Berkshire Apartments, Inc. and the Operating
Partnership) under the Partnership Merger Agreement; and
- not agree, commit or arrange to take any action prohibited by the
covenants set forth above.
REPRESENTATIONS AND WARRANTIES
The material representations and warranties of the Company to the Parent and
the Acquiror contained in the Merger Agreement relate to the following matters:
- the due organization and valid existence of the Company and its
subsidiaries and similar corporate matters;
- the capitalization of the Company and its subsidiaries;
70
<PAGE>
- the due authorization, execution and delivery of the Merger Agreement by
the Company and its binding effect on the Company;
- the lack of required regulatory filings and approvals for the consummation
of the Merger, and the lack of conflicts between the Merger Agreement (and
the transactions contemplated thereby) and the Certificate of
Incorporation or the By-Laws, contracts to which it or its subsidiaries
are parties, or any law, rule, regulation, order or decree applicable to
the Company or its subsidiaries;
- the accuracy of the Company's filings with the Commission and financial
statements;
- the accuracy of the information provided by the Company for inclusion in
this Proxy Statement and the Schedule 13E-3;
- compliance with applicable laws;
- the absence of current litigation or actions pending or threatened in
connection with the Company's business, the Merger or the Merger
Agreement;
- the absence of any undisclosed liabilities;
- the Company's payment of, or provision of adequate reserve for, tax
liabilities, the Company's compliance with tax return filing requirements,
the Company's qualification as a REIT under the Code and the treatment of
the Operating Partnership, and each subsidiary of the Company that is a
partnership, as a partnership for federal income tax purposes;
- employee benefit plans, labor matters, severance and change of control
agreements;
- the ownership of, encumbrances on, and restrictions relating to, the
Company's properties;
- the Company's exposure to environmental liabilities and compliance with
environmental laws;
- the material contracts and indebtedness of the Company and its obligations
thereunder;
- the absence of any event since December 31, 1998 that constitutes a
material adverse change in the Company's business, properties, assets,
financial condition or results of operations;
- the Company's disclosure of all of its material arrangements with its
control persons and affiliates;
- the inapplicability to the Merger of certain provisions of state takeover
law;
- the absence of brokers and finders (other than Lazard, Lehman and
Prudential Securities) engaged by the Company who would be entitled to
payment in connection with the Merger;
- the receipt by the Board of Directors of fairness opinions from Lazard,
Lehman and Prudential Securities;
- the adequacy of the Company's insurance coverage;
- the recommendation of the Board of Directors that Stockholders approve and
adopt the Merger Proposal;
- the lack of any requirement for the Company to register as an investment
company; and
- the truth and accuracy of the representations and warranties of the
Operating Partnership and its general partner in the Partnership Merger
Agreement.
These representations and warranties are subject, in certain cases, to
specified exceptions and qualifications, including certain qualifications as to
material adverse effects on the business, properties, assets, financial
condition or results of operations of the Company and its subsidiaries, taken as
a whole, including the prevention of the ability of the Company, Berkshire
Apartments, Inc. or the Operating Partnership to consummate the transactions
contemplated by the Merger Agreement and the Partnership Merger Agreement.
71
<PAGE>
The Merger Agreement also contains representations and warranties of the
Parent and the Acquiror to the Company, including with respect to the following
matters:
- the due organization and valid existence of the Parent and the Acquiror
and similar corporate matters;
- the due authorization, execution and delivery of the Merger Agreement by
the Parent and the Acquiror and its binding effect on the Parent and the
Acquiror;
- the lack of required regulatory filings and approvals for the consummation
of the Merger, and the lack of conflicts between the Merger Agreement (and
the transactions contemplated thereby) and the organizational documents of
the Parent and the Acquiror, contracts to which they are a party, or any
law, rule, regulation, order or decree applicable to the Parent and the
Acquiror;
- the Acquiror's access to funds sufficient to consummate the transactions
contemplated by the Merger Agreement;
- the accuracy of the information provided by the Parent and the Acquiror or
any of their affiliates for inclusion in this Proxy Statement and the
Schedule 13E-3;
- the absence of brokers and finders (other than Greenhill) entitled to
payment from the Parent or its subsidiaries;
- the solvency of the Surviving Company and the Surviving Operating
Partnership immediately after the Effective Time;
- the absence of any undisclosed liabilities; and
- the truth and accuracy of the representations and warranties of the Parent
and the Acquiror Operating Partnership in the Partnership Merger
Agreement.
These representations and warranties are subject, in certain cases, to
specified exceptions and qualifications, including certain qualifications as to
material adverse effects on the Parent and the Acquiror.
CONDITIONS
The obligations of the Company, the Parent and the Acquiror to consummate
the Merger are subject to the satisfaction at or prior to the Closing Date of
the following conditions:
- the obtaining of the affirmative vote of the holders of a number of shares
of Common Stock and Preferred Stock (voting on an as-converted basis),
voting as a single class, representing a majority of the total number of
outstanding shares of Common Stock (after giving effect to a deemed
conversion of the Preferred Stock) in favor of the Merger Proposal;
- the obtaining of the affirmative vote of the holders of a majority of the
total number of outstanding shares of Preferred Stock approving and
adopting the Merger Proposal;
- there not being in effect any 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, the Partnership Merger or any of the other
transactions contemplated by the Merger Agreement; and
- the expiration or other termination of all applicable waiting periods
under the HSR Act, if any.
72
<PAGE>
There are additional conditions that must be satisfied before the Parent and
the Acquiror are obligated to complete the Merger. These conditions are:
- the representations and warranties the Company made in the Merger
Agreement must be true and correct in all material respects, as of the
date of the Merger Agreement and the Satisfaction Date, except for
representations and warranties that are qualified by their terms as to
materiality, which must be true in all respects;
- the Company must perform in all material respects all obligations required
to be performed by it pursuant to the terms of the Merger Agreement;
- the Parent and the Acquiror must have received tax opinions (as to the
qualification of the Company as a REIT within the meaning of the Code, and
as to the treatment of the Operating Partnership, as a partnership for
federal income tax purposes) from the Company's counsel, Hale and Dorr
LLP, and from the Special Committee's counsel, Baker & Hostetler LLP;
- no material adverse changes to the Company's business may have occurred
since the date of the Merger Agreement; for this purpose, a material
adverse change will be deemed to have occurred if, as a result of a change
of law after the date of the Merger Agreement, there exists at the
Effective Time a material increase in the risk that the Company would not
qualify (at or prior to the Effective Time) as a REIT;
- all necessary third-party consents and waivers, other than those which, if
not obtained, would not individually or in the aggregate have a Buyer
Material Adverse Effect or Seller Material Adverse Effect, must have been
obtained and not subsequently revoked; provided, however, that the failure
to obtain any consent or waiver in connection with any instrument,
obligation or matter disclosed in writing by the Company on or prior to
the date of the Merger Agreement will not constitute a failure of this
condition;
- the Company must convert certain of its subsidiaries into Delaware limited
liability companies or liquidate such subsidiaries;
- the Company must have complied with certain conditions set forth in the
Partnership Merger Agreement; and
- the Partnership Merger must have been consummated.
There are additional conditions that must be satisfied before the Company is
obligated to complete the Merger. These conditions are:
- the representations and warranties the Parent and the Acquiror made in the
Merger Agreement must be true and correct in all material respects, as of
the date of the Merger Agreement and the Satisfaction Date, except for
representations and warranties that are qualified by their terms as to
materiality, which must be true in all respects;
- each of the Parent and the Acquiror must perform in all material respects
all obligations required to be performed by the Parent and the Acquiror,
respectively, pursuant to the terms of the Merger Agreement;
- no change may have occurred since the date of the Merger Agreement in the
business, financial condition or results of operations of the Acquiror and
the Acquiror's subsidiaries, taken as a whole, or the Parent and the
Parent's subsidiaries, taken as a whole, that has had or would reasonably
be expected to have a material adverse effect on the ability of the
Acquiror, the Acquiror Operating Partnership or the Parent to consummate
the transactions contemplated by the Merger Agreement and the Partnership
Merger Agreement;
73
<PAGE>
- the Company must have received a tax opinion from special counsel to the
Acquiror, Paul, Weiss, Rifkind, Wharton & Garrison, to the effect that,
for federal income tax purposes, holders of OP Units who elect to exchange
all of their OP Units for common or preferred units of the Parent pursuant
to the Partnership Merger will recognize no income, gain or loss upon the
exchange;
- all necessary third-party consents and waivers, other than those which, if
not obtained, would not individually or in the aggregate have a Buyer
Material Adverse Effect, a Seller Material Adverse Effect or a Parent
Material Adverse Effect, must have been obtained and not subsequently
revoked; provided, however, that the failure to obtain any consent or
waiver in connection with any instrument, obligation or matter disclosed
in writing by the Company on or prior to the date of the Merger Agreement
will not constitute a failure of this condition;
- the Parent and the Acquiror must have complied with certain conditions set
forth in the Partnership Merger Agreement; and
- the Company and the Operating Partnership must have received an opinion by
a reputable expert firm selected by the Parent and reasonably acceptable
to the Company as to the solvency and adequate capitalization of the
Company and the Operating Partnership immediately before, and of the
Surviving Company and the Surviving Operating Partnership immediately
after, giving effect to the Merger and the Partnership Merger.
Notwithstanding anything to the contrary in the Merger Agreement, none of
the initiation, threat or existence of any legal action of any kind with respect
to the Merger Agreement or the Partnership Merger Agreement or any transaction
contemplated by the Merger Agreement or the Partnership Merger Agreement,
including, without limitation, any action initiated, threatened or maintained by
any Stockholder or holder of OP Units, whether asserting his, her or its
appraisal rights, claims under any federal or state securities law, contract or
tort claims, claims for breach of fiduciary duty or otherwise, will constitute a
failure of the conditions relating to:
- in the case of the Company, representations and warranties, performance of
obligations of the Company, material adverse changes, consents and the
conditions relating to the Partnership Merger; and
- in the case of the Parent and the Acquiror, representations and
warranties, performance of obligations of the Parent and the Acquiror,
material adverse changes, consents and the conditions relating to the
Partnership Merger,
unless that action has resulted in the granting of injunctive relief that
prevents the consummation of the Merger and the other transactions contemplated
by the Merger Agreement and the Partnership Merger Agreement and such injunctive
relief has not been dissolved or vacated.
The mutual conditions can be waived if waiver is legally permitted and both
parties agree. The conditions the Company must meet can be waived by the
Acquiror and the conditions the Parent and the Acquiror must meet can be waived
by the Company. As of the date of this Proxy Statement, the Company has no
present intention, and the Parent and the Acquiror have advised the Company that
they have no present intention, to waive any material conditions to the Merger.
If any material conditions are waived by the Company, the Board of Directors
will, in light of its duties under Delaware law and the federal securities laws,
determine at such time if a resolicitation of Stockholders should be made.
74
<PAGE>
TERMINATION; WITHDRAWAL OF RECOMMENDATIONS
The Merger Agreement may be terminated at any time prior to the Effective
Time, whether before or after approval by the Company's Stockholders as follows:
- by mutual written consent duly authorized by the Parent and the Company's
Board of Directors;
- by the Acquiror or the Parent, upon a breach of any representation,
warranty, covenant, obligation or agreement set forth in the Merger
Agreement on the part of the Company such that certain conditions set
forth in the Merger Agreement are not satisfied or would be incapable of
being satisfied within 30 days after the giving of written notice to the
Company;
- by the Company, upon a breach of any representation, warranty, covenant,
obligation or agreement set forth in the Merger Agreement on the part of
the Acquiror or the Parent, in either case such that certain conditions
set forth in the Merger Agreement are not satisfied or would be incapable
of being satisfied within 30 days after the giving of written notice to
the Acquiror or the Parent;
- by the Acquiror, the Parent or the Company, if any judgment, injunction,
order, decree or action by any governmental entity of competent authority
preventing the consummation of the Merger has become final and
nonappealable;
- by the Acquiror, the Parent or the Company, if the Merger has not been
consummated on or before December 31, 1999, provided that a party may not
terminate the Merger Agreement for this reason if such party shall have
breached in any material respect its representations, warranties or
obligations under the Merger Agreement in any manner that shall have
proximately contributed to the failure of the merger to be consummated on
or before December 31, 1999;
- by either the Company (unless the Company is in breach of its obligations
set forth in the Merger Agreement with respect to this Proxy Statement or
the Special Meeting) or the Acquiror or the Parent if, upon a vote at a
duly held meeting of the Stockholders or any adjournment or postponement
thereof, the Stockholder approval described under "Summary--Voting
Securities and Votes Required" has not been obtained;
- by the Company, prior to the Special Meeting, if the Board of Directors
has withdrawn or modified its approval or recommendation of the Merger or
the Merger Agreement in connection with, or approved or recommended, a
Superior Acquisition Proposal; provided, however, that no such termination
will be effective under circumstances in which a $25,000,000 break-up fee
is payable pursuant to the terms of the Merger Agreement, unless within 15
days after such termination, such break-up fee is paid to the Parent in
full by the Company and the Operating Partnership;
- by the Acquiror or the Parent if:
-- prior to the Special Meeting, the Board of Directors has withdrawn or
modified in any manner adverse to the Acquiror its approval or
recommendation of the Merger or the Merger Agreement, or approved or
recommended any acquisition proposal from a third party, or
-- the Company has entered into a definitive agreement with respect to any
acquisition proposal from a third party;
75
<PAGE>
- by the Company if the Acquiror has not closed the equity funding
contemplated by the Parent Partnership Agreement and the borrowings
contemplated by the terms of either (i) the W/B Debt Commitment Letter or
(ii) the Freddie Mac Commitment Letter:
-- on or prior to the Satisfaction Date; or
-- on or prior to December 29, 1999, if (i) the Parent exercises the
Extension Option, (ii) the conditions relating to the absence of legal
restraints or prohibitions that prevent completion of the Merger have
been satisfied, and (iii) the Company has delivered a written notice to
the Parent and the Acquiror certifying its ability to satisfy the
conditions relating to the conversion of the Company's subsidiaries into
Delaware limited liability companies or the liquidation of such
subsidiaries; and
- by the Parent or the Acquiror, if an acquisition proposal from a third
party that is publicly announced has been commenced or communicated in
writing to the Company and contains a proposal as to price and:
-- the Company has not rejected such proposal within ten business days
after the date of receipt thereof by the Company or after the date its
existence first becomes publicly announced, if sooner, or
-- the Company has failed to confirm the recommendation of the Board of
Directors approving the Merger and adopting the Merger Agreement within
ten business days after being requested by the Acquiror to do so.
TERMINATION FEES AND EXPENSES
In the event the Merger Agreement is terminated for certain of the reasons
described above, the Company and the Operating Partnership will be obligated to
pay the Parent, or the Parent and the Acquiror will be obligated to pay the
Company, on behalf of the Operating Partnership, the holders of Common Stock and
the holders of OP Units:
- a break-up fee in the amount of $25,000,000 (which amount is increased to
$50,000,000 in the event of a payment by the Parent or the Acquiror if the
Parent has previously exercised the Extension Option) (the "Break-Up
Fee"); and/or
- the lesser of the out-of-pocket expenses incurred by the party to which
the payment is to be made in connection with the Merger Agreement and the
transactions contemplated thereby (the "Break-Up Expenses") or certain
fixed amounts.
The payment of the Break-Up Fees and Break-Up Expenses by the Parent and the
Acquiror is secured by the Letter of Credit in the amount of $29,500,000, which
amount will be increased to $54,500,000 if the Extension Option is exercised.
The right to draw on the Letter of Credit is the Company's exclusive remedy
against the Parent and the Acquiror for any and all losses suffered as a result
of the failure of the Merger and the Partnership Merger to be consummated.
76
<PAGE>
The following table summarizes the circumstances in which the Merger
Agreement may be terminated and the payments required to be made in connection
therewith:
<TABLE>
<CAPTION>
EVENT GIVING RISE TO RIGHT TO
TERMINATING PARTY TERMINATE PAYMENT
- ------------------------------------ ------------------------------------ ------------------------------------
<S> <C> <C>
Mutual Written consent of the Company and None
the Parent
The Acquiror or the Parent Willful breach by the Company of any The Company and the Operating
representation or warranty, covenant Partnership pay Break-Up Expenses
or obligation (up to a maximum amount of
$10,500,000) and the Break-Up Fee
Non-willful breach by the Company of The Company and the Operating
any representation, warranty, Partnership pay Break-Up Expenses
covenant or obligation (up to a maximum amount of
$15,000,000), except for a
termination on the basis of a
non-willful breach of certain
environmental representations for
which the Company will not be
required to pay any Break-Up
Expenses
The Company Willful breach by the Acquiror or The Acquiror or the Parent pays
the Parent of any representation, Break-Up Expenses (up to a maximum
warranty, covenant or obligation amount of $4,500,000) and the
Break-Up Fee
Non-willful breach by the Acquiror The Acquiror or the Parent pays
or the Parent of any representation, Break-Up Expenses (up to a maximum
warranty, covenant or obligation amount of $4,500,000)
The Company (unless the Company is The requisite approval of the The Company and the Operating
in breach of its obligations to holders of Common Stock and Partnership pay Break-Up Expenses
mail a proxy statement and hold a Preferred Stock has not been (up to a maximum amount of
meeting of stockholders to obtained at a meeting of $15,000,000)
consider the Merger Agreement), stockholders
the Acquiror or the Parent
The Company The Board of Directors has withdrawn The Company and the Operating
or modified its approval or Partnership pay Break-Up Expenses
recommendation of the Merger in (up to a maximum amount of
connection with, or approved or $10,500,000) and the Break-Up Fee
recommended, a Superior Acquisition
Proposal
</TABLE>
77
<PAGE>
<TABLE>
<CAPTION>
EVENT GIVING RISE TO RIGHT TO
TERMINATING PARTY TERMINATE PAYMENT
- ------------------------------------ ------------------------------------ ------------------------------------
<S> <C> <C>
The Acquiror or the Parent The Board of Directors, prior to the The Company and the Operating
Special Meeting, has withdrawn or Partnership pay Break-Up Expenses
modified in any manner adverse to (up to a maximum amount of
the Acquiror or the Parent its $10,500,000) and the Break-Up Fee
approval or recommendation of the
Merger Agreement or has approved or
recommended any other Acquisition
Proposal, or the Company has entered
into a definitive agreement relating
to any other Acquisition Proposal
The Company The Acquiror has not closed the The Acquiror or the Parent pays
equity funding contemplated by the Break-Up Expenses (up to a maximum
Parent Partnership Agreement or the amount of $4,500,000) and the
borrowings contemplated by either Break-Up Fee
the W/B Debt Commitment Letter or
the Freddie Mac Committment Letter
on or prior to the Satisfaction Date
or, if the Extension Option has been
exercised, on or prior to December
29, 1999
The Acquiror or the Parent (i) Another acquisition proposal has The Company and the Operating
been publicly announced and the Partnership pay Break-Up Expenses
Company has not rejected such (up to a maximum amount of
proposal within ten business days or $10,500,000) and the Break-Up Fee
(ii) the Company has failed to
confirm its recommendation of the
Merger within ten business days of
the Acquiror's request to do so.
Any party Any judgment, injunction, order, No payment unless the subject of the
decree or action of a governmental injunction is a stockholder claim
authority preventing the that was the subject of a bona fide
consummation of the Merger has settlement proposal with respect to
become final and non-appealable. which the Acquiror withheld its
consent after the Company's request
for such consent pursuant to the
terms of the Merger Agreement, in
which event Parent and Acquiror will
pay the Company Break-Up Expenses
(up to a maximum amount of
$4,500,000)
</TABLE>
78
<PAGE>
<TABLE>
<CAPTION>
EVENT GIVING RISE TO RIGHT TO
TERMINATING PARTY TERMINATE PAYMENT
- ------------------------------------ ------------------------------------ ------------------------------------
<S> <C> <C>
Any party (so long as such party is Closing of the Merger has not No payment
not in breach) occurred on or before December 31,
1999
</TABLE>
AMENDMENT AND WAIVER
The Merger Agreement provides that it may be amended in writing by the
parties thereto, by action taken by their respective Boards of Directors or
other governing bodies at any time before or after approval of the Merger
Proposal by the Stockholders and prior to the Effective Time, but, after such
approval, no amendment, modification or supplement may be made which by law
requires further approval by the Stockholders without obtaining such further
approval. The parties have agreed to amend the Merger Agreement in this manner
to the extent required to continue the status of the Company as a REIT.
At any time prior to the Effective Time, the parties to the Merger Agreement
may, to the extent legally allowed:
- extend the time for the performance of any of the obligations or other
acts of the other party;
- waive any inaccuracies in the representations and warranties of any other
party contained in the Merger Agreement or in any document delivered
pursuant to the Merger Agreement; and
- subject to the limitations set forth in the preceding paragraph with
respect to further Stockholder approval, waive compliance with any of the
agreements or conditions contained in the Merger Agreement.
Any agreement on the part of a party to the Merger Agreement to any such
extension or waiver shall be valid only if set forth in a written instrument
signed on behalf of such party.
FINANCING; SOURCE OF FUNDS
The total amount of funds required by the Parent in connection with the
consummation of the Merger is estimated to be approximately $1.0 billion,
including:
- Payment of the Merger Consideration to Nonaffiliated Stockholders in the
amount of approximately $530 million.
- Payment of cash to holders of OP Units (assuming all of such holders,
except Mr. Krupp and his affiliates, elect to receive cash) in the amount
of approximately $50 million (if all of such holders do not so elect, the
amount of cash required will be reduced).
- Repayment of debt in the amount of approximately $394 million.
- Payment in respect of stock options and payment to Directors under the
Directors Plan in the aggregate amount of approximately $2 million.
- Payment of fees and expenses (including debt prepayment fees and financing
fees) in the amount of approximately $44 million.
The amount of funds required by the Parent in connection with the Merger and
the Partnership Merger will be obtained through a combination of equity and debt
financing. The Surviving Operating Partnership will continue to be obligated for
an aggregate of approximately $216 million of outstanding debt.
79
<PAGE>
Equity Commitment. Pursuant to the Parent Partnership Agreement, the
partners of the Parent have agreed to contribute up to an aggregate of
$316,349,295 in equity capital to the Parent on or prior to the Closing Date, as
follows:
- Berkshire LP and Berkshire GP have agreed to cause to be contributed
512,203 shares of Common Stock and 4,904,066 OP Units, which have an
aggregate value based on the $12.25 per share/unit merger consideration of
$66,349,295;
- Whitehall, WXI/BRH Gen-Par, L.L.C., Stone Street Real Estate Fund 1998,
L.P., Bridge Street Real Estate Fund 1998, L.P. and Stone Street WXI/BRH
Corp. (collectively, the "Whitehall Group") have agreed to contribute to
the Parent an aggregate of up to $125 million in cash; and
- BRE/Berkshire LP L.L.C. and BRE/Berkshire GP L.L.C. (collectively, the
"Blackstone Group") have agreed to contribute to the Parent an aggregate
of up to $125 million in cash.
The following summarizes the equity commitments:
EQUITY COMMITMENTS TO PARENT
<TABLE>
<S> <C>
Berkshire LP and Berkshire GP................ $66,349,295 (in Common Stock and OP Units)
Whitehall Group.............................. up to $125,000,000 (1)
Blackstone Group............................. up to $125,000,000 (1)
</TABLE>
- ------------------------
(1) The amount of cash to be contributed by the Whitehall Group and the
Blackstone Group is subject to reduction (i) to the extent the aggregate
cash consideration to be paid in the Partnership Merger is reduced as a
result of holders of OP Units electing to receive interests in the Parent
rather than cash (thereby reducing the total amount of funds required to
consummate the Merger) and (ii) to the extent that the amount of debt
financing obtained with respect to the Merger and the Partnership Merger
reduces the amount of equity needed to consummate the Merger.
In addition, the general partners of the Parent have the ability to require
Berkshire LP, Berkshire GP, the Whitehall Group and the Blackstone Group to
contribute additional cash equity to the Parent.
W/B Debt Commitment. Each of Whitehall and Blackstone has severally agreed,
pursuant to and subject to the terms of the W/B Debt Commitment Letter, to
provide 50% of an aggregate amount of debt financing of up to $755 million, but
in any case not to exceed 75.5% of the sum of:
- the aggregate amount of cash required to consummate the Merger and the
Partnership Merger;
- assumed debt of at least $233 million;
- the value of the equity contributed or deemed contributed to the Parent by
its current partners; and
- all fees and expenses of the Parent and its subsidiaries relating to the
Merger, the Partnership Merger and the transactions contemplated thereby.
The W/B Debt Commitment Letter provides that the loan will have a maturity
date of 12 months from the initial funding. The W/B Debt Commitment Letter
requires that the proceeds be used to finance the cash consideration to be paid
in the Merger and the Partnership Merger, to refinance certain indebtedness of
the Operating Partnership and to fund certain fees and expenses associated with
the Merger and the Partnership Merger.
The funds borrowed pursuant to the W/B Debt Commitment Letter are to be
secured by, among other things, (i) first mortgage liens and title insurance on
58 properties owned by the Operating Partnership, (ii) a pledge by the Parent of
its equity interest in the current general partner of the Operating Partnership
and (iii) a non-recourse guarantee by the partners of the Parent, secured by a
pledge of their respective interests in the Parent.
80
<PAGE>
The W/B Debt Commitment Letter provides for the payment of the following
fees upon the initial funding thereunder: (a) a commitment fee of 1.0% and a
structuring fee of 0.25% of the maximum amount of the commitment and (b) a
takedown fee of 0.50% of the amount borrowed. A repayment fee is due on June 15,
2000 in the amount of 0.50% of the amount of the loan then outstanding, if any.
The W/B Debt Commitment Letter provides for an interest rate equal to the
greater of (1) LIBOR (as defined below under "--Payments" plus 3.75% and (2)
8.65%. The financing commitment provided for in the W/B Debt Commitment Letter
is subject to a number of conditions, including the occurrence of the Merger and
the Partnership Merger by no later than December 31, 1999, the funding by the
current partners of the Parent of the equity commitments set forth in the Parent
Partnership Agreement, the receipt of certain legal opinions and the receipt of
customary mortgage title insurance policies. The W/B Debt Commitment Letter has
been filed with the Commission as an exhibit to the Schedule 13E-3.
The funds to be used by each of the Whitehall Group and the Blackstone Group
to meet its equity contributions and debt commitments described above are
expected to come from capital contributions from its partners or members, as the
case may be, pursuant to existing contractual obligations.
Freddie Mac Debt Commitment. The Parent has entered into the Freddie Mac
Commitment Letter, which provides for up to $708,344,000 in mortgage loans to be
made by the Lender in respect of 57 multifamily properties expected to be owned
by the Parent upon consummation of the Merger (one of which may be acquired by
the Parent after the consummation of the Merger, in which case the loan proceeds
would be reduced as described below). The Parent and the entities that will own
such properties upon consummation of the Merger are referred to collectively in
the Freddie Mac Commitment Letter as the "Borrower." It is anticipated that the
Lender will sell the loans to one or more investors and that the loans will be
guaranteed by the Federal Home Loan Mortgage Corporation ("Freddie Mac").
The Freddie Mac Commitment Letter contemplates that the loans will be
structured into two pools. The first group of loans ("Pool One") is expected to
be in an aggregate maximum amount of $204,631,000, to bear a floating rate of
interest (described below), to have a maturity date of 72 months from the
closing date, and to be secured by 14 specified properties (subject to the right
of the Lender and Freddie Mac to exclude any property not meeting certain
Freddie Mac standards, which exclusion will reduce the aggregate amount of loan
proceeds). The second group of loans ("Pool Two") is expected to be in an
aggregate maximum amount of $503,713,000, to bear a fixed rate of interest
(described below), to have a maturity date of 84 months from the closing date,
and to be secured by 43 specified properties (subject to the right of the Lender
and Freddie Mac to exclude any property not meeting certain Freddie Mac
standards, which exclusion will reduce the aggregate amount of loan proceeds).
One of the properties securing the Pool One loans has not yet been acquired by
the Company and might not be acquired until after the consummation of the
Merger, in which case the loan proceeds available at Closing with respect to the
Pool One loans will be reduced by approximately $23,000,000. If such property is
acquired by the Company before the Closing, $9,000,000 of the approximately
$23,000,000 of loan proceeds will not be available to the Parent until after
certain occupancy and rental levels with respect to the property have been
achieved.
PAYMENTS
The interest rate with respect to the Pool One loans will be an amount equal
to the London Inter-Bank Offer Rate for loans with a 30-day maturity ("LIBOR")
plus 1.405%, and will float with LIBOR during the term of the Pool One loans.
The interest rate with respect to the Pool Two loans will be 7.705% per annum
for the term of the Pool Two loans. In consideration of a reduction in the
interest rate on the Pool Two loans, the Borrower has agreed to pay to the
Lender $10,880,200 at closing.
81
<PAGE>
The Freddie Mac Commitment Letter contemplates that the Borrower will make
monthly payments of principal and interest in respect of the Pool One and Pool
Two loans, calculated on an amortization period of 360 months. The Borrower will
be able to prepay any of the loans within either Pool in full and, under certain
circumstances, in part, prior to their maturity. With respect to a loan in Pool
Two, if the loan is prepaid within the first 78 months of its term, such
prepayment must be made together with an amount (a "yield maintenance premium")
equal to the greater of (i) 1.0% of the unpaid principal balance of the loan and
(ii) an amount based on the difference, if any, between the interest rate on the
Pool Two loans and the yield on U.S. Treasury securities with a comparable
maturity date. The Pool One loans will not be subject to yield maintenance
premiums if repaid prior to maturity.
SECURITY
The Freddie Mac Commitment Letter provides that the Pool One and Pool Two
loans will be secured by, among other things, (i) a first mortgage lien on the
properties, a first priority security interest in the related personalty and an
assignment of related leases, rents, revenues and proceeds and (ii) an
assignment of the Rate Cap Agreements (defined below). Although the loans
generally will be non-recourse to the Parent, the Parent will be required to
provide the Lender with a guaranty with respect to certain matters, including
environmental liabilities and liability for material misrepresentations. In
addition, under certain circumstances, including a voluntary bankruptcy on the
part of the property-owning entity, a loan will become fully recourse to the
Parent. The loans will be cross-collateralized and cross-defaulted within their
respective Pools to the extent permitted under applicable law. Pool One and Pool
Two will not be cross-collateralized or cross-defaulted with each other.
The Freddie Mac Commitment Letter provides for the right of the Borrower to
substitute collateral under certain circumstances and upon the payment of
specified fees, the right of the Borrower to defease one or more loans under
certain circumstances and upon the payment of specified fees, the right of the
Borrower to transfer properties subject to the loans in Pool Two under certain
circumstances and upon the payment of specified fees, the right of the Borrower
to place subordinate Freddie Mac financing on the properties under certain
circumstances and upon the payment of specified fees, and the right of the
Borrower to release a property from the liens securing the loans upon prepayment
of an amount equal to 115% of the outstanding principal balance of the loan
relating to that property.
ADDITIONAL FEES
The Freddie Mac Commitment Letter provides for certain other fees to be paid
by the Borrower, including the following:
- a Pool One transaction fee equal to 1.25% of the aggregate loan amount of
Pool One;
- a Pool Two transaction fee equal to 0.50% of the aggregate loan amount of
Pool Two;
- an origination fee equal to $1,000,000;
- a LIBOR loan fee equal to 0.05% of the aggregate loan amount of Pool One;
and
- an additional origination fee equal to the greater of $375,000 and the
actual origination fee for a proposed separate financing by the Lender of
a property owned by the Company and located in Silver Spring, Maryland
(which additional origination fee will be credited against the origination
fee for the Silver Spring financing if that financing closes).
In addition, the Lender and Freddie Mac have the right to exclude from Pool
One or Pool Two any property that fails to meet certain Freddie Mac standards,
in which case the Borrower is required to pay an exclusion fee, in an amount
determined based on a specified formula, with respect to each
82
<PAGE>
such property. The Borrower is also required to pay all reasonable third party
expenses, fees and charges with respect to the loans, their processing and the
closing thereof and to provide customary indemnification to the Lender. The
Parent and its three general partners will be liable to the Lender for certain
damages and other sums if the financing does not occur at the time and in the
manner contemplated by the Freddie Mac Commitment Letter.
CLOSING
The Freddie Mac Commitment Letter provides that the closing will occur,
subject to the satisfaction of various conditions relating to the properties, on
a mutually agreeable date after September 15, 1999 and on or prior to January 5,
2000, but not during the period from September 16, 1999 through September 30,
1999 or during the period from December 15, 1999 through January 4, 2000, and
subject to the payment of extension fees by the Borrower to the Lender and
Freddie Mac if the financing closes after October 15, 1999 (unless the Lender or
Freddie Mac is solely responsible for the delay). The Freddie Mac Commitment
Letter provides for the following closing extension fees payable to Freddie Mac:
(i) for an extension of the closing past October 15, 1999 until October 29,
1999, a fee equal to $125,000, (ii) for a further extension to November 14,
1999, a fee equal to $200,000, (iii) for a further extension to November 30, a
fee equal to $200,000, (iv) for a further extension to December 14, 1999, a fee
equal to $200,000, and (v) for a further extension to January 5, 2000, a fee
equal to $1,000,000. The Freddie Mac Commitment Letter also provides for payment
to the Lender of an extension fee of 6/32 of 1% of the aggregate Pool Two loan
amount for each 30-day extension past October 15, 1999, which will be prorated
if the closing occurs within a 30-day period.
INTEREST RATE PROTECTION
The Freddie Mac Commitment Letter provides that, on the date the interest
rate for the Pool Two loans is determined (the "Rate Lock Date"), the Borrower
must purchase a three year interest rate cap for the benefit of the Lender (a
"Three Year Cap") to be in place on the date of closing, at not more than 300
basis points over LIBOR on the Rate Lock Date, with a notional amount equal to
the full portion of the aggregate loan amount attributable to Pool One. The
Borrower also is required to purchase on the Rate Lock Date a three year
interest rate cap for the benefit of the Lender (a "4-6 Year Cap") to be in
place upon the expiration of the Three Year Cap for years four through six of
the loan term at not more than 300 basis points over LIBOR on the Rate Lock
Date, for a notional amount equal to one-half of the portion of the aggregate
loan amount attributable to Pool One. The Rate Lock Date was August 5, 1999, and
on such date the Parent purchased the Three-Year Cap and the 4-6 Year Cap.
The Borrower is required to fund an escrow on a monthly basis commencing at
closing in an amount necessary to fund the purchase price of an additional
interest rate cap for the benefit of the Lender (the "Additional Cap") to be in
place upon the expiration of the Three Year Cap for years four through six of
the loan term at not more than 300 basis points over LIBOR on the Rate Lock
Date, with a notional amount equal to the excess of the loan balance
attributable to Pool One loans over the notional amount for the 4-6 Year Cap.
The escrow for the Additional Cap will be adjusted semi-annually to reflect
prepayments of loans in Pool One and changes in the anticipated cost of the
Additional Cap. The counterparty to the agreements relating to the interest rate
caps (the "Rate Cap Agreements") must have a minimum specified credit rating.
The Borrower also is required to fund an escrow to cover annual taxes,
assessments and similar charges, and an escrow to provide for certain specified
property repairs. Under certain circumstances the Borrower may be required to
fund an escrow to cover the costs of certain capital replacements.
TERMINATION
The commitment by the Lender may be terminated by it if
83
<PAGE>
- any material adverse change occurs prior to the closing with respect to
the properties taken as a whole or the credit of the Borrower taken as a
whole;
- any material part of the properties taken as a whole is taken in
condemnation;
- a condemnation proceeding is pending or threatened at the time of closing
with respect to a material part of the properties taken as a whole or;
- any material part of the properties taken as a whole is damaged and not
repaired to the Lender's satisfaction prior to closing.
MISCELLANEOUS
In connection with underwriting the loans that are the subject of the
Freddie Mac Commitment Letter, the Lender engaged Cushman & Wakefield, Inc. and
various of its subsidiaries ("Cushman & Wakefield") to perform appraisals of 60
of the Company's real properties and one property that the Company has
contracted to acquire. The Lender has informed the Parent that these appraisals
reflect an aggregate valuation of these 61 properties of $974,300,000. In
addition, in connection with its analysis of a potential refinancing following
consummation of the Merger, the Parent engaged Cushman & Wakefield to perform
appraisals of the Company's 22 remaining real properties (the "Parent
Appraisal"). The Parent Appraisal reflects an aggregate valuation of
$342,340,000 for these 22 properties. The total of the values of the real
properties set forth in the appraisals obtained by the Lender and in the Parent
Appraisal is $1,316,640,000.
The Parent selected Cushman & Wakefield to prepare the Parent Appraisal
because of its reputation and experience in connection with real estate assets.
The Parent did not consider retaining other appraisal companies. Cushman &
Wakefield was selected on the basis of its national presence, ability to meet
tight reporting deadlines and its previous experience appraising assets within
the Company's portfolio. The Parent imposed no conditions or limitations on the
scope of Cushman & Wakefield's investigation or the methods and procedures to be
followed in preparing the Parent Appraisal. The Parent paid Cushman & Wakefield
$66,000 to prepare the Parent Appraisal.
A summary Parent Appraisal, dated August 12, 1999, which sets forth the
procedures followed by Cushman & Wakefield, the appraised value of each of the
22 properties and the basis for and methods of arriving at the appraised values
is attached hereto as Appendix J. The individual appraisals comprising the
Parent Appraisal will be made available for inspection and copying during
regular business hours at the Parent's principal executive offices (One Beacon
Street, Suite 1500, Boston, Massachusetts 02108) by any Stockholder or a
Stockholder's representative who has been so designated in writing.
The Freddie Mac Commitment Letter has been filed with the Commission as an
exhibit to the Schedule 13E-3. The summary of the Freddie Mac Commitment Letter
set forth in this Proxy Statement does not purport to be complete and is subject
to, and qualified in its entirety by, the full text of the Freddie Mac
Commitment Letter.
The Parent currently expects to borrow funds as contemplated by the Freddie
Mac Commitment Letter concurrently with the consummation of the Merger in lieu
of borrowing funds pursuant to the W/B Debt Commitment Letter. In addition, to
the extent the Company has a positive cash balance at the time of the Merger,
such cash will be available to be used by Parent to finance the Merger. The
Company has contracted to sell seven of its properties for an aggregate net
sales price of approximately $59 million. In addition, the Parent expects to
refinance one property owned by the Company and incur additional mortgage debt
on five properties owned by the Company, concurrently with or shortly after the
Closing; if consummated, these financings are expected to provide an aggregate
of approximately $63 million of loan proceeds to the Parent, or approximately
$29 million of net proceeds after repayment of existing debt on the property
being refinanced. Obtaining financing for the Merger is not a condition to the
obligations of the Parent or the Acquiror under the Merger Agreement or the
Partnership Merger Agreement.
84
<PAGE>
APPRAISAL RIGHTS
If the Merger is consummated, Stockholders who do not vote for approval and
adoption of the Merger Proposal, who hold shares of Common Stock or Preferred
Stock of record on the date of making a written demand for appraisal as
described below and who otherwise comply fully with Section 262 of the DGCL
("Section 262") will be entitled to a judicial determination of the fair value
of their shares of Common Stock and Preferred Stock in accordance with the
provisions of Section 262 and to receive from the Surviving Company payment of
such fair value in cash together with a fair rate of interest, if any, as
determined by such court. Stockholders who properly perfect their appraisal
rights will not be entitled to surrender their shares of Common Stock and
Preferred Stock for payment in the manner provided in the Merger Agreement and
described in this Proxy Statement.
Under Section 262, where a merger agreement is to be submitted for approval
and adoption at a meeting of stockholders, as in the case of the Special
Meeting, not less than 20 calendar days prior to the meeting, a constituent
corporation in the merger must notify each of the holders of its stock who was
such on the record date for the meeting that such appraisal rights are available
and include in each such notice a copy of Section 262. This Proxy Statement
constitutes such notice to the holders of record of the Common Stock and
Preferred Stock.
The following is a summary of the procedures to be followed under Section
262, the full text of which is attached as Appendix E to this Proxy Statement.
The summary does not purport to be a complete statement of, and is qualified in
its entirety by reference to, Section 262 and to any applicable amendments to
such section after the date of this Proxy Statement. Failure to follow any
Section 262 procedures may result in the loss of appraisal rights under Section
262. Stockholders should assume that the Surviving Company will take no action
to perfect any appraisal rights of any Stockholder. Any Stockholder who desires
to exercise his or her appraisal rights should review carefully Section 262 and
is urged to consult his or her legal advisor before electing or attempting to
exercise such rights.
Holders of record of shares of Common Stock or Preferred Stock who desire to
exercise their appraisal rights must not vote in favor of the Merger Proposal
and must deliver a separate written demand for appraisal of such shares to the
Company prior to the taking of the vote on the Merger Proposal. In addition, a
holder of shares of Common Stock or Preferred Stock wishing to exercise
appraisal rights must hold of record such shares on the date the written demand
for appraisal is made and must continue to hold such shares through the
Effective Time. The demand for appraisal will be sufficient if it reasonably
informs the Company of the identity of the Stockholder and that the Stockholder
intends to demand an appraisal of the fair value of his, her or its shares of
Common Stock or Preferred Stock.
If the shares are owned of record in a fiduciary capacity, such as by a
trustee, guardian or custodian, the demand must be executed by or for the record
owner, and if the shares are owned of record by more than one person, as in a
joint tenancy or tenancy in common, the demand must be made by or for all owners
of record. An authorized agent, including an agent for one or more joint owners,
may execute the demand for appraisal for a holder of record; however, such agent
must identify the record owner or owners and expressly disclose in such demand
that the agent is acting as agent for the record owner or owners of such shares.
A record holder, such as a broker, who holds shares of Common Stock or
Preferred Stock as a nominee for beneficial owners, some or all of whom desire
to demand appraisal, must exercise appraisal rights on behalf of such beneficial
owners with respect to the shares held for such beneficial owners. In such case,
the written demand for appraisal should set forth the number of shares covered
by such demand. Unless a demand for appraisal specifies a number of shares, the
demand will be presumed to cover all shares outstanding in the name of such
record owner. If a Stockholder holds shares of Common Stock or Preferred Stock
through a broker who in turn holds the shares through a central securities
depository nominee such as Cede & Co., a demand for appraisal of such shares
must
85
<PAGE>
be made by or on behalf of the depository nominee and must identify the
depository nominee as record holder. BENEFICIAL OWNERS WHO ARE NOT RECORD OWNERS
AND WHO INTEND TO EXERCISE APPRAISAL RIGHTS SHOULD INSTRUCT THE RECORD OWNER TO
COMPLY STRICTLY WITH THE STATUTORY REQUIREMENTS WITH RESPECT TO THE DELIVERY OF
WRITTEN DEMAND FOR APPRAISAL. A DEMAND FOR APPRAISAL SUBMITTED BY A BENEFICIAL
OWNER WHO IS NOT THE RECORD OWNER WILL NOT BE HONORED.
A proxy or vote against the Merger Agreement will not constitute a demand
for appraisal. Stockholders should not expect to receive any additional notice
with respect to the deadline for demanding appraisal rights.
Any Stockholder who elects to exercise appraisal rights must mail or deliver
the written demand for appraisal to Berkshire Realty Company, Inc., One Beacon
Street, Suite 1550, Boston, Massachusetts 02108, Attention: Scott D. Spelfogel,
Secretary.
If the Merger is approved, then within ten days after the Effective Time,
the Surviving Company will provide notice of the Effective Time to all
Stockholders who have complied with Section 262.
A Stockholder may withdraw his or her demand for appraisal within 60 days
after the Effective Time of the Merger and accept the terms of the Merger.
Thereafter, the approval of the Surviving Company will be needed for such a
withdrawal.
Within 120 days after the Effective Time (the "120-Day Period"), in
compliance with Section 262, any Stockholder who has properly demanded an
appraisal and who has not withdrawn his or her demand as provided above (such
Stockholders being referred to collectively as the "Dissenting Stockholders")
and the Surviving Company each has the right to file in the Delaware Court of
Chancery (the "Delaware Court") a petition (the "Petition"), with a copy served
on the Surviving Company in the case of a Petition filed by a Dissenting
Stockholder, demanding a determination of the fair value of the shares held by
all of the Dissenting Stockholders. If, within the 120-Day Period, no Petition
shall have been filed as provided above, all rights to appraisal will cease and
all of the Dissenting Stockholders who owned shares of Common Stock or Preferred
Stock will become entitled to receive for each share of Common Stock or
Preferred Stock the applicable Merger Consideration, as if such Stockholder had
initially voted to approve and adopt the Merger Proposal. The Surviving Company
is not obligated and does not currently intend to file such a Petition.
Any Dissenting Stockholder is entitled, within the 120-Day Period and upon
written request to the Surviving Company, to receive from the Surviving Company
a statement setting forth (a) the aggregate number of shares of Common Stock or
Preferred Stock which have not voted to adopt and approve the Merger Proposal
and with respect to which demands for appraisal have been received and (b) the
aggregate number of Dissenting Stockholders. Such statement must be mailed (i)
within ten days after a written request therefor has been received by the
Surviving Company, or (ii) within ten days after the expiration of the period
for the delivery of demands, as described above, whichever is later.
Upon the filing of a Petition, the Delaware Court may order a hearing and
that notice of the time and place fixed for the hearing on the Petition be
mailed to the Surviving Company and all of the Dissenting Stockholders. Notice
will also be published at least one week before the day of the hearing in a
newspaper of general circulation published in the City of Wilmington, Delaware
or in another publication deemed advisable by the Delaware Court. The costs
relating to these notices will be borne by the Surviving Company.
If a hearing on the Petition is held, the Delaware Court is empowered to
determine which Dissenting Stockholders have complied with the provisions of
Section 262 and are entitled to an appraisal of their shares. The Delaware Court
may require that Dissenting Stockholders submit their share certificates for
notation thereon of the pendency of the appraisal proceedings and the Delaware
Court may dismiss the proceedings as to any Dissenting Stockholder who does not
comply with such requirement.
86
<PAGE>
The Delaware Court will appraise shares of Common Stock and Preferred Stock
owned by the Dissenting Stockholders, determining the fair value of such shares
exclusive of any element of value arising from the accomplishment or expectation
of the Merger. In determining the fair value, the Delaware Court is to take into
account all relevant factors. In WEINBERGER V. UOP, INC., the Delaware Supreme
Court discussed the factors that could be considered in determining fair value
in an appraisal proceeding, stating that "proof of value by any techniques or
methods which are generally considered acceptable in the financial community and
otherwise admissible in court" should be considered and that "[f]air" price
obviously requires consideration of all relevant factors involving the value of
a company. The Delaware Supreme Court has stated, that in making this
determination of fair value, the court must consider market value, asset value,
dividends, earnings prospects, the nature of the enterprise and any other
factors which could be ascertained as of the date of the merger and which "throw
any light on future prospects of the merged corporation." The Delaware Supreme
Court noted that Section 262 provides that fair value is to be determined
"exclusive of any element of value arising from the accomplishment or
expectation of the merger." In CEDE & CO. V. TECHNICOLOR, INC., the Delaware
Supreme Court stated that such exclusion is a "narrow exclusion [that] does not
encompass known elements of value" but which rather applies only to the
speculative elements of value arising from such accomplishment or expectation.
In WEINBERGER, the Delaware Supreme Court held that "elements of future value,
including the nature of the enterprise, which are known or susceptible of proof
as of the date of the merger and not the product of speculation, may be
considered."
Stockholders considering seeking appraisal should have in mind that the fair
value of their shares determined by the Delaware Court under Section 262 could
be more than, the same as, or less than the consideration payable pursuant to
the Merger Agreement. Moreover, the Surviving Company does not anticipate
offering more than the consideration payable pursuant to the Merger Agreement to
any Dissenting Stockholder and reserves the right to assert in any appraisal
proceedings, that, for purposes of Section 262, the "fair value" of a share of
Common Stock or Preferred Stock is less than the consideration payable pursuant
to the Merger Agreement.
The Delaware Court may also (i) determine a fair rate of interest, if any,
to be paid to Dissenting Stockholders in addition to the fair value of the
shares, (ii) determine the costs of the proceeding and tax such costs against
the parties as the Delaware Court deems equitable (however, costs do not include
attorneys' and expert witnesses' fees) and (iii) upon application of a
Dissenting Stockholder, order all or a portion of the expenses incurred by any
Dissenting Stockholder in connection with the appraisal proceeding, including,
without limitation, reasonable attorney's fees and fees and expenses of experts,
to be charged PRO RATA against the value of all shares entitled to appraisal.
No appraisal proceedings in the Delaware Court will be dismissed as to any
Dissenting Stockholder without the approval of the Delaware Court, and this
approval may be conditioned upon terms which the Delaware Court deems just.
From and after the Effective Time, Dissenting Stockholders will not be
entitled to vote (or consent by written action) any shares subject to demand for
appraisal for any purpose and will not be entitled to receive payment of
dividends or other distributions in respect of such shares, except for dividends
or other distributions payable to Stockholders of record at a date prior to the
Effective Time.
Failure to take any required step in connection with appraisal rights may
result in the loss of such rights. Any Stockholder who loses such rights will
only be entitled to receive the Merger Consideration.
87
<PAGE>
FEES AND EXPENSES
The estimated aggregate costs and fees of the Company on the one hand, and
the Parent and the Acquiror on the other hand, in connection with the Merger and
related transactions are as follows:
<TABLE>
<CAPTION>
OBLIGATIONS OF
OBLIGATIONS OF THE
THE PARENT
COMPANY AND THE ACQUIROR
---------------- ----------------
<S> <C> <C>
Investment Banking Fees and Expenses......................................... $ 6,000,000 $ 4,940,000
Filing Fees.................................................................. 107,000 --
Legal, Due Diligence and Accounting Fees and Expenses........................ 3,000,000 6,000,000
Board of Directors Fees and Expenses......................................... 75,000 --
Prepayment Fees and Financing Fees........................................... -- 30,900,000
Printing, Mailing and Vote Solicitation Fees................................. 1,000,000 --
Miscellaneous Fees and Expenses.............................................. 1,500,000 2,450,000
---------------- ----------------
Total...................................................................... $ 11,682,000 $ 44,290,000
</TABLE>
The Merger Agreement calls for such fees and expenses to be paid by the
party which incurred them, except that the Company on the one hand, and the
Parent and the Acquiror on the other hand, may be required to pay Break-Up
Expenses and/or Break-Up Fees. See "--Termination Fees and Expenses."
REGULATORY REQUIREMENTS
Except for the filing of the Certificate of Merger with the Secretary of
State of the State of Delaware pursuant to the DGCL and, after the approval and
adoption of the Merger Proposal by the Stockholders, the filing of any required
transfer tax returns or related documents and compliance with federal and state
securities laws, none of the Company, the Acquiror or the Parent is aware of any
material United States federal or state or foreign governmental regulatory
requirement necessary to be complied with or approval that must be obtained in
connection with the Merger.
88
<PAGE>
SELECTED FINANCIAL DATA OF THE COMPANY
The following table sets forth selected financial information regarding the
Company's results of operations and financial position. This information should
be read in conjunction with the Consolidated Financial Statements and Notes
thereto and other financial information included or incorporated by reference
herein.
The historical financial data as of and for the quarters ended June 30, 1999
and 1998 have been derived from the unaudited financial statements included in
the Company's Quarterly Report on Form 10-Q for the quarters ended June 30, 1999
and 1998, respectively. The historical financial data for the years ended
December 31, 1998, 1997, 1996, 1995 and 1994 have been derived from audited
financial statements included in the Company's Annual Report on Form 10-K for
the year ended December 31, 1998, as amended by Annual Report on Form 10-K/A.
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
SELECTED FINANCIAL DATA
(DOLLARS IN THOUSANDS, EXCEPT NUMBER OF APARTMENT UNITS,
SHARES OUTSTANDING AND PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
FOR QUARTERS
ENDED JUNE 30 FOR YEARS ENDED DECEMBER 31,
------------------------- ------------------------------------------------------
1999 1998 1998 1997 1996 1995
----------- ------------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
(UNAUDITED)
OPERATING DATA:
Rental revenue.......................... $ 97,994 $ 81,633 $ 175,965 $ 109,974 $ 89,451 $ 70,068
Total revenue........................... 100,955 85,127 182,785 115,499 93,002 74,441
Property operating expenses, including
property management fees.............. 43,078 35,811 77,611 50,221 42,353 33,347
Depreciation and amortization........... 35,831 32,643 70,827 43,315 30,172 21,984
Provision for losses on real estate
assets................................ -- -- -- 1,850 7,500 --
General and administrative.............. 2,881 3,365 6,360 5,744 4,254 1,356
Interest................................ 22,473 17,167 38,801 24,006 20,501 15,618
Non-recurring charges................... 4,572 -- 1,470 -- 442 1,728
Income (loss) from operations before
joint venture income (loss), gains on
sales of assets, gains on payoff of
mortgage loans, minority interest and
extraordinary items................... (7,881) (3,859) (12,285) (12,037) (12,612) (1,157)
Joint venture income (loss)............. -- 132 132 (4,910) (3,009) 1,407
Gains on sales of real estate assets.... 196 1,387 1,265 6,455 58 15,603 4,069
Minority interest in Operating
Partnership........................... 2,281 1,023 3,370 2,154 1,403 (167)
Extraordinary items, net................ -- (95) (478) (90) (149) (901)
Net income (loss)....................... $ (5,404) $ (1,411) $ (7,995) $ (8,429) $ (14,308) $ 14,786
Income allocated to preferred
shareholders.......................... $ (3,079) $ (3,096) $ (6,158) $ (1,659) $ -- $ --
Net income (loss) allocated to common
shareholders.......................... $ (8,483) $ (4,507) $ (14,154) $ (10,088) $ (14,308) $ 14,786
PER COMMON SHARE DATA:
Net income (loss)(basic and diluted).... $ (.23) $ (.12) $ (.39) $ (.37) $ (.56) $ (.58)
Dividends paid.......................... $ .49 $ .48 $ .96 $ .92 $ .90 $ .89
Weighted average common shares
outstanding........................... 36,730,987 36,677,369 36,684,985 27,099,522 25,393,147 25,392,621
Weighted average preferred shares
outstanding........................... 2,737,000 2,737,000 2,737,000 727,367 -- --
<CAPTION>
1994
------------
<S> <C>
OPERATING DATA:
Rental revenue.......................... $ 63,222
Total revenue........................... 68,470
Property operating expenses, including
property management fees.............. 31,826
Depreciation and amortization........... 19,507
Provision for losses on real estate
assets................................ --
General and administrative.............. 2,044
Interest................................ 10,794
Non-recurring charges................... 2,555
Income (loss) from operations before
joint venture income (loss), gains on
sales of assets, gains on payoff of
mortgage loans, minority interest and
extraordinary items................... 510
Joint venture income (loss)............. 1,178
Gains on sales of real estate assets....
Minority interest in Operating
Partnership........................... --
Extraordinary items, net................ --
Net income (loss)....................... $ 5,757
Income allocated to preferred
shareholders.......................... $ --
Net income (loss) allocated to common
shareholders.......................... $ 5,757
PER COMMON SHARE DATA:
Net income (loss)(basic and diluted).... $ (.23)
Dividends paid.......................... .86
Weighted average common shares
outstanding........................... 25,391,478
Weighted average preferred shares
outstanding........................... --
</TABLE>
89
<PAGE>
<TABLE>
<CAPTION>
FOR QUARTERS
ENDED JUNE 30 FOR YEARS ENDED DECEMBER 31,
------------------------- ------------------------------------------------------
1999 1998 1998 1997 1996 1995
----------- ------------ ------------ ------------ ------------ ------------
(UNAUDITED)
<S> <C> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Total assets............................ $ 1,014,756 $ 956,790 $ 1,008,907 $ 846,420 $ 569,670 $ 486,968
Real estate, excluding joint ventures,
before accumulated depreciation....... $ 1,152,511 $ 1,014,971 $ 1,105,996 $ 880,652 $ 585,795 $ 465,846
Long-term fixed rate obligations........ $ 411,841 $ 375,576 $ 413,953 $ 362,762 $ 206,837 $ 155,201
Shareholders' equity.................... $ 306,515 $ 349,226 $ 333,018 $ 368,195 $ 223,654 $ 260,788
Common shares outstanding............... 36,754,752 36,745,714 36,713,400 36,334,601 25,393,368 25,392,951
Book value per common share............. $ 6.48 $ 7.64 $ 7.21 $ 8.25 $ 8.81 $ 10.27
Other Information:
Funds from Operations ("FFO")(1)........ $ 29,292 $ 25,648 $ 53,644 $ 36,061 $ 28,939 $ 26,031
Ratio of earnings to fixed charges and
preferred dividends(2)................ .651 .747 .675 .594 .302 1.924
Apartment units owned, end of period.... 24,387 22,751 24,123 18,773 12,435 9,433
<CAPTION>
1994
------------
<S> <C>
BALANCE SHEET DATA:
Total assets............................ $ 458,207
Real estate, excluding joint ventures,
before accumulated depreciation....... $ 448,058
Long-term fixed rate obligations........ $ 88,279
Shareholders' equity.................... $ 268,591
Common shares outstanding............... 25,391,426
Book value per common share............. $ 10.58
Other Information:
Funds from Operations ("FFO")(1)........ $ 25,707
Ratio of earnings to fixed charges and
preferred dividends(2)................ 1.481
Apartment units owned, end of period.... 9,385
</TABLE>
- ------------------------------
(1) Management and industry analysts generally consider Funds from Operations
(or FFO), to be an appropriate measure of the performance of an equity REIT,
along with net income and cash flows from operating activities, financing
activities and investing activities. However, FFO should not be considered
as a substitute to net income as an indicator of the Company's operating
performance or to cash flows as a measure of liquidity. The Company believes
that in order to facilitate a clear understanding of the operating results
of the Company, FFO should be analyzed in conjunction with net income (loss)
as presented in the consolidated financial statements and information
presented elsewhere. See "Financial Statements." FFO is determined in
accordance with a resolution adopted by the Board of Governors of the
National Association of Real Estate Investment Trusts (NAREIT), and is
defined as net income (loss) (computed in accordance with generally accepted
accounting principles), excluding gains (or losses) from debt restructuring
and sales of property, plus depreciation and amortization on real estate
assets, and after adjustments for unconsolidated partnerships and joint
ventures. The methodology used by the Company when calculating FFO may
differ from that of other equity REITs and, therefore, may not be comparable
to such other REITs. In addition, FFO does not represent amounts available
for management's discretionary use for needed capital replacement or
expansion, debt service obligations or other commitments.
(2) The Company computed the ratios of earnings to fixed charges and preferred
stock dividends by dividing earnings by fixed charges and preferred stock
dividends. For this purpose, earnings consist of earnings before
extraordinary items and fixed charges. Fixed charges consist of interest
expense, amortization of deferred financing costs, capitalized interest and
that portion of rental expense representative of the interest factor in
leases.
90
<PAGE>
CAUTIONARY STATEMENT CONCERNING
FORWARD-LOOKING STATEMENTS
Certain matters discussed in this Proxy Statement are forward-looking
statements that involve risks and uncertainties that could cause the Company's
actual results to differ materially from the expectations described in such
statements. These risks and uncertainties include the factors set forth in the
Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1999,
which is incorporated herein by reference. Forward-looking statements include
the information set forth under "Certain Financial Projections of the Company"
and "Estimated Proceeds Per Share in Liquidation". Such information has been
included in this Proxy Statement for the limited purpose of giving the
Stockholders access to financial projections that were furnished to the Board of
Directors, the Special Committee and their financial advisors.
CERTAIN FINANCIAL PROJECTIONS OF THE COMPANY
The information set forth under "Certain Financial Projections of the
Company" was based on assumptions concerning the Company's business prospects in
the years 1999 through 2001. The information also was based on other revenue and
operating assumptions. Information of this type is based on estimates and
assumptions that are inherently subject to significant economic and competitive
uncertainties and contingencies, all of which are difficult to predict and many
of which are beyond the Company's control. Accordingly, there can be no
assurance that the projected results would be realized or that actual results
would not be significantly higher or lower than those set forth under "Certain
Financial Projections of the Company."
In addition, the projections for the years ending December 31, 1999 through
December 31, 2001 were not prepared with a view to public disclosure or
compliance with the published guidelines of the Commission or the guidelines
established by the American Institute of Certified Public Accountants regarding
projections and forecasts and are included in this Proxy Statement only because
such information was made available to the Special Committee, the Board of
Directors, Lazard, Lehman and Prudential Securities.
The Company does not as a matter of course publicly disclose internal
budgets, plans, estimates, forecasts or projections as to future revenues,
earnings or other financial information. However, in order to aid the evaluation
of the Company by the Special Committee, the Board of Directors, Lazard, Lehman
and Prudential Securities, the Company in November 1998 and February 1999
furnished each of those entities with certain projections (the "November 1998
Projections" and the "February 1999 Projections," respectively, and collectively
the "Projections") prepared by the Company's management. The February 1999
Projections updated the November 1998 Projections.
The following summary of the Projections is included in this Proxy Statement
solely because the Projections were made available to such parties. The
Projections do not reflect any of the effects of the Merger or other changes
that may in the future be deemed appropriate concerning the Company and its
assets, business, operations, properties, policies, corporate structure,
capitalization and management in light of the circumstances then existing.
Except to the extent the February 1999 Projections update the November 1998
Projections, the Company has not updated the Projections to reflect changes that
have occurred since their preparation.
Neither the Company's independent auditors, nor any other independent
accountants, have compiled, examined or performed any procedures with respect to
the prospective financial information contained in the Projections, nor have
they expressed any opinion or given any form of assurance on such information or
its achievability.
While presented with numerical specificity, the Projections necessarily were
based on numerous assumptions, the material ones of which are set forth below
and many of which are beyond the control
91
<PAGE>
of the Company and may prove not to have been, or may no longer be, accurate.
However, the Company believes that as of the date they were prepared, such
assumptions were reasonable given the information known by management as of such
date. This information does not reflect revised prospects for the Company's
business, changes in general business and economic conditions, or any other
transaction or event that has occurred or that may occur and that was not
anticipated at the time such information was prepared. Accordingly, such
information is not necessarily indicative of current values or future
performance, which may be significantly more favorable or less favorable than as
set forth below, and should not be regarded as a representation that they will
be achieved.
NO PARTY BY OR TO WHOM THE PROJECTIONS WERE PROVIDED CAN GIVE ANY ASSURANCES
AS TO THE ACCURACY OF ANY SUCH PROJECTIONS OR THEIR UNDERLYING ASSUMPTIONS. THE
PROJECTIONS ARE NOT GUARANTEES OF PERFORMANCE. THEY INVOLVE RISKS, UNCERTAINTIES
AND ASSUMPTIONS. THE FUTURE RESULTS AND STOCKHOLDER VALUE OF THE COMPANY MAY
DIFFER MATERIALLY FROM THOSE EXPRESSED IN THE PROJECTIONS. MANY OF THE FACTORS
THAT WILL DETERMINE THESE RESULTS AND VALUES ARE BEYOND THE COMPANY'S ABILITY TO
CONTROL OR PREDICT. STOCKHOLDERS ARE CAUTIONED NOT TO PLACE UNDUE RELIANCE ON
THE PROJECTIONS. THERE CAN BE NO ASSURANCE THAT THE PROJECTIONS WILL BE REALIZED
OR THAT THE COMPANY'S FUTURE FINANCIAL RESULTS WILL NOT MATERIALLY VARY FROM THE
PROJECTIONS. THE COMPANY DOES NOT INTEND TO UPDATE OR REVISE THE PROJECTIONS
EXCEPT AS REQUIRED BY LAW.
The information set forth below should be read together with the information
contained in the Company's Annual Report on Form 10-K/A for the year ended
December 31, 1998, the Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1999 and the other information included or incorporated by
reference in this Proxy Statement.
Subject to the qualifications and limitations stated above, the information
set forth below generally relies upon the following material assumptions and
bases for projections:
I. NOVEMBER 1998 PROJECTIONS
Major Assumptions:
- Projected net operating income for 1999 on the individual properties was
based on 1999 forecasts done in conjunction with the then current 1998
projections.
- In years 2000 and 2001, the individual property revenues were increased by
3% annually and the expenses by 2% annually.
- The November 1998 Projections assumed the acquisition of three properties
and the disposition of four properties during the three year time frame.
- The November 1998 Projections assumed the completion of two development
projects underway.
- The Company's debt structure was anticipated to remain relatively
unchanged.
- No assumption was made for any additional equity capital.
- Corporate costs and general and administrative expenses for 1999 were
based on preliminary budgets and were increased 2% annually in 2000 and
2001.
II. FEBRUARY 1999 PROJECTIONS
Major Assumptions:
- Projected net operating income for 1999 on the individual properties was
based on final 1999 budgets.
- Property revenues were increased 3% annually and expenses 2% annually in
years 2000 and 2001.
92
<PAGE>
- The February 1999 Projections assumed the acquisition of the same three
properties, but at higher acquisition prices.
- Dispositions were increased from four properties to five properties plus
one land parcel.
- The February 1999 Projections reflected the completion of three
development projects, two currently in progress and one additional.
- Debt levels remain relatively unchanged.
- It was assumed that the Company would raise $50 million in perpetual
preferred stock and use $25 million for a joint venture investment and the
remaining proceeds to buy back the Company's common stock at an average
price of $10 per share.
- The February 1999 Projections assumed the joint venture investment would
represent a 20% equity investment that would generate cash on cash returns
of 13.7% in 2000 and 15.4% in 2001.
- Corporate costs and general and administrative expenses for 1999 were
based on final budgets and were increased 2% annually in 2000 and 2001.
93
<PAGE>
NOVEMBER 1998 PROJECTIONS
(DOLLARS IN THOUSANDS, EXCEPT SHARES OUTSTANDING AND PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
ACTUAL
FOR THE PROJECTIONS
YEAR FOR THE YEAR ENDED
ENDED ----------------------------------------------
1997 1998 1999 2000 2001
----------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Portfolio net operating income................. $ 62,608 $ 107,022 $ 115,972 $ 120,180 $ 124,529
Dispositions net operating income.............. -- -- 3,358 540 --
1999 Acquisitions net operating income......... -- -- 256 3,198 3,304
2000 Acquisitions net operating income......... -- -- -- 996 2,063
----------- ---------- ---------- ---------- ----------
Subtotal Multifamily net operating income...... 62,608 107,022 119,586 124,914 129,896
----------- ---------- ---------- ---------- ----------
Retail net operating income.................... 4,777 (67) -- -- --
Development net operating income............... -- -- 475 3,553 5,095
----------- ---------- ---------- ---------- ----------
Total net operating income..................... 67,385 106,955 120,061 128,467 134,991
Ancillary income............................... -- -- 472 750 1,000
Property management fees and third party
reimbursements............................... 3,178 3,668 3,380 3,481 3,551
Mortgage-backed security interest income....... 777 576 432 432 432
Interest income................................ 1,002 1,941 1,955 1,955 1,955
Mortgage loan interest income.................. 324 332 313 313 313
Interest expense--mortgages.................... (24,133) (33,633) (34,822) (34,822) (34,822)
Interest expense--Credit Facility.............. -- (6,568) (11,591) (12,600) (12,600)
Interest expense--Construction loan............ -- (476) (434) -- --
Capitalized interest........................... -- 1,737 2,008 947 288
Incremental interest expense--acquisitions..... -- -- -- (343) (686)
Property management fees....................... (773) -- -- -- --
General and administrative expenses............ (1,615) (1,348) (1,854) (1,891) (1,929)
Property management costs...................... (4,911) (7,751) (6,431) (6,560) (6,691)
Corporate costs................................ (3,515) (4,789) (3,857) (3,934) (4,013)
----------- ---------- ---------- ---------- ----------
FUNDS FROM OPERATIONS (FFO)(1)................. $ 37,719 $ 60,644 $ 69,632 $ 76,195 $ 81,789
----------- ---------- ---------- ---------- ----------
----------- ---------- ---------- ---------- ----------
FFO PER SHARE (DILUTED)........................ $ 1.092 $ 1.182 $ 1.337 $ 1.463 $ 1.571
FFO growth..................................... -- 8.28% 13.14% 9.41% 7.36%
EBITDA(2)...................................... $ 61,852 $ 99,583 $ 114,471 $ 123,004 $ 129,610
----------- ---------- ---------- ---------- ----------
----------- ---------- ---------- ---------- ----------
EBITDA PER SHARE............................... $ 1.790 $ 1.941 $ 2.199 $ 2.363 $ 2.489
----------- ---------- ---------- ---------- ----------
----------- ---------- ---------- ---------- ----------
</TABLE>
- ------------------------
(1) See "Selected Financial Data of the Company" for a definition of FFO.
(2) Represents earnings before interest expense, income tax expense,
depreciation expense and amortization expense.
94
<PAGE>
FEBRUARY 1999 PROJECTIONS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
PROJECTIONS
BUDGET FOR THE
FOR THE YEAR ENDED
YEAR ENDED ----------------------
1999 2000 2001
----------- ---------- ----------
<S> <C> <C> <C>
Real estate net operating income............................................. $ 121,573 $ 128,299 $ 133,281
Joint Venture earnings before depreciation................................... -- 2,141 3,846
Property Management fees and third party reimbursements...................... 3,247 3,344 3,445
MBS and notes receivable interest income..................................... 2,988 2,373 2,265
Interest expense............................................................. (44,942) (44,926) (46,537)
Corporate and general and administrative expenses............................ (5,528) (5,639) (5,751)
Property management costs.................................................... (7,982) (8,142) (8,304)
Perpetual preferred interest expense......................................... (1,583) (4,750) (4,750)
----------- ---------- ----------
FUNDS FROM OPERATIONS (FFO).................................................. $ 67,773 $ 72,700 $ 77,495
----------- ---------- ----------
FFO PER SHARE (DILUTED)...................................................... $ 1.307 $ 1.461 $ 1.558
----------- ---------- ----------
----------- ---------- ----------
FFO growth................................................................... -- 11.81% 6.59%
----------- ---------- ----------
----------- ---------- ----------
EBITDA....................................................................... $ 112,715 $ 117,627 $ 124,031
----------- ---------- ----------
----------- ---------- ----------
EBITDA PER SHARE (DILUTED)................................................... $ 2.173 $ 2.364 $ 2.493
----------- ---------- ----------
----------- ---------- ----------
</TABLE>
95
<PAGE>
ESTIMATED PROCEEDS PER SHARE IN LIQUIDATION
In accordance with the Company's Certificate of Incorporation, the Company
submitted the Liquidation Plan to the Stockholders for approval. The Board of
Directors recommended against adoption of the Liquidation Plan, and at a special
meeting of stockholders held on July 21, 1999, the Stockholders voted against
adoption of the Liquidation Plan.
The Certificate of Incorporation required the Board of Directors to estimate
the per share amount that would be available for distribution to Stockholders if
the Liquidation Plan were adopted. A preliminary estimate of such amount was
prepared by management and furnished to the Board of Directors in November 1998
(the "November 1998 Estimate"). A revised estimate, that gave effect to certain
indebtedness that was inadvertently omitted from the November 1998 Estimate, was
prepared and furnished to the Board and the Special Committee in December 1998
as a Pro Forma Condensed Consolidated Statement of Net Assets in Liquidation
(the "December 1998 Pro Forma Liquidation Statement").
A revised estimate, in the form of a Schedule of Estimated Amounts Available
for Distribution (the "February 1999 Estimated Proceeds Schedule") was prepared
in response to comments from the staff of the Commission in February 1999. The
February 1999 Estimated Proceeds Schedule assumed an effective date of December
31, 1998. The February 1999 Estimated Proceeds Schedule was furnished to Lazard,
Lehman and Prudential Securities.
The December 1998 Pro Forma Liquidation Statement differs in format (as a
result of the comments from the staff of the Commission) from the estimated net
proceeds upon liquidation set forth in the proxy statement related to the
Liquidation Plan which was mailed to Stockholders in June 1999 (the "June 1999
Liquidation Proxy"). The estimates set forth in the June 1999 Liquidation Proxy
also reflect (i) changes in interest rates following the preparation of the
December 1998 Pro Forma Liquidation Statement and the February 1999 Estimated
Proceeds Schedule and (ii) the obligation of the Company to pay Break-Up
Expenses in the event of termination of the Merger Agreement as a result of
adoption of the Liquidation Plan. The estimates set forth in the June 1999
Liquidation Proxy were formulated after April 13, 1999 and were not considered
by the Board of Directors, the Special Committee or their financial advisors in
determining whether to recommend approval and adoption of the Merger Proposal.
Those estimates would not have altered the views of the Board of Directors, the
Special Committee or the financial advisors as to the fairness of the Merger
Proposal.
The December 1998 Pro Forma Liquidation Statement is presented in this Proxy
Statement solely because the Board of Directors and the Special Committee
considered the estimates set forth therein in determining whether to approve and
adopt the Merger Proposal. The February 1999 Estimated Proceeds Schedule is
presented in the Proxy Statement solely because Lazard, Lehman and Prudential
Securities considered the estimates set forth therein in furnishing their
respective fairness opinions. THERE CAN BE NO ASSURANCE THAT THE ESTIMATED
PROCEEDS PER SHARE WOULD BE REALIZED IF THE COMPANY WERE LIQUIDATED. The Company
believes that there is a likelihood that certain risks related to liquidation
would result in holders of Common Stock realizing less than the amount per share
estimated below. These risks include without limitation the risk that a
substantial number of holders of OP Units would elect to receive a distribution
in kind of their contributed partnership interests and that, as a result, the
Company would retain an unsaleable minority interest in certain property-owning
partnerships.
The valuation of assets and liabilities necessarily requires estimates and
assumptions by management (see "--Significant Assumptions" below), or in the
case of real estate assets, independent appraisals, and there would be
substantial uncertainties in carrying out any liquidation plan. The actual value
of any liquidating distributions would depend upon a variety of factors
including, but not limited to, the actual proceeds from the sale of any of the
Company's assets, the ultimate settlement amounts of the Company's liabilities
and obligations, actual costs incurred in connection with carrying out the
96
<PAGE>
liquidation, including costs of liquidation and establishing reserves, and the
actual timing of the distributions.
The December 1998 Pro Forma Liquidation Statement, the February 1999
Estimated Proceeds Schedule and their respective related notes should be read in
conjunction with the Company's historical consolidated financial statements and
notes thereto. See "Financial Statements."
The values and liabilities ultimately realized in any liquidation could
differ from the amounts shown below and the difference could be material. No
assurance can be given that the amount that would be received in liquidation
would equal the estimated amount available for distribution per share presented
below.
SIGNIFICANT ASSUMPTIONS. The December 1998 Pro Forma Liquidation Statement and
the February 1999 Estimated Proceeds Schedule were prepared using balances as of
September 30, 1998 and December 31, 1998, respectively, and were based, in part,
on certain assumptions, including without limitation, the following:
- real estate values were based on independent appraisals with an effective
date of value as of October 15, 1998;
- the acquisition and related indebtedness of the apartment complex known as
Granite Run, which in fact closed in January 1999, had been consummated on
September 30, 1998, in the case of the December 1998 Pro Forma Liquidation
Statement, and December 31, 1998, in the case of the February 1999
Estimated Proceeds Schedule;
- that no holder of OP Units would elect to receive a distribution in kind;
- all mortgage notes payable would be paid off at time of sale, resulting in
contractual prepayment penalties to be incurred;
- that no payments would be made to BCLP under the Business Contribution
Agreement;
- that all holders of Preferred Stock would vote against the Liquidation
Plan and thereby be entitled to a liquidation preference of $28.75 per
share; and
- that the Company would maintain its REIT status during the liquidation
period, resulting in the Company incurring no material federal or state
income tax expenses.
97
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
DECEMBER 1998 PRO FORMA CONDENSED CONSOLIDATED STATEMENT
OF NET ASSETS IN LIQUIDATION
SEPTEMBER 30, 1998
(UNAUDITED)
<TABLE>
<CAPTION>
HISTORICAL PRO FORMA PRO FORMA
BALANCES(1) ADJUSTMENTS BALANCES
---------------- --------------- ----------------
<S> <C> <C> <C>
ASSETS
Real estate properties................................... $ 937,695,844 $ 274,107,656A $ 1,211,803,500
Mortgage loans........................................... 2,362,991 514,884B 2,877,875
Mortgage-backed securities............................... 5,419,432 372,288B 5,791,720
Cash and cash equivalents................................ 17,855,756 -- 17,855,756
Accounts receivable...................................... 1,747,139 -- 1,747,139
Note receivable.......................................... 7,500,000 -- 7,500,000
Workforce and other intangible assets.................... 12,707,078 (12,707,078)C --
Other assets............................................. 29,313,605 (8,643,890)D 20,699,715
---------------- --------------- ----------------
Total assets........................................... $ 1,014,601,845 $ 253,643,860 $ 1,268,245,705
---------------- --------------- ----------------
---------------- --------------- ----------------
LIABILITIES AND SHAREHOLDERS' EQUITY
Lines of credit and mortgage notes payable............... $ 560,464,463 $ 70,377,983E $ 630,842,446
Accounts payable and other liabilities................... 34,067,039 18,820,000F 52,887,039
---------------- --------------- ----------------
Liabilities.............................................. 594,531,502 89,197,983 683,729,485
Preferred stock.......................................... 68,425,000 10,263,750G 78,688,750
---------------- --------------- ----------------
Liabilities and preferred stock.......................... 662,956,502 99,461,733 762,418,235
Minority interest........................................ 84,837,938 20,775,091H 105,613,029
---------------- --------------- ----------------
Total liabilities...................................... 747,794,440 120,236,824 868,031,264
---------------- --------------- ----------------
Common shareholders' equity.............................. 266,807,405 (266,807,405)I --
---------------- --------------- ----------------
Total liabilities and shareholders' equity............... $ 1,014,601,845 $ (146,570,581) $ 868,031,264
---------------- --------------- ----------------
---------------- --------------- ----------------
Net assets in liquidation................................ $ 400,214,441
----------------
Number of common shares outstanding...................... 36,711,488
----------------
----------------
Net assets in liquidation per common share............... $ 10.90
----------------
----------------
</TABLE>
- ------------------------
(1) Certain historical balances have been reclassified to conform with the
liquidation basis of accounting presentation.
98
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
NOTES TO DECEMBER 1998 UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENT
OF NET ASSETS IN LIQUIDATION
SEPTEMBER 30, 1998
A. Represents adjustments to record real estate properties at their estimated
net realizable value based on independent appraisals adjusted as follows:
<TABLE>
<S> <C>
Aggregate appraised value (prepared on an as completed
basis)..................................................... $1,278,650,000
Less:
Estimated costs to complete development and rehabilitation
projects................................................... (28,487,000)
Estimated property disposition costs (3% of appraised
value)..................................................... (38,359,500)
-------------
Net realizable value......................................... $1,211,803,500
-------------
-------------
</TABLE>
B. Represents adjustments to record mortgage loans and mortgage-backed
securities at their estimated net realizable value.
C. Represents adjustments to record workforce and other intangible assets at
their estimated net realizable value. Management has ascribed no net
realizable value to such assets.
D. Represents adjustments to record other assets, which consists primarily of
escrows and deposits, at estimated net realizable value and to write-off
those assets, primarily deferred financing costs, for which management has
ascribed no realizable value.
E. Represents adjustments to record line of credit and mortgage notes payable
at their estimated settlement amounts as follows:
<TABLE>
<S> <C>
Historical book balance....................................... $560,464,463
Pro forma borrowing to acquire Granite Run.................... 25,500,000
Estimated amount of contractual prepayment penalties
associated with the assumed payoff all notes payable........ 44,877,983
-----------
Estimated settlement amount................................... $630,842,446
-----------
-----------
</TABLE>
F. Represents adjustments to record an accrual for estimated costs of
liquidation which include severance payments to employees ($11,200,000) and
other liabilities ($7,620,000).
G. Represents adjustment to reflect liquidation preference of Preferred Stock of
$28.75 per share.
H. Represents adjustment to reflect minority investors' interest in the
Operating Partnership at net realizable value of $10.90 per OP Unit.
I. Represents adjustment to shareholders' equity for the pro forma effect of
the adoption of the Plan.
99
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
FEBRUARY 1999 ESTIMATED PROCEEDS SCHEDULE
DECEMBER 31, 1998
(UNAUDITED)
<TABLE>
<CAPTION>
ESTIMATED
LIQUIDATION
VALUE
----------------
<S> <C>
Real estate properties.......................................................................... $ 1,224,969,500A
Mortgage loan................................................................................... 2,856,635B
Mortgage-backed securities...................................................................... 5,271,039C
Cash and cash equivalents....................................................................... 20,192,029
Accounts receivable............................................................................. 1,790,423
Note receivable................................................................................. 7,500,000
Other assets.................................................................................... 19,175,680D
----------------
Total assets.................................................................................. $ 1,281,755,306
----------------
----------------
Lines of credit and mortgage notes payable...................................................... $ 638,366,946E
Accounts payable and other liabilities.......................................................... 52,936,564F
Preferred stock................................................................................. 78,688,750G
Minority interest............................................................................... 106,634,799H
----------------
Total liabilities, preferred stock and minority interest...................................... $ 876,627,059
----------------
----------------
Estimated amount available for distribution..................................................... $ 405,128,247
----------------
----------------
Number of common shares outstanding............................................................. 36,713,400
----------------
----------------
Estimated amount available for distribution per common share.................................... $ 11.03
----------------
----------------
</TABLE>
100
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
NOTES TO FEBRUARY 1999 ESTIMATED PROCEEDS SCHEDULE
DECEMBER 31, 1998
(UNAUDITED)
<TABLE>
<S> <C> <C>
A. Reflects real estate properties at their estimated net realizable value based on
independent appraisals adjusted as follows:
Aggregate appraised value (prepared on an as completed basis)........... $1,278,550,000
Less:
Estimated costs to complete development and rehabilitation projects..... (15,224,000)
Estimated property disposition costs (3% of appraised value)............ (38,356,500)
-------------
Net estimated value..................................................... $1,224,969,500
-------------
-------------
Property disposition costs are estimated to be $38,356,500, which is 3% of the
aggregate appraised value (50% of these costs are expected to consist of brokerage
commissions and 50% of these costs are expected to consist of legal and closing costs).
B. Reflects mortgage loan at the actual outstanding principal balance before giving effect
to purchase discount.
C. Reflects mortgaged-backed securities at their estimated net realizable values as per
valuation report from the custodian.
D. Reflects other assets, which consist primarily of escrows, deposits and prepaid
expenses at estimated net realizable value. The assets for which management has
ascribed no realizable value, primarily deferred financing costs, have been written
off.
E. Reflects line of credit and mortgage notes payable at their estimated settlement
amounts as follows:
Outstanding principal balance at December 31, 1998...................... $ 572,699,318
Pro forma borrowing to acquire Granite Run.............................. 25,500,000
Estimated amount of contractual prepayment penalties associated with
the assumed payoff all notes payable.................................. 40,167,628
-------------
Estimated settlement amount............................................. $ 638,366,946
-------------
-------------
F. Reflects accounts payable and other accrued liabilities at December 31, 1998 as well as
accruals for estimated costs of liquidation, which include severance payments to
employees ($11,700,000) and other liabilities ($7,708,000).
G. Reflects liquidation preference of Preferred Stock of $28.75 per share.
H. Reflects minority investors' interest in the Operating Partnership at the estimated
amount available for distribution of $11.03 per OP Unit.
</TABLE>
101
<PAGE>
Appraisals. In connection with preparing the December 1998 Pro Forma
Liquidation Statement and the February 1999 Estimated Proceeds Schedule, the
Company obtained appraisals (the "Appraisals") of each of its properties from
Cushman & Wakefield, Inc. or one of its various subsidiaries (collectively,
"Cushman & Wakefield"). Cushman & Wakefield stated that, subject to the
limitations, assumptions and qualifications contained in the Appraisals and
based on representations made by the Company, the market value estimates in the
Appraisals were effective as of October 15, 1998. The Company selected Cushman &
Wakefield to prepare the Appraisals because of its reputation and experience in
connection with real estate assets. The Valuation Advisory Services Group of
Cushman & Wakefield, Inc. and its subsidiaries is one of the largest real estate
valuation and consulting networks in the United States. According to Cushman &
Wakefield, the Valuation and Advisory Group of Cushman & Wakefield, Inc. and its
subsidiaries operates out of 22 branch offices that are staffed by approximately
157 professionals, approximately 75 of whom hold the MAI designation. Cushman &
Wakefield serves institutional and corporate clients including banking and
financial institutions, investment banks, real estate investors, attorneys and
government agencies. The Company did not consider retaining other appraisal
companies. Cushman & Wakefield was selected on the basis of its national
presence, ability to meet tight reporting deadlines and its previous experience
appraising assets within the Company's portfolio. Other than the engagement
relating to the Appraisals, neither the Company nor any of its affiliates had
any material relationship with Cushman & Wakefield during the two-year period
ended May 1, 1999. Cushman & Wakefield was retained by the Company prior to that
period to prepare appraisal reports on certain of the Company's assets in the
ordinary course of the Company's business.
In preparing the Appraisals, Cushman & Wakefield collected from the Company
information regarding the operating history of the properties, conducted site
inspections of the properties, consulted with local brokers, buyers and sellers
of multi-family projects, reviewed economic and demographic trends for each
market and interviewed and relied on representations of certain representatives
of the Company.
As described in the Summary Appraisal attached hereto as Appendix I, Cushman
& Wakefield has determined that the Company's holdings consist of Class A and
Class B apartment complexes. Class A apartment complexes are generally recently
constructed buildings situated on large sites with well-landscaped grounds.
These complexes have amenities which are typical of modern apartments,
including, for example, washer and dryer hookups, swimming pools, clubhouses
with recreation areas and kitchens equipped with microwave ovens and
dishwashers. Apartment complexes may also be considered Class A (even if they
lack modern amenities) if those complexes have special features, such as their
excellent location or construction type. For example, a high-rise property
located within a very desirable residential neighborhood may achieve higher rent
levels than newer garden apartment properties which are located in less
desirable residential neighborhoods. Class B apartment complexes lack one or
several of the amenities described above for Class A apartment complexes and
typically consist of older buildings which have entered the period of their
economic life where capital repairs and unit replacements are required.
Cushman & Wakefield's conclusions are based upon conditions that they
observed at the properties during their inspections and assumptions,
qualifications and limitations deemed reasonable at the time concerning, among
other things, legal title, the absence of physical defects or hazardous
materials, future occupancy, income and competition with respect to each
property. The Company imposed no conditions or limitations on the scope of
Cushman & Wakefield's investigation or the methods and procedures to be followed
in preparing the Appraisals.
The Appraisals reflect Cushman & Wakefield's valuation of the real estate
assets of the Company as of the date stated in each Appraisal, in the context of
the information available on that date. Events occurring subsequent to that date
could affect the properties or assumptions used in preparing the Appraisals.
Because of the subjectivity inherent in the appraisal process, the estimated
appraised value
102
<PAGE>
for the properties shown in the Appraisals may differ significantly from that
which would be realized if the Liquidation Plan were approved and the assets
were sold. The Company paid Cushman & Wakefield $420,000 to prepare the
Appraisals.
The Appraisals will be made available for inspection and copying during
regular business hours at the Company's principal executive offices by any
Stockholder or a Stockholder's representative who has been so designated in
writing.
103
<PAGE>
COMMON STOCK MARKET PRICE INFORMATION;
DIVIDEND INFORMATION
The Common Stock is traded on the NYSE under the symbol "BRI." The following
table shows the per share high and low sales prices of the Common Stock as
reported by the NYSE. March 3, 1999 was the last full trading day prior to the
day the Parent publicly disclosed its initial proposal to effectuate the Merger
at a price of $11.05 per share. The following table also shows, for the periods
indicated, the dividends declared per share of Common Stock. The closing price
on the NYSE of the Common Stock on August 26, 1999 (the most recent practicable
date prior to the printing of this Proxy Statement) was $11.75. Holders of
Common Stock are encouraged to obtain current market quotations for the Common
Stock.
<TABLE>
<CAPTION>
MARKET PRICE OF
COMMON STOCK
-------------------- DIVIDENDS PAID
HIGH LOW PER SHARE
--------- --------- ---------------
<S> <C> <C> <C>
1997
First Quarter................................................................ $ 11.75 $ 10.00 $ .2250
Second Quarter............................................................... 11.25 10.63 .2250
Third Quarter................................................................ 12.38 11.63 .2325
Fourth Quarter............................................................... 12.31 10.88 .2325
------
$ .9150
------
------
1998
First Quarter................................................................ $ 12.38 11.44 $ .2325
Second Quarter............................................................... 12.31 11.00 .2425
Third Quarter................................................................ 11.94 9.06 .2425
Fourth Quarter............................................................... 10.44 8.69 .2425
------
$ .9600
------
------
1999
First Quarter................................................................ $ 11.50 $ 9.25 $ .2425
First Quarter (through March 3, 1999)........................................ $ 9.81 $ 9.25 --
First Quarter (from March 3, 1999 through March 31, 1999).................... $ 11.50 $ 9.69 --
Second Quarter............................................................... $ 11.69 $ 11.06 $ .2500
Third Quarter through August 26, 1999........................................ $ 11.81 $ 11.69 $ .2500
</TABLE>
The high and low sale price of the Common Stock on April 13, 1999, the last
full trading day prior to the announcement of the signing of the Merger
Agreement was $11.25.
On November 4, 1997, the Company consummated an underwritten public offering
of 10,000,000 shares of its Common Stock at a price of $11.00 per share and
received proceeds after underwriting discounts and commissions of approximately
$103,000,000.
During the 60-day period preceding the date of this Proxy Statement, the
Company issued 617,033 shares of Common Stock as a result of conversions of OP
Units.
The Company's practice is to review and declare dividends on a quarterly
basis, and to establish a dividend rate that is supportable by funds from
operations, after considering capital expenditures necessary for the maintenance
of the multifamily properties. On May 13, 1999, the Board approved a dividend of
$.25 per share that was paid on August 15, 1999 to the Stockholders of record on
August 1, 1999. The Company intends to make any other dividend payments
permitted by the Merger Agreement. See "Questions and Answers About the
Merger--What will happen to my Common Stock dividends?"
104
<PAGE>
As of the Record Date, there were approximately 26,000 registered holders of
Common Stock and 11 registered holders of Preferred Stock.
As of the Record Date, there were 2,737,000 shares of Preferred Stock
outstanding. Holders of shares of Preferred Stock are entitled to receive, if
declared by the Board of Directors, preferential cumulative quarterly cash
dividends, at the greater of the rate of 9% per annum or the dividend payable on
shares of Common Stock. See "Questions and Answers About the Merger--What will
happen to my Preferred Stock dividends?" Each share of Preferred Stock is
convertible, at the option of the holder, into 2.0756 shares of Common Stock,
based on a conversion price of $12.04 per share of Common Stock, subject to
certain adjustments.
The terms of the Preferred Stock provide that the Preferred Stock will rank
prior to any other series of preferred stock, prior to the Common Stock and
prior to any other class or series of capital stock of the Company with respect
to the payment of dividends, the right to redemption and the distribution
preference in the event of a change in ownership or the liquidation, dissolution
or winding up of the Company.
If the Merger is not consummated, the declaration of future dividends, if
any, will necessarily be dependent upon business conditions, the earnings and
financial position of the Company and the Company's plans with respect to
operating and capital expenditures and such other matters as the Board of
Directors deems relevant. See "Questions and Answers About the Merger--What will
happen to my Common Stock dividends?" and "--What will happen to my Preferred
Stock dividends?"
CERTAIN RELATIONSHIPS AND TRANSACTIONS
Pursuant to the Krupp Voting Agreement, Mr. Krupp has agreed to, and to
cause his affiliates (including BCLP) to, vote the Common Stock, which they own
(including any shares of Common Stock issued after the date the Krupp Voting
Agreement was executed) for approval and adoption of the Merger Proposal and the
approval of the transactions contemplated thereby. In addition, the Krupp Voting
Agreement provides that Mr. Krupp will, and will cause his affiliates to, vote
the OP Units that they own for approval and adoption of the Partnership Merger
Agreement and the approval of the transactions contemplated thereby.
On February 17, 1997, a special committee of the Board of Directors
consisting of disinterested directors approved the acquisition of the workforce
and other assets of an affiliate of Mr. Krupp which provided multi-family
property management services to the Company (the "Property Manager"). The
Property Manager was contributed to the Operating Partnership on February 28,
1997 in exchange for 1.7 million OP Units with a value of approximately $17.6
million as of the contribution date.
The Company receives management fees and reimbursements associated with
third-party management contracts which are primarily with partnerships
affiliated with Mr. Krupp. The Company received management fees and
reimbursements of approximately $3,238,000 related to affiliated third-party
management contracts for the year ended December 31, 1998.
The Company has an agreement with BCLP whereby each party will provide
certain administrative services for the other party. Pursuant to this agreement,
BCLP provides services related to legal services and investor records support,
and the Company provides human resources services, insurance and real estate tax
support. On a net basis, the Company paid BCLP aggregate fees and reimbursements
pursuant to this agreement of $1,324,263 in 1997 and $1,302,462 in 1998 and
$635,475 in 1999 through June 30, 1999.
105
<PAGE>
MANAGEMENT OF THE COMPANY
The Directors and executive officers of the Company as of the Record Date
were as follows:
<TABLE>
<CAPTION>
DATE INITIALLY
NAME AND AGE OFFICES HELD ELECTED
- ------------------------------ ----------------------------------------------------------- --------------------
<S> <C> <C>
Douglas Krupp (53) Chairman of the Board and Director February 8, 1996
David Marshall (51) President, Chief Executive Officer and Director March 1, 1996
J. Paul Finnegan (74) Director October 17, 1990
Charles N. Goldberg (57) Director October 17, 1990
E. Robert Roskind (54) Director October 17, 1990
David M. deWilde (58) Director March 8, 1993
Terrance R. Ahern (43) Director October 9, 1997
Paul D. Kazilionis (41) Director October 9, 1997
Arthur P. Solomon (59) Director October 9, 1997
Ridge Frew (50) Executive Vice President and Chief Operating Officer February 28, 1997
Marianne Pritchard (49) Executive Vice President and Chief Financial Officer August 15, 1991
David Olney (39) Executive Vice President and Chief Investment Officer March 1, 1996
Dennis Suarez (45) Senior Vice President March 1, 1996
Kenneth J. Richard (43) Senior Vice President and Chief Accounting Officer May 13, 1997
James Jackson (65) Vice President February 28, 1997
Scott D. Spelfogel (38) Senior Vice President, General Counsel and Secretary May 7, 1991
</TABLE>
Douglas Krupp co-founded and serves as Co-Chairman and Chief Executive
Officer of The Berkshire Group, an integrated real estate financial services
firm engaged in real estate acquisition, investment sponsorship, mortgage
banking, venture capital investing and financial management. Mr. Krupp has held
the position of Co-Chairman since The Berkshire Group was established as The
Krupp Companies in 1969 and he has served as the Chief Executive Officer since
1992. Mr. Krupp is a Trustee of Krupp Government Income Trust and Krupp
Government Income Trust II, and a member of the Board of Trustees at Brigham &
Women's Hospital. He is a graduate of Bryant College where he received an
honorary Doctor of Science in Business Administration in 1989 and was elected
trustee in 1990.
David Marshall was elected President of the Company on March 5, 1996 and
Chief Executive Officer on February 28, 1997. He was President of Berkshire
Realty Affiliates, the former advisor to the Company and a member of The
Berkshire Group from January 1995 until March 1996. Before joining The Berkshire
Group in July, 1986, Mr. Marshall was President of Resource Savings Association.
Prior to that, Mr. Marshall served as a Vice President of Citicorp Real Estate,
Inc. He holds a B.S. degree from Michigan State University and a M.B.A. degree
from the University of Michigan.
J. Paul Finnegan retired as a partner of Coopers & Lybrand, LLP in 1987.
Since then, he has been engaged in business as a consultant, a director and
arbitrator. Mr. Finnegan holds a B.A. degree from
106
<PAGE>
Harvard College, a J.D. degree from Boston College Law School and an A.S.A.
degree from Bentley College. Mr. Finnegan currently serves as a Trustee of Krupp
Government Income Trust and as a Trustee of Krupp Government Income Trust II. He
is also currently a Director at Scituate Federal Savings Bank. Mr. Finnegan is a
Certified Public Accountant and an attorney.
Charles N. Goldberg is of counsel to the law firm of Broocks, Baker & Lange,
L.L.P. Prior to joining Broocks, Baker & Lange, L.L.P., Mr. Goldberg was a
partner in the law firm of Hirsch & Westheimer from March of 1996 to December of
1997. Prior to Hirsch & Westheimer, he was the Managing Partner of Goldberg
Brown, Attorneys at Law from 1980 to March of 1996. He currently serves as a
Trustee of Krupp Government Income Trust and Krupp Government Income Trust II.
He received a B.B.A. degree and a J.D. degree from the University of Texas. He
is a member of the State Bar of Texas and is admitted to practice before the
U.S. Court of Appeals, Fifth Circuit and U.S. District Court, Southern District
of Texas.
E. Robert Roskind is the Chairman and Co-Chief Executive Officer of
Lexington Corporate Properties, a self-administered REIT, the shares of which
are listed on the NYSE. Mr. Roskind has served in this capacity since October
1993. Mr. Roskind is also the Managing Partner of The LCP Group, a real estate
investment firm based in New York, the predecessor of which he co-founded in
1974. He currently serves as a trustee of Krupp Government Income Trust and
Krupp Government Income Trust II and Chairman of the Board of Trustees of
Lexington Corporate Properties. He holds a B.A. degree from the University of
Pennsylvania and a J.D. degree from Columbia Law School. He has been a member of
the New York Bar since 1970.
David M. deWilde has been a Managing Partner of LAI Worldwide, an executive
search firm headquartered in New York City, since January 1998. Prior to that he
was Chief Executive Officer of Chartwell Partners International, Inc., an
executive search firm headquartered in San Francisco, which was founded by Mr.
deWilde in 1989. Previously, Mr. deWilde was Managing Director of Boyden
International, Inc. Mr. deWilde is currently on the Board of Directors of
Silicon Valley Bancshares. Mr. deWilde was Executive Vice President for Policy
and Planning of the Federal National Mortgage Association from 1981 until 1983.
His prior public service roles included President of the Government National
Mortgage Association, Deputy Commissioner of the Federal Housing Administration
and Deputy Assistant Secretary of the Department of Housing and Urban
Development. Mr. deWilde's private sector background includes investment banking
experience both as Managing Director of Lepercq de Neuflize & Co. from 1977
until 1981, and Lehman and legal experience. He holds an A.B. degree from
Dartmouth College, a L.L.B. degree from the University of Virginia and a M.S.
degree in Management from Stanford University.
Terrance R. Ahern is a co-founder and principal of The Townsend Group, an
institutional real estate consulting firm formed in 1986 which represents
primarily tax-exempt clients such as public and private pension plans,
endowment, foundation and multi-manager investments. Mr. Ahern is a member of
the Board of Directors of the Pension Real Estate Association (PREA). He was
formerly a member of the Board of Governors of the National Association of Real
Estate Investment Trusts (NAREIT). Prior to founding The Townsend Group, Mr.
Ahern was a Vice President of a New York based real estate investment firm and
was engaged in the private practice of law. Mr. Ahern received a B.A. and J.D.
from Cleveland State University.
Paul D. Kazilionis is a managing principal and a co-founder of Westbrook
Real Estate Partners, L.L.C. ("WREP"), an investment advisor to institutional
investors. Prior to co-founding WREP in March 1994, Mr. Kazilionis spent 12
years at Morgan Stanley ultimately serving as Managing Director of Morgan
Stanley Realty and President of the general partner of the Morgan Stanley Real
Estate Fund responsible for Morgan Stanley principal investing in real estate.
Mr. Kazilionis received a B.A. degree from Colby College in 1979 and a M.B.A.
degree from the Amos Tuck School of Business Administration in 1982.
107
<PAGE>
Arthur P. Solomon is a private real estate investor. From 1989 through April
1999, he was a Managing Director of Lazard and head of the firm's Real Estate
Group. Previously, Mr. Solomon was a Managing Director and head of real estate
investment banking at Drexel Burnham Lambert from 1985 to 1989. Before that, he
was Chief Executive Officer of the predecessor of The Berkshire Group from 1983
to 1985 and Executive Vice President and Chief Financial Officer of the Federal
National Mortgage Association from 1981 to 1983. Mr. Solomon also was a tenured
faculty member at Massachusetts Institute of Technology specializing in urban
economics, housing and finance, and at the same time served as the Executive
Director of the Harvard-MIT Joint Center for Urban Studies. He served on the
President's Task Force on Domestic and Intergovernmental Affairs during the
Johnson Administration. He holds a B.A. from Brown University, an M.A. from
Trinity College and a Ph.D. in Economics from Harvard University.
Ridge B. Frew is the Executive Vice President and Chief Operating Officer
for the Company and is responsible for the management of the Company's
multifamily property portfolio located primarily in the Mid-Atlantic and
Southeast regions of the United States, Florida and Texas. Prior to that, he was
a Divisional Vice President with Berkshire Property Management. Before joining
Berkshire Property Management in April, 1992, Mr. Frew was President and Chief
Executive Officer of McKinley Properties, responsible for the management and
disposition of over 14,000 residential units and five million square feet of
commercial space located in 16 states. Prior to that, he served as Vice
President of Olind Jenni Properties and Director of Property Management for
Nevada Savings and Loan. Mr. Frew received his B.A. degree from the University
of Nevada.
Marianne Pritchard is the Executive Vice President and Chief Financial
Officer of the Company. Prior to joining the Company, she was Senior Vice
President and Chief Financial Officer of Berkshire Realty Affiliates, the
advisor and property manager for the Company and several affiliated real estate
investment and mortgage companies. Prior to that, she was Vice-President and
Controller of Liberty Real Estate Group, a subsidiary of Liberty Mutual
Insurance Company from July 1989 to August 1991. She received her B.B.A. degree
in Accounting from the University of Texas. She is a Certified Public
Accountant.
David J. Olney is the Executive Vice President and Chief Investment Officer
with responsibility for all acquisitions, property sales, finance and other
asset management activities for the Company. Previously, he held a similar
position with The Berkshire Group and has held several positions within The
Berkshire Group since April, 1986. Mr. Olney received a B.S. degree specializing
in Finance from Bryant College and a M.B.A. degree from Babson College.
Dennis Suarez has been Senior Vice President of Development since March 1,
1996. Prior to being elected to this position on March 1, 1996, he served in a
similar position with Berkshire Multifamily Development Corporation, a member of
The Berkshire Group, and was responsible for all development activities. Prior
to joining Berkshire Multifamily Development Corporation in January, 1994, he
was Vice President of Construction for Lane Management, Realty Construction
Corp. He earned Bachelors degrees in Architecture and Building Construction from
the University of Florida, and a B.A. degree in Interior Design from Southern
College.
Kenneth J. Richard is the Senior Vice President of Finance and Accounting
and Chief Accounting Officer for the Company. Prior to his joining the Company
in 1997, he was Vice President and Treasurer for The Beacon Companies, a
developer, owner and manager of commercial properties, from 1994 to 1997. Prior
to joining The Beacon Companies, Mr. Richard was Vice President and Chief
Financial Officer of The Codman Company, Inc., a real estate brokerage and
management firm in Boston, from 1991 to 1994. Mr. Richard holds a B.S. degree in
Business Administration from Northeastern University. Mr. Richard is a Certified
Public Accountant.
James Jackson has been the Vice President of Human Resources for the Company
since February 28, 1997. Prior to being elected to this position, he held a
similar position with The Berkshire
108
<PAGE>
Group since March, 1987. Prior to that, he held the positions of Vice President
of Human Resources for Helix Technology and GSX Corporation. He received an A.B.
degree from Brown University, a M.S. degree from Union College, and a J.D.
degree from Harvard Law School. He is admitted to the bar in Illinois,
Massachusetts and Florida.
Scott D. Spelfogel is the Senior Vice President, General Counsel and
Secretary of the Company. He is also the Senior Vice President and General
Counsel to The Berkshire Group. Before joining The Berkshire Group in November
1988, he was in private practice in Boston. He received a B.S. degree in
Business Administration from Boston University, a J.D. degree from Syracuse
University's College of Law, and a L.L.M. degree in Taxation from Boston
University Law School. He is admitted to the bar in Massachusetts and New York.
There are no family relationships among the Directors and executive
officers.
109
<PAGE>
MANAGEMENT OF THE PARENT AND THE ACQUIROR;
GENERAL PARTNERS OF THE PARENT
THE PARENT AND THE ACQUIROR
The Parent is a Delaware limited partnership. The Acquiror is a wholly-owned
subsidiary of the Parent. The business and affairs of the Parent are controlled
by its three general partners, Berkshire GP, WXI/BRH Gen-Par, L.L.C. ("Whitehall
GP") and BRE/Berkshire GP L.L.C. ("Blackstone GP" and, together with Berkshire
GP and Whitehall GP, the "General Partners"), pursuant to the terms of the
Parent Partnership Agreement. Under the Parent Partnership Agreement, Berkshire
GP has been designated as the "Administering General Partner" and, in such
capacity, is responsible for managing the day-to-day operations of the Parent.
The Parent Partnership Agreement provides, however, that certain actions of the
Parent may not be taken without the prior approval of a majority, or in some
cases all, of the General Partners. The Parent and the Acquiror currently have
no executive officers. Douglas Krupp and David Olney are the Chairman and Chief
Executive Officer and the President, respectively, of Berkshire GP.
BERKSHIRE GP
Berkshire GP is Aptco Gen-Par, L.L.C., a Delaware limited liability company
whose principal business is serving as a general partner of the Parent. The sole
member of Berkshire GP is Berkshire LP, a Delaware limited liability company
which is also a limited partner of the Parent. The sole managing member of
Berkshire LP is BCLP, a Massachusetts limited partnership that, together with
its subsidiaries, is principally engaged in mortgage banking and investment
sponsorship, asset and other management services, venture capital investing,
commercial laundry and linen services, and furniture manufacturing and sales.
The sole general partners of BCLP are KGP-1 and KGP-2. KGP-1 and KGP-2 are each
Massachusetts corporations whose principal business is serving as a general
partner of BCLP and certain of its affiliates. Douglas Krupp and George Krupp
are the sole directors and sole shareholders of KGP-1 and KGP-2. The sole
executive officers of KGP-1 and KGP-2 are Douglas Krupp (President) and David
Quade (Executive Vice President). The principal business address of Berkshire
GP, Berkshire LP, BCLP, KGP-1, KGP-2, Douglas Krupp, George Krupp and David
Quade is One Beacon Street, Suite 1500, Boston, Massachusetts 02108.
Douglas Krupp is the Chairman of the Board of the Company and Co-Chairman
and Chief Executive Officer of the Berkshire Group. See "Management of the
Company." George Krupp is actively involved in the management of BCLP and
affiliated entities. He is also an instructor of history at the New Jewish High
School, Waltham, Massachusetts. David Quade serves as Executive Vice President
and Chief Financial Officer of The Berkshire Group. Each of Douglas Krupp,
George Krupp and David Quade is a citizen of the United States.
BLACKSTONE GP
Blackstone GP is BRE/Berkshire GP L.L.C., a Delaware limited liability
company that was formed in connection with the formation of the Parent. The
members of Blackstone GP consist of a number of limited partnerships (including
BREP III), the general partner of each of which is Blackstone Real Estate
Associates III L.P., a Delaware limited partnership ("Blackstone Associates").
The sole general partner of Blackstone Associates is Blackstone Real Estate
Management Associates III L.P. ("Management Associates"). The sole general
partner of Management Associates is BREA III L.L.C., a Delaware limited
liability company ("BREA"). Peter G. Peterson and Steven A. Schwarzman are the
founding and managing members of BREA. The principal business address of
Blackstone GP, Blackstone Associates, Management Associates, Mr. Peterson and
Mr. Schwarzman is 345 Park Avenue, New York, New York 10154. The current
principal occupation of each of Mr. Peterson and
110
<PAGE>
Mr. Schwarzman is serving as an executive of one or more investment funds. Each
of Mr. Peterson and Mr. Schwarzman is a citizen of the United States.
WHITEHALL GP
Whitehall GP is WXI/BRH Gen-Par, L.L.C., a Delaware limited liability
company that was formed in connection with the formation of the Parent.
Whitehall GP is a wholly owned subsidiary of Whitehall (Whitehall Street Real
Estate Limited Partnership XI), a Delaware limited partnership that was formed
for the purpose of investing in debt and equity interests in real estate assets
and businesses. WH Advisors, L.L.C. XI, a Delaware limited liability company
("WH Advisors"), acts as the sole general partner of Whitehall. Goldman, Sachs &
Co., a New York limited partnership ("GS&Co."), is an investment banking firm
and a member of the New York Stock Exchange, Inc. and other national exchanges.
GS&Co. is the investment manager for Whitehall. The Goldman Sachs Group, Inc.
("GS Group"), is a Delaware corporation and holding company that (directly or
indirectly through subsidiaries or affiliated companies or both) is a leading
investment banking organization and is a successor-in-interest to The Goldman
Sachs Group, L.P., which was merged with and into GS Group on May 7, 1999. GS
Group owns directly and indirectly all of the partnership interests in GS&Co.
and is the sole member of WH Advisors.
The principal business address of Whitehall GP, Whitehall, WH Advisors,
GS&Co. and GS Group is 85 Broad Street, New York, New York 10004. The name,
business address, present principal occupation or employment and the citizenship
of (i) each manager and executive officer of Whitehall GP is set forth on
Appendix F to this Proxy Statement and is incorporated herein by reference, (ii)
each manager and executive officer of WH Advisors is set forth on Appendix G to
this Proxy Statement and is incorporated herein by reference and (iii) each
director of GS Group is set forth on Appendix H to this Proxy Statement and is
incorporated herein by reference.
111
<PAGE>
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
AND MANAGEMENT OF THE COMPANY
The following table sets forth certain information, as of August 13, 1999,
with respect to the beneficial ownership of shares of Common Stock and Preferred
Stock by (i) each person known to the Company to beneficially own more than 5%
of the outstanding shares of Common Stock or Preferred Stock; (ii) the directors
of the Company; (iii) the Chief Executive Officer of the Company and the four
most highly compensated executive officers (other than the Chief Executive
Officer) whose total annual salary and bonus exceeded $100,000 for the fiscal
year ended December 31, 1998; and (iv) all current directors and executive
officers of the Company as a group.
<TABLE>
<CAPTION>
NAME AND ADDRESS AMOUNT AND NATURE OF PERCENTAGE
TITLE OF CLASS OF BENEFICIAL OWNER (1) BENEFICIAL INTEREST (2) OF CLASS (3)
- ------------------ ----------------------------------- ------------------------ -------------
<S> <C> <C> <C>
PREFERRED STOCK
Preferred Stock Cudd & Co. 188,552 Shares(4) 6.9%
599 Lexington Avenue
New York, NY 10022
Preferred Stock Paul D. Kazilionis 2,337,000 Shares(4)(5) 85.4%
Preferred Stock Westbrook Berkshire 254,117 Shares(4) 9.3%
Co-Holdings, L.L.C.
599 Lexington Avenue
Suite 3800
New York, NY 10022
Preferred Stock Westbrook Berkshire 2,082,883 Shares(4) 76.1%
Holdings, L.L.C.
599 Lexington Avenue
Suite 3800
New York, NY 10022
Preferred Stock All Directors and Executive 2,337,000 Shares(4)(5) 85.4%
Officers as a Group (17 people)
COMMON STOCK
Common Stock Terrance Ahern 6,000 Shares (7)
Common Stock The Berkshire Companies 3,209,091 Shares(8) 7.9%
Limited Partnership
Common Stock Berkshire Realty Holdings, L.P. 5,881,369 Shares(9) 13.8% (28)
Common Stock David M. deWilde 27,800 Shares(10) (7)
Common Stock Paul Finnegan 28,000 Shares(11) (7)
Common Stock Ridge Frew 91,117 Shares(12) (7)
Common Stock Charles Goldberg 22,000 Shares(13) (7)
Common Stock Stephen Gorn 357,382 Shares(14) (7)
Common Stock Gregory J. Hartman 5,688,107 Shares(15) 13.2%
345 California Street
Suite 3450
San Francisco, CA 94104
Common Stock Paul Kazilionis 5,693,107 Shares(15)(16) 13.2%
Common Stock KGP-1, Incorporated 3,744,066 Shares(17) 9.1%
</TABLE>
112
<PAGE>
<TABLE>
<CAPTION>
NAME AND ADDRESS AMOUNT AND NATURE OF PERCENTAGE
TITLE OF CLASS OF BENEFICIAL OWNER (1) BENEFICIAL INTEREST (2) OF CLASS (3)
- ------------------ ----------------------------------- ------------------------ -------------
<S> <C> <C> <C>
Common Stock KGP-2, Incorporated 3,744,066 Shares(18) 9.1%
Common Stock Douglas Krupp 5,866,369 Shares(19) 13.7% (28)
Common Stock George Krupp 5,871,269 Shares(20) 13.7% (28)
Common Stock David Marshall 409,747 Shares(21) 1.1%
Common Stock Morgan Stanley Dean Witter & Co. 1,995,300 Shares(22) 5.3%
1585 Broadway
New York, NY 10036
Common Stock Morgan Stanley Dean Witter 1,958,700 Shares(22) 5.2%
Investment Management Inc.
1221 Avenue of the Americas
New York, NY 10020
Common Stock David Olney 94,984 Shares(23) (7)
Common Stock Jonathan H. Paul 5,688,107 Shares(15) 13.2%
599 Lexington Avenue
Suite 3800
New York, NY 10022
Common Stock Marianne Pritchard 98,228 Shares(24) (7)
Common Stock E. Robert Roskind 43,000 Shares(25) (7)
Common Stock Arthur Solomon 5,000 Shares(26) (7)
Common Stock William H. Walton III 5,688,107 Shares(15) 13.2%
599 Lexington Avenue
Suite 3800
New York, NY 10022
Common Stock Westbrook Berkshire Co-Holdings, 5,688,107 Shares(15) 13.2%
L.L.C.
599 Lexington Avenue
Suite 3800
New York, NY 10022
Common Stock Westbrook Berkshire Holdings, 5,688,107 Shares(15) 13.2%
L.L.C.
599 Lexington Avenue
Suite 3800
New York, NY 10022
Common Stock Westbrook Real Estate Co-Investment 5,688,107 Shares(15) 13.2%
Partnership II, L.P.
599 Lexington Avenue
Suite 3800
New York, NY 10022
Common Stock Westbrook Real Estate Fund II, L.P. 5,688,107 Shares(15) 13.2%
599 Lexington Avenue
Suite 3800
New York, NY 10022
</TABLE>
113
<PAGE>
<TABLE>
<CAPTION>
NAME AND ADDRESS AMOUNT AND NATURE OF PERCENTAGE
TITLE OF CLASS OF BENEFICIAL OWNER (1) BENEFICIAL INTEREST (2) OF CLASS (3)
- ------------------ ----------------------------------- ------------------------ -------------
<S> <C> <C> <C>
Common Stock Westbrook Real Estate Partners, 5,688,107 Shares(15) 13.2%
L.L.C.
599 Lexington Avenue
Suite 3800
New York, NY 10022
Common Stock Westbrook Real Estate Partners 5,688,107 Shares(15) 13.2%
Management II, L.L.C.
599 Lexington Avenue
Suite 3800
New York, NY 10022
Common Stock All Directors and Executive 12,889,765 Shares(27) 26.1% (28)
Officers as a group (17 people)
</TABLE>
- ------------------------
(1) The address of each person, except as noted, is c/o Berkshire Realty
Company, Inc., One Beacon Street, Suite 1550, Boston, Massachusetts 02108.
(2) Excepted as indicated in the other notes to this table for each beneficial
owner, information relating to beneficial ownership is based upon
information furnished by each person using "beneficial ownership" concepts
set forth in rules of the Commission under Section 13 of the Exchange Act.
Under those rules, a person is deemed to be a "beneficial owner" of a
security if that person has or shares "voting power" which includes the
power to vote or to direct the voting of such security, or "investment
power," which includes the power to dispose or to direct the disposition of
such security. The person is also deemed to be a beneficial owner of any
security of which that person has a right to acquire beneficial ownership
(such as by exercise of options) within 60 days after August 13, 1999. Under
such rules, more than one person may be deemed to be a beneficial owner of
the same securities, and a person may be deemed to be a beneficial owner of
securities as to which he or she may disclaim any beneficial interest.
Except as indicated in other notes to this table, directors and executive
officers possessed sole voting and investment power with respect to all
shares of Common Stock and Preferred Stock referred to in the table.
(3) Any Common Stock not outstanding which is subject to options or conversion
privileges which the beneficial owner had the right to exercise as of August
13, 1999 or within 60 days thereafter shall be deemed outstanding for
purposes of computing the percentage of Common Stock owned by such
beneficial owner but shall not be deemed to be outstanding for the purpose
of computing the percentage of outstanding Common Stock owned by any other
beneficial owner. However, for purposes of determining the percentage of
Common Stock owned by the Directors and Officers as a group, any Common
Stock not outstanding which is subject to options or conversion privileges
which a member of the group had the right to exercise as of August 13, 1999
or within 60 days thereafter shall be deemed outstanding for purposes of
computing the percentage of ownership of the group.
(4) Information with respect to the Preferred Stock held by Cudd & Co.,
Westbrook Berkshire Co-Holdings, L.L.C. ("Co-Holdings"), and Westbrook
Berkshire Holdings, L.L.C. ("Holdings") is based on the Company's stock
ledger records.
(5) Mr. Kazilionis is an indirect beneficial owner of the 2,082,883 shares of
Preferred Stock held by Holdings and the 254,117 shares of Preferred Stock
held by Co-Holdings, by virtue of being a managing principal of Westbrook
Real Estate Partners, L.L.C. ("WREP"), an affiliate of Holdings and
Co-Holdings. Mr. Kazilionis has shared voting and investment powers for
these shares and disclaims beneficial ownership of these shares except to
the extent of his pecuniary interest therein.
114
<PAGE>
(6) Mr. Ahern owns no shares of Common Stock directly. Mr. Ahern has the right
to acquire 6,000 shares of Common Stock pursuant to Options.
(7) The amount owned does not exceed one percent of the Common Stock of the
Company outstanding as of August 13, 1999.
(8) According to a joint filing made by BCLP, Douglas Krupp, George Krupp,
KGP-1, KGP-2, Berkshire GP and Berkshire LP (collectively, the "Krupp
Affiliates") on a Schedule 13D filed with the Commission on March 4, 1999,
as amended (as so amended, the "Krupp Schedule 13D"), BCLP claims to have
sole voting and sole dispositive power over 3,209,091 shares of Common Stock
by virtue of its record ownership of 3,209,091 OP Units, which are
convertible on a one-for-one basis for shares of the Company's Common Stock
or cash, at the election of the Operating Partnership. According to the
Krupp Schedule 13D, BCLP disclaims beneficial ownership of Common Stock
issuable upon the conversion of OP Units because the Operating Partnership
may elect to substitute cash in lieu of causing the Company to issue such
Common Stock.
(9) Includes 5,881,369 shares of Common Stock beneficially owned by, or deemed
to be beneficially owned by, the Krupp Affiliates and excludes 27,208 shares
of Common Stock held in Managed Accounts that may be deemed to be
beneficially owned by GS&Co. or GS Group.
According to (i) the Krupp Schedule 13D, (ii) a joint filing made by GS
Group, Whitehall, Whitehall GP, WH Advisors, GS&Co. and GS Group
(collectively, the "Whitehall Affiliates") on Schedule 13D filed with the
Commission on March 4, 1999, as amended (as so amended, the "Whitehall 13D")
and a Form 3 filed with the Commission on March 4, 1999, as amended (as so
amended, the "Whitehall Form 3") and (iii) a joint filing made by Blackstone
Real Estate Acquisitions III, L.L.C., Blackstone Real Estate Advisors III,
L.P., BRE Advisors III L.L.C., Blackstone GP, BRE/Berkshire LP L.L.C.
("Blackstone LP"), Peter G. Peterson and Stephen A. Schwarzman
(collectively, the "Blackstone Affiliates") on Schedule 13D filed with the
Commission on March 4, 1999, as amended (as so amended, the "Blackstone
13D") and Forms 3 filed with the Commission on March 4, 1999 and April 22,
1999, (the "Blackstone Forms 3"), the Krupp Affiliates, the Whitehall
Affiliates and the Blackstone Affiliates formed the Parent for the purpose
of engaging in the transactions contemplated by the Merger Agreement and the
Partnership Merger Agreement. According to the Krupp Schedule 13D, the
Whitehall 13D and the Blackstone 13D, as a result of the making of a
proposal by certain of the Krupp Affiliates, certain of the Whitehall
Affiliates and certain of the Blackstone Affiliates for the acquisition of
the Company on February 22, 1999 and the entry by the Parent and the
Acquiror into the Merger Agreement, the Krupp Affiliates, the Whitehall
Affiliates and the Blackstone Affiliates may be deemed to constitute a
"group" within the meaning of Section 13(d) of the Exchange Act and,
therefore, such a group may be deemed to have acquired beneficial ownership
of any shares of Common Stock of the Company owned or deemed to be
beneficially owned by the Krupp Affiliates, the Blackstone Affiliates or the
Whitehall Affiliates. According to the Whitehall 13D and the Whitehall Form
3, the Whitehall Affiliates do not affirm that (i) they constitute a group
with the Krupp Affiliates and/or the Blackstone Affiliates for the purposes
of Section 13(d) of the Exchange Act or any other purpose and (ii) Whitehall
and Whitehall GP constitute a group with Berkshire GP, Berkshire LP,
Blackstone GP and Blackstone LP for any purpose other than what they may be
deemed to constitute under Section 13(d) of the Exchange Act. According to
the Blackstone 13D and the Blackstone Forms 3, the Blackstone Affiliates do
not affirm that they constitute a group with the Krupp Affiliates and/or the
Whitehall Affiliates for the purposes of Section 13(d) of the Exchange Act
or any other purpose. According to the Krupp Schedule 13D, the Krupp
Affiliates do not affirm that they constitute a group with Whitehall,
Whitehall GP, Blackstone GP and Blackstone LP for any purpose other than
what they may be deemed to constitute under Section 13(d) of the Exchange
Act. In addition, according to the Whitehall 13D, the Whitehall
115
<PAGE>
Form 3, the Blackstone 13D and the Blackstone Forms 3, each of the Whitehall
Affiliates and the Blackstone Affiliates disclaims beneficial ownership of,
and any pecuniary interest in, any shares of Common Stock, including those
beneficially owned by the Krupp Affiliates, that may be deemed to be
beneficially owned by any such deemed group or by the Parent.
Further, the Whitehall 13D and the Whitehall Form 3 state that as of February
22, 1999 each of GS Group and GS&Co. may be deemed to beneficially own, for
Section 13(d) purposes, 27,208 shares of Common Stock held in Managed
Accounts. According to the Whitehall 13D and the Whitehall Form 3, each of
the Whitehall Affiliates disclaims beneficial ownership of Common Stock held
in Managed Accounts, and none of the Whitehall Affiliates has a "pecuniary
interest" in such Common Stock. In addition, according to the Krupp Schedule
13D and the Blackstone 13D, each of the Krupp Affiliates and the Blackstone
Affiliates disclaims beneficial ownership of Common Stock held in Managed
Accounts that may be deemed to be beneficially owned by any such deemed
group or by the Parent.
(10) Mr. deWilde directly owns 2,800 shares of Common Stock. In addition, Mr.
deWilde has the right to acquire 25,000 shares of Common Stock pursuant to
Options.
(11) Mr. Finnegan directly owns 700 shares of Common Stock. He disclaims
beneficial ownership of 300 shares of Common Stock owned by his wife. In
addition, Mr. Finnegan has the right to acquire 27,000 shares of Common
Stock pursuant to Options.
(12) Mr. Frew directly owns 43,117 shares of Common Stock. In addition, Mr. Frew
has the right to acquire 48,000 shares of Common Stock pursuant to Options.
(13) Mr. Goldberg owns no shares of Common Stock directly. Mr. Goldberg has the
right to acquire 22,000 shares of Common Stock pursuant to Options.
(14) Mr. Gorn owns 138,960 shares of Common Stock and directly owns 218,422
shares of OP Units in the Operating Partnership. Mr. Gorn's employment with
the Company was terminated as of February 26, 1999.
(15) According to a joint filing made by WREP, Westbrook Real Estate Partners
Management II, L.L.C. ("WREM II"), Westbrook Real Estate Fund II, L.P.,
Westbrook Real Estate Co-Investment Partnership II, L.P. ("WRECIP II"),
Holdings, Co-Holdings, Gregory J. Hartman, Paul D. Kazilionis, Jonathan H.
Paul and William H. Walton, III (collectively, the "Westbrook Affiliates")
on Schedule 13G made with the Commission on April 29, 1999 (the "Westbrook
Schedule 13G"), each of the Westbrook Affiliates has shared voting power
over 5,688,107 shares of Common Stock and dispositive power over 4,857,547
shares of Common Stock. Each Westbrook Affiliate, except Co-Holdings,
disclaims beneficial ownership of the Co-Holdings Conversion Shares (as
defined in the Westbrook 13G). Each Westbrook Affiliate, except Holdings,
disclaims ownership of the Holdings Conversion Shares (as defined in the
Westbrook 13G).
(16) According to information provided to the Company by Mr. Kazilionis, he owns
no shares of Common Stock directly, he has the right to acquire 5,000 shares
of Common Stock pursuant to Options, and he is the indirect beneficial owner
of the 2,082,883 shares of Preferred Stock held of record by Holdings and
254,117 shares of Preferred Stock held of record by Co-Holdings, by virtue
of being a managing principal of WREP, an affiliate of Holdings and
Co-Holdings. Mr. Kazilionis has shared voting and investment powers for
these shares. According to the Company's records, as of September 19, 1998,
these shares of Preferred Stock became convertible into shares of Common
Stock based on the conversion ratio in effect at the time of conversion. As
of August 4, 1999, Holdings has the right to acquire 4,323,232 shares of
Common Stock in exchange for its shares of Preferred Stock and Co-Holdings
has the right to acquire 527,445 shares of Common Stock in exchange for its
shares of Preferred Stock based on a conversion ratio of 2.0756.
116
<PAGE>
(17) According to the Krupp Schedule 13D, KGP-1 claims to have shared voting and
shared dispositive power over 3,744,066 shares of Common Stock consisting of
(i) 3,209,091 OP Units in the Operating Partnership owned of record by BCLP,
which are convertible on a one-for-one basis for shares of the Company's
Common Stock, or cash at the election of the Operating Partnership, and over
which KGP-1 has shared voting power and shared dispositive power; and (ii)
534,975 OP Units in the Operating Partnership owned of record by GN Limited
Partnership which are convertible on a one-for-one basis for shares of the
Company's Common Stock, or cash at the election of the Operating
Partnership, and over which KGP-1 has shared voting power and shared
dispositive power. According to the Krupp Schedule 13D, KGP-1 disclaims
beneficial ownership of Common Stock issuable upon the conversion of OP
Units because the Operating Partnership may elect to substitute cash in lieu
of causing the Company to issue such Common Stock.
(18) According to the Krupp Schedule 13D, KGP-2 claims to have shared voting and
shared dispositive power over 3,744,066 shares of Common Stock consisting of
(i) 3,209,091 OP Units in the Operating Partnership owned of record by BCLP,
which are convertible on a one-for-one basis for shares of the Company's
Common Stock, or cash at the election of the Operating Partnership, and over
which KGP-2 has shared voting power and shared dispositive power; and (ii)
534,975 OP Units in the Operating Partnership owned of record by GN Limited
Partnership which are convertible on a one-for-one basis for shares of the
Company's Common Stock, or cash at the election of the Operating
Partnership, and over which KGP-2 has shared voting power and shared
dispositive power. According to the Krupp Schedule 13D, KGP-2 disclaims
beneficial ownership of Common Stock issuable upon the conversion of OP
Units because the Operating Partnership may elect to substitute cash in lieu
of causing the Company to issue such Common Stock.
(19) According to the Krupp Schedule 13D, Douglas Krupp claims to have sole
voting and sole dispositive power over 10,100 shares of Common Stock of
which he is the direct beneficial owner. According to the Krupp Schedule
13D, Mr. Krupp claims to have shared voting and shared dispositive power
over 5,856,269 shares of Common Stock consisting of (i) 512,203 shares of
Common Stock owned of record by Berkshire Realty Advisors Limited
Partnership, as to which Mr. Krupp has shared voting and shared dispositive
power; (ii) 534,975 OP Units in the Operating Partnership owned of record by
GN Limited Partnership which are convertible on a one-for-one basis for
shares of the Company's Common Stock or cash, at the election of the
Operating Partnership, and over which Mr. Krupp has shared voting power and
shared dispositive power; (iii) 1,600,000 OP Units in the Operating
Partnership owned of record by Turtle Creek Associates Limited Partnership
which are convertible on a one-for-one basis for shares of the Company's
Common Stock, or cash at the election of the Operating Partnership, and over
which Mr. Krupp has shared voting power and shared dispositive power; and
(iv) 3,209,091 OP Units in the Operating Partnership owned of record by
BCLP, which are convertible on a one-for-one basis for shares of the
Company's Common Stock, or cash at the election of the Operating
Partnership, and over which Mr. Krupp has shared voting power and shared
dispositive power. According to the Krupp 13D, Douglas Krupp disclaims
beneficial ownership of Common Stock issuable upon the conversion of OP
Units because the Operating Partnership may elect to substitute cash in lieu
of causing the Company to issue such Common Stock. Also stated in the Krupp
Schedule 13D, although Mr. Krupp may be deemed to beneficially own 15,950
shares of Common Stock owned of record by Judy Krupp, Richard Krupp and Alex
Krupp such shares were excluded from the table and, pursuant to Rule 13d-4
of the Exchange Act, the filing of the Krupp Schedule 13D shall not be
construed as an admission that Douglas Krupp beneficially owns such shares.
(20) According to the Krupp Schedule 13D, George Krupp claims to have sole
voting and sole dispositive power over 15,000 shares of Common Stock of
which he is the direct beneficial owner. According to the Krupp Schedule
13D, Mr. Krupp claims to have shared voting and shared dispositive power
over 5,856,269 shares of Common Stock consisting of (i) 512,203 shares of
117
<PAGE>
Common Stock owned of record by Berkshire Realty Advisors Limited
Partnership, as to which Mr. Krupp has shared voting and shared dispositive
power; (ii) 534,975 OP Units in the Operating Partnership owned of record by
GN Limited Partnership which are convertible on a one-for-one basis for
shares of the Company's Common Stock or cash, at the election of the
Operating Partnership, and over which Mr. Krupp has shared voting power and
shared dispositive power; (iii) 1,600,000 OP Units in the Operating
Partnership owned of record by Turtle Creek Associates Limited Partnership
which are convertible on a one-for-one basis for shares of the Company's
Common Stock, or cash at the election of the Operating Partnership, and over
which Mr. Krupp has shared voting power and shared dispositive power; and
(iv) 3,209,091 OP Units in the Operating Partnership owned of record by
BCLP, which are convertible on a one-for-one basis for shares of the
Company's Common Stock, or cash at the election of the Operating
Partnership, and over which Mr. Krupp has shared voting power and shared
dispositive power. According to the Krupp Schedule 13D, George Krupp
disclaims beneficial ownership of Common Stock issuable upon the conversion
of OP Units because the Company may elect to substitute cash in lieu of
issuing such Common Stock. Also stated in the Krupp Schedule 13D, although
Mr. Krupp may be deemed to beneficially own 26,160 shares of Common Stock
owned of record by Elizabeth Krupp, Daniel Krupp and Michael Krupp such
shares were excluded from the table and, pursuant to Rule 13d-4 of the
Exchange Act, the filing of the Krupp Schedule 13D shall not be construed as
an admission that George Krupp beneficially owns such shares.
(21) Mr. Marshall directly owns 90,804 shares of Common Stock. He disclaims
beneficial ownership of 6,343 shares of Common Stock owned by various
members of his family. In addition, Mr. Marshall has the right to acquire
312,600 shares of Common Stock pursuant to Options.
(22) According to a joint filing made by Morgan Stanley Dean Witter & Co.
("MSDW") and Morgan Stanley Dean Witter Investment Management Inc. ("MSDWI")
on Schedule 13G filed with the SEC on February 8, 1999, MSDW has shared
voting and dispositive power over 1,995,300 shares of Common Stock and MSDWI
has shared voting and shared dispositive power over 1,958,700 shares of
Common Stock. In said filing, MSDW and MSDWI further state that they are
Investment Advisers registered under Section 203 of the Investment Advisers
Act of 1940, as amended, and that MSDWI is a wholly-owned subsidiary of
MSDW. According to the filing, MSDWI manages accounts on a discretionary
basis and said accounts have the right to receive or the power to direct the
receipt of dividends from, or the proceeds from, the sale of such
securities. The filing further states that no such account holds more than
5% of the class.
(23) Mr. Olney directly owns 44,984 shares of Common Stock. In addition, Mr.
Olney has the right to acquire 50,000 shares of Common Stock pursuant to
Options.
(24) Ms. Pritchard directly owns 44,228 shares of Common Stock. In addition, Ms.
Pritchard has the right to acquire 54,000 shares of Common Stock pursuant to
Options.
(25) Mr. Roskind directly owns 20,000 shares of Common Stock. In addition, Mr.
Roskind has the right to acquire 23,000 shares of Common Stock pursuant to
Options.
(26) Mr. Solomon owns no shares of Common Stock directly. Mr. Solomon has the
right to acquire 5,000 shares of Common Stock pursuant to Options.
(27) All Directors and Executive Officers as a group directly or indirectly own
918,570 shares of Common Stock. In addition, all Directors and Officers as a
group have the right to acquire shares of Common Stock pursuant to 720,600
Options. All Directors and Executive Officers as a group, directly or
indirectly own 5,562,488 OP Units. Typically, holders of OP Units acquire
conversion rights one year and ten days from the date of issuance whereupon
the OP Units are redeemable on a one-for-one basis for shares of Common
Stock or at the Company's election, for cash. As of August 4, 1999,
5,562,488 of these OP Units have acquired conversion rights or will acquire
such
118
<PAGE>
rights within 60 days thereafter. All Directors and Executive Officers as a
group, directly or indirectly own 2,082,883 shares of Preferred Stock held
by Holdings and the 254,117 shares of Preferred Stock held by Co-Holdings,
by virtue of Mr. Kazilionis' position as a managing principal of WREP.
According to the Westbrook Schedule 13G, Mr. Kazilionis has shared
dispositive power over 5,688,107 shares of Common Stock. Accordingly, all
Directors and Executive Officers have shared voting and dispositive power
over 5,688,107 shares of Common Stock.
(28) The Company's Certificate of Incorporation contains provisions restricting
the rights of persons who hold more than 9.8% of the outstanding Common
Stock. Although OP Units generally are convertible on a one-for-one basis
for shares of Common Stock or cash at the election of the Operating
Partnership, the Operating Partnership's partnership agreement provides that
if a holder of OP Units requests the conversion of such holder's OP Units
and such conversion would result in such holder owning in excess of 9.8% of
the outstanding Common Stock, the conversion request of such holder will
automatically be deemed to be modified such that the number of shares to be
issued to such holder will not result in such holder owning in excess of
9.8% of the outstanding Common Stock.
119
<PAGE>
PROPOSALS BY STOCKHOLDERS OF THE COMPANY
If the Merger is consummated, there will be no public Stockholders of the
Company and no public participation in any future meetings of Stockholders of
the Company. However, if the Merger is not consummated, the Company intends to
hold its 1999 Annual Meeting of Stockholders as promptly as reasonably
practicable. In such case, the Company's Stockholders would continue to be
entitled to attend and participate in the Company's Stockholder meetings.
The Company's By-Laws provide that any proposals by Stockholders intended to
be presented at the 1999 Annual Meeting of Stockholders must be made in writing
to the Secretary of the Company and delivered to, or mailed and received at, the
principal executive offices of the Company not less than 50 days nor more than
150 days prior to the 1999 Annual Meeting; provided, however, that, if the
Company gives less than 70 days' notice or prior public disclosure of the date
of the 1999 Annual Meeting, notice of proposals must be delivered or received:
- in the case of nominations of candidates for election to the Company's
Board of Directors, not later than the close of business on the tenth day
following the earlier of (a) the day on which such notice of the date of
the 1999 Annual Meeting was mailed or (b) the day on which such public
disclosure was made, and
- in the case of other matters to be acted upon, not later than the close of
business on the fifteenth day following the day on which such notice of
the 1999 Annual Meeting was mailed.
Any such notice must be sent to the Company's principal address and in the
case of matters other than the nomination of directors must include a
description of the proposed business, the reasons therefor and other specific
matters.
Because the date of the Company's 1999 Annual Meeting will have been changed
by more than 30 days from the date contemplated by the proxy statement for the
Company's 1998 Annual Meeting, the regulations of the Commission provide that
any proposals by Stockholders intended to be presented and included in the
Company's proxy materials must be received by the Secretary of the Company, at
the Company's principal address, within a reasonable time before the Company
begins to print and mail its proxy materials in connection with the 1999 Annual
Meeting. The Company will inform Stockholders of the date by which such
proposals must be received.
Any Stockholder desiring a copy of the Company's By-Laws, which include
provisions governing matters to be considered at Stockholder meetings, will be
furnished one without charge upon written request of the Secretary of the
Company.
INDEPENDENT ACCOUNTANTS
The consolidated financial statements and financial statement schedule of
the Company appearing in this Proxy Statement have been audited by
PricewaterhouseCoopers LLP, independent auditors, as set forth in their report
included herein. Such consolidated financial statements and financial statement
schedule are included herein and incorporated herein by reference. It is
expected that representatives of PricewaterhouseCoopers LLP will be present at
the Special Meeting, both to respond to appropriate questions of Stockholders
and to make a statement if they so desire.
120
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
As required by law, the Company files reports, proxy statements and other
information with the Commission. Because the Merger is a "going private"
transaction, the Company, the Parent and the Acquiror have filed a Rule 13e-3
Transaction Statement on Schedule 13E-3 with respect to the Merger. The Schedule
13E-3 and such reports, proxy statements and other information contain
additional information about the Company. You can inspect and copy these
materials at the public reference facilities maintained by the Commission at
Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the following
Regional Offices of the Commission: 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661; and 7 World Trade Center, Suite 1300, New York, New
York 10048. For further information concerning the Commission's public reference
rooms, you may call the Commission at 1-800-SEC-0330. Some of this information
may also be accessed on the World Wide Web through the Commission's Internet
address at "http://www.sec.gov." The Common Stock is listed on the NYSE and the
materials described above may also be inspected at the NYSE's offices, 20 Broad
Street, New York, New York 10005.
You should rely only on the information contained in (or incorporated by
reference into) this Proxy Statement in connection with your consideration of
the Merger Proposal. The Company has not authorized anyone to give any
information different from the information contained in (or incorporated by
reference into) this Proxy Statement. This Proxy Statement is dated August __,
1999. You should not assume that the information contained in this Proxy
Statement is accurate as of any later date, and the mailing of this Proxy
Statement to Stockholders shall not create any implication to the contrary.
OTHER MATTERS
The Board of Directors does not know of any matter other than that described
in this Proxy Statement that will be presented for action at the Special
Meeting. If other matters properly come before the meeting, the persons named as
proxies intend to vote the shares they represent in accordance with their
discretion.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with the Commission
(File No. 1-10660) are incorporated herein by reference:
(a) Annual Report on Form 10-K for the year ended December 31, 1998 as filed
on March 19, 1999, as amended by Annual Report on Form 10-K/A as filed on
May 7, 1999;
(b) Current Report on Form 8-K as filed on April 15, 1999;
(c) Quarterly Report on Form 10-Q for the quarter ended March 31, 1999 as
filed on May 17, 1999;
(d) Current Report on Form 8-K as filed on July 22, 1999; and
(e) Quarterly Report on Form 10-Q for the quarter ended June 30, 1999 as
filed on August 16, 1999.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date hereof and prior to the date of
the Special Meeting or any adjournment or postponement thereof shall be deemed
to be incorporated by reference herein and made a part hereof from the date of
the filing of such documents. Any statement contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Proxy Statement to the extent that a
statement contained herein or in any other document subsequently filed with the
Commission which also is deemed to be incorporated by reference herein modified
or supersedes such statement. Any such statement so
121
<PAGE>
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Proxy Statement.
The Company will provide without charge to each person to whom a copy of
this Proxy Statement is delivered, upon the written or oral request of such
person, a copy of any or all of the documents incorporated by reference herein
(not including the exhibits to such documents, unless such exhibits are
specifically incorporated by reference in such documents). Requests for such
copies should be directed to: Berkshire Realty Company, Inc., One Beacon Street,
Suite 1550, Boston, Massachusetts 02108, Attention: Marianne Pritchard,
Executive Vice President and Chief Financial Officer, telephone (888) 867-0100.
By Order of the Board of Directors,
Scott C. Spelfogel
SECRETARY
, 1999
122
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
------------------------
CONSOLIDATED FINANCIAL STATEMENTS, SCHEDULES AND
SUMMARY QUARTERLY FINANCIAL INFORMATION
FOR THE YEAR ENDED DECEMBER 31, 1998
F-1
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS, SCHEDULES AND
SUMMARY QUARTERLY FINANCIAL INFORMATION
<TABLE>
<S> <C>
Report of Independent Accountants................................................ F-3
Consolidated Balance Sheets at December 31, 1997 and 1998........................ F-4
Consolidated Statements of Operations for the Years Ended December 31, 1998,
1997 and 1996.................................................................. F-5
Consolidated Statements of Changes in Shareholders' Equity for the Years Ended
December 31, 1997, 1998 and 1996............................................... F-6
Consolidated Statements of Cash Flows for the Years Ended December 31, 1998,
1997 and 1996.................................................................. F-7-F-8
Notes to Consolidated Financial Statements....................................... F-9-F-33
Schedule III--Real Estate and Accumulated Depreciation........................... F-34-F-37
Summary Quarterly Financial Information (Unaudited).............................. F-38
</TABLE>
All other schedules are omitted as they are not applicable or not required,
or the information is provided in the consolidated financial statements or the
notes thereto.
F-2
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Shareholders of
Berkshire Realty Company, Inc. and Subsidiaries:
In our opinion, the consolidated financial statements and the financial
statement schedule listed in the accompanying index present fairly, in all
material respects, the financial position of Berkshire Realty Company, Inc. and
Subsidiaries (the "Company") at December 31, 1998 and December 31, 1997, and the
results of their operations and their cash flows for each of the three years in
the period ended December 31, 1998, in conformity with generally accepted
accounting principles. These financial statements and financial statement
schedule are the responsibility of the Company's management; our responsibility
is to express an opinion on these financial statements and financial statement
schedule based on our audits. We conducted our audits of these statements in
accordance with generally accepted auditing standards which require that we plan
and perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the financial
statements, assessing the accounting principles used and significant estimates
made by management, and evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for the opinion expressed
above.
/s/ PricewaterhouseCoopers LLP
Boston, Massachusetts
January 25, 1999, except
for Note W, for which the
date is March 5, 1999
F-3
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
DECEMBER 31, 1998 AND 1997
<TABLE>
<CAPTION>
1998 1997
---------------- --------------
<S> <C> <C>
ASSETS
Real estate assets: (Note F)
Multifamily apartment communities, net of accumulated depreciation........... $ 919,486,703 $ 715,696,151
Land and construction-in-progress............................................ 10,974,377 15,185,969
Land held for future development............................................. 5,657,038 5,818,105
Mortgage loan receivable, net of purchase discounts (Note H)................. 2,376,227 2,323,285
Investments in unconsolidated joint ventures (Note G)........................ -- 15,618,657
Retail centers held for sale, net of accumulated depreciation................ -- 14,404,782
---------------- --------------
Total real estate assets................................................... 938,494,345 769,046,949
Cash and cash equivalents...................................................... 12,366,880 9,859,110
Mortgage-backed securities, net ("MBS") (Note I)............................... 4,936,979 7,511,789
Note receivable (Note J)....................................................... 7,500,000 7,500,000
Escrows........................................................................ 16,305,255 15,088,587
Deferred expenses and other assets............................................. 19,854,353 14,932,272
Workforce and other intangible assets, net of accumulated amortization of
$22,195,388 and 9,163,194, respectively (Notes C and D)...................... 9,449,030 22,481,224
---------------- --------------
Total assets............................................................... $ 1,008,906,842 $ 846,419,931
---------------- --------------
---------------- --------------
LIABILITIES AND SHAREHOLDERS' EQUITY
Liabilities:
Mortgage notes payable (Note M).............................................. $ 426,236,427 $ 368,810,004
Credit agreement (Note K).................................................... 135,100,000 12,000,000
Construction loan (Note L)................................................... 11,362,891 316,786
Deposits and prepaid rents................................................... 8,309,738 4,888,022
Accrued real estate taxes, insurance, other liabilities and accounts payable
(Note Q)................................................................... 25,218,826 17,073,179
---------------- --------------
Total liabilities.......................................................... 606,227,882 403,087,991
---------------- --------------
Minority interest in Operating Partnership (Note N)............................ 69,661,451 75,137,066
Commitments and contingencies (Notes E and Q).................................. -- --
Shareholders' equity:
Preferred stock ("Preferred Shares"), $0.01 par value; 60,000,000 shares
authorized, 2,737,000 shares issued (Note U)............................... 27,370 27,370
Common stock ("Shares"), $0.01 par value; 140,000,000 Shares authorized and
37,219,897 and 36,841,098 Shares issued, respectively (Note U)............. 372,199 368,411
Additional paid-in capital................................................... 375,186,299 394,838,797
Accumulated deficit.......................................................... (38,550,284) (24,396,629)
Loans receivable--officers (Note P).......................................... (2,275,000) (900,000)
Less common stock in treasury at cost (506,497 Shares)....................... (1,743,075) (1,743,075)
---------------- --------------
Total shareholders' equity................................................. 333,017,509 368,194,874
---------------- --------------
Total liabilities and shareholders' equity................................. $ 1,008,906,842 $ 846,419,931
---------------- --------------
---------------- --------------
</TABLE>
The accompanying Notes are an integral part of the Consolidated Financial
Statements.
F-4
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
FOR THE YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996
<TABLE>
<CAPTION>
1998 1997 1996
--------------- -------------- --------------
<S> <C> <C> <C>
Revenue:
Rental........................................................ $ 175,965,070 $ 109,973,608 $ 89,450,647
Management fees and reimbursements (Note D)................... 3,709,023 3,157,516 --
Interest from mortgage loan and note receivable
(Notes H and J)............................................. 1,190,985 608,825 1,876,519
Interest from MBS (Note I).................................... 573,923 765,196 942,191
Other interest................................................ 1,345,996 993,917 732,309
--------------- -------------- --------------
Total revenue............................................... 182,784,997 115,499,062 93,001,666
--------------- -------------- --------------
Expenses:
Property operating (Note O)................................... 40,916,441 25,646,048 21,424,717
Repairs and maintenance....................................... 12,157,839 8,064,849 6,647,344
Real estate taxes............................................. 16,832,011 10,042,100 8,653,898
Property management fees to an affiliate (Note D)............. 15,304 902,931 4,324,843
Property management operations................................ 7,689,765 5,564,851 1,302,352
Interest (Notes K, L and M)................................... 38,801,288 24,005,605 20,500,533
Depreciation and amortization................................. 57,794,479 35,272,775 29,050,960
Amortization of workforce acquired (Notes C and D)............ 13,032,194 8,042,554 1,120,640
General and administrative (Notes C and O).................... 5,476,948 5,065,015 3,632,078
State and corporate franchise taxes........................... 174,205 334,003 367,563
Professional fees............................................. 709,297 345,234 254,000
Costs associated with evaluation of strategic alternatives.... 1,470,236 -- --
Non-recurring charges......................................... -- -- 441,783
Costs associated with Advisor Transaction (Note C)............ -- 2,400,000 --
Provision for losses on real estate investments............... -- 1,850,000 7,500,000
Asset management fees to an affiliate (Note C)................ -- -- 392,636
--------------- -------------- --------------
Total expenses.............................................. 195,070,007 127,535,965 105,613,347
--------------- -------------- --------------
Loss from operations before joint venture income (loss), gains
on sales of assets, minority interest and extraordinary
items....................................................... (12,285,010) (12,036,903) (12,611,681)
Joint venture income (loss)................................... 132,454 (4,910,021) (3,008,587)
Gains on sales of assets, net................................. 1,264,920 6,454,717 58,263
Minority interest in Operating Partnership (Note N)........... 3,369,786 2,153,506 1,403,000
--------------- -------------- --------------
Loss before extraordinary items............................... (7,517,850) (8,338,701) (14,159,005)
Extraordinary items, net of minority interest (Note M)........ (477,555) (90,345) (149,272)
--------------- -------------- --------------
Net loss...................................................... (7,995,405) (8,429,046) (14,308,277)
Income allocated to preferred shareholders.................... (6,158,250) (1,659,306) --
--------------- -------------- --------------
Net loss allocated to common shareholders..................... $ (14,153,655) $ (10,088,352) $ (14,308,277)
--------------- -------------- --------------
--------------- -------------- --------------
Earnings per common share (basic and diluted) (Note R): Net loss
allocated to common shareholders before extraordinary items... $ (.37) $ (.37) $ (.56)
--------------- -------------- --------------
--------------- -------------- --------------
Extraordinary items, net...................................... $ (.02) $ -- $ --
--------------- -------------- --------------
--------------- -------------- --------------
Net loss allocated to common shareholders..................... $ (.39) $ (.37) $ (.56)
--------------- -------------- --------------
--------------- -------------- --------------
Weighted average shares....................................... 36,684,985 27,099,522 25,393,147
--------------- -------------- --------------
--------------- -------------- --------------
</TABLE>
The accompanying Notes are an integral part of the Consolidated Financial
Statements.
F-5
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CHANGES IN SHAREHOLDERS' EQUITY
FOR THE YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996
<TABLE>
<CAPTION>
SERIES 1997-A
CONVERTIBLE
PREFERRED STOCK COMMON STOCK
AT PAR AT PAR ADDITIONAL
---------------------- -------------------- PAID-IN
SHARES AMOUNT SHARES AMOUNT CAPITAL
--------- ----------- --------- --------- -----------
<S> <C> <C> <C> <C> <C>
Balance, December 31, 1995................................... -- $ -- 25,392,951 $ 258,994 $262,271,698
Net loss..................................................... -- -- -- -- --
Proceeds from the exercise of stock warrants................. -- -- 417 4 5,880
Non-employee stock option grants............................. -- -- -- -- 22,584
Common dividends............................................. -- -- -- -- (22,853,892)
--------- ----------- --------- --------- -----------
Balance, December 31, 1996................................... -- -- 25,393,368 258,998 239,446,270
Net loss..................................................... -- -- -- -- --
Issuance of Preferred Shares (Note U)........................ 2,737,000 27,370 -- -- 65,849,295
Preferred dividends.......................................... -- -- -- -- --
Non-employee stock option grants (Note P).................... -- -- -- -- 22,584
Issuance of Common Shares (Note U)........................... -- -- 10,403,919 104,040 107,704,970
Conversion of Units to Common Shares (Note N)................ -- -- 448,863 4,489 4,246,715
Stock purchase loan, net (Note P)............................ -- -- 86,956 869 999,131
Proceeds from the exercise of stock warrants................. -- -- 1,495 15 17,611
Common dividends............................................. -- -- -- -- (23,447,779)
--------- ----------- --------- --------- -----------
Balance, December 31, 1997................................... 2,737,000 $ 27,370 36,334,601 $ 368,411 $394,838,797
Net Loss..................................................... -- -- -- -- --
Preferred dividends.......................................... -- -- -- -- --
Stock issuance costs......................................... -- -- -- -- (407,746)
Conversion of Units to Common Shares......................... -- -- 53,887 539 526,244
Non-employee stock option grants (Note P).................... -- -- -- -- 9,000
Shares issued in satisfaction of note payable................ -- -- 189,332 1,893 2,128,107
Stock purchase loans, net (Note P)........................... -- -- 126,984 1,270 1,498,730
Proceeds from the exercise of stock warrants................. -- -- 8,596 86 101,261
Common dividends............................................. -- -- -- -- (35,226,070)
Adjustment for Minority Interest ownership of Operating
Partnership (Note N)....................................... -- -- -- -- 11,717,976
--------- ----------- --------- --------- -----------
Balance, December 31, 1998................................... 2,737,000 $ 27,370 36,713,400 $ 372,199 $375,186,299
--------- ----------- --------- --------- -----------
--------- ----------- --------- --------- -----------
<CAPTION>
LOANS TREASURY
ACCUMULATED RECEIVABLE- STOCK AT
DEFICIT OFFICERS COST TOTAL
------------ ----------- ---------- -----------
<S> <C> <C> <C> <C>
Balance, December 31, 1995................................... $ -- $ -- $(1,743,075) $260,787,617
Net loss..................................................... (14,308,277) -- -- (14,308,277)
Proceeds from the exercise of stock warrants................. -- -- -- 5,884
Non-employee stock option grants............................. -- -- -- 22,584
Common dividends............................................. -- -- -- (22,853,892)
------------ ----------- ---------- -----------
Balance, December 31, 1996................................... (14,308,277) -- (1,743,075) 223,653,916
Net loss..................................................... (8,429,046) -- -- (8,429,046)
Issuance of Preferred Shares (Note U)........................ -- -- -- 65,876,665
Preferred dividends.......................................... (1,659,306) -- -- (1,659,306)
Non-employee stock option grants (Note P).................... -- -- -- 22,584
Issuance of Common Shares (Note U)........................... -- -- -- 107,809,010
Conversion of Units to Common Shares (Note N)................ -- -- -- 4,251,204
Stock purchase loan, net (Note P)............................ -- (900,000) -- 100,000
Proceeds from the exercise of stock warrants................. -- -- -- 17,626
Common dividends............................................. -- -- -- (23,447,779)
------------ ----------- ---------- -----------
Balance, December 31, 1997................................... ($24,396,629) $(900,000) $(1,743,075) $368,194,874
Net Loss..................................................... (7,995,405) -- -- (7,995,405)
Preferred dividends.......................................... (6,158,250) -- -- (6,158,250)
Stock issuance costs......................................... -- -- -- (407,746)
Conversion of Units to Common Shares......................... -- -- -- 526,783
Non-employee stock option grants (Note P).................... -- -- -- 9,000
Shares issued in satisfaction of note payable................ -- -- -- 2,130,000
Stock purchase loans, net (Note P)........................... -- (1,375,000) -- 125,000
Proceeds from the exercise of stock warrants................. -- -- -- 101,347
Common dividends............................................. -- -- -- (35,226,070)
Adjustment for Minority Interest ownership of Operating
Partnership (Note N)....................................... -- -- -- 11,717,976
------------ ----------- ---------- -----------
Balance, December 31, 1998................................... ($38,550,284) ($2,275,000) $(1,743,075) $333,017,509
------------ ----------- ---------- -----------
------------ ----------- ---------- -----------
</TABLE>
The accompanying Notes are an integral part of the Consolidated Financial
Statements.
F-6
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996
<TABLE>
<CAPTION>
1998 1997 1996
--------------- --------------- ---------------
<S> <C> <C> <C>
Cash flows from operating activities:
Net loss................................................... $ (7,995,405) $ (8,429,046) $ (14,308,277)
Adjustments to reconcile net loss to net cash provided by
operating activities:
Depreciation and amortization............................ 57,794,479 35,272,775 29,050,960
Amortization of workforce and other intangible assets.... 13,032,194 8,042,554 1,120,640
Costs associated with Advisor
Transaction................................................ -- 2,400,000 --
Provision for losses on real estate investments............ -- 1,850,000 7,500,000
Joint venture (income) loss................................ (132,454) 4,910,021 3,008,587
Distributions received from joint venture earnings......... 132,454 -- --
Gains on sales of assets................................... (1,264,920) (6,454,717) (58,263)
Non-employee stock options................................. 9,000 22,584 22,584
Stock purchase loan forgiveness............................ 125,000 100,000 --
Amortization of purchase discounts......................... (155,647) (144,558) (511,976)
Minority interest in Operating Partnership................. (3,369,786) (2,153,506) (1,403,000)
Write-off of deferred financing costs...................... 422,490 24,828 149,272
Amortization of deferred financing costs................... 1,581,824 1,427,429 1,052,283
Increase in escrows and other assets....................... (3,663,714) (4,242,387) (2,470,167)
Increase in accrued real estate taxes, other liabilities
and accounts payable..................................... 9,075,647 3,145,212 3,952,223
Increase in deposits and prepaid rents..................... 3,421,716 2,444,306 399,924
--------------- --------------- ---------------
Net cash provided by operating activities................ 69,012,878 38,215,495 27,504,790
--------------- --------------- ---------------
Cash flows from investing activities:
Costs to acquire properties................................ (104,161,523) (96,589,327) (37,894,563)
Land acquisition and construction-in-progress.............. (17,161,563) (16,207,482) (13,512,645)
Proceeds from sales of properties.......................... 17,179,783 38,415,017 19,580,079
Recurring capital expenditures............................. (6,865,814) (4,569,573) (4,397,131)
Rehabilitation and non-recurring capital expenditures...... (31,605,291) (15,642,973) (15,900,996)
Notes receivable........................................... -- (7,500,000) --
Distributions from the sale of joint venture asset, net.... 14,883,968 7,945,667 --
Distributions received from joint ventures in excess of
earnings................................................. 641,697 1,481,615 2,644,533
Contributions to joint venture............................. -- (2,150,000) --
Proceeds from the payoff of mortgage loans................. -- -- 15,324,802
Principal collections on MBS............................... 2,594,961 1,733,674 2,360,929
Principal collections on mortgage loans.................... 82,554 1,903,007 1,039,898
Escrows established at acquisition of properties........... (2,512,774) (4,755,629) (5,189,961)
Cost to acquire workforce and intangible assets............ -- (559,239) (447,679)
--------------- --------------- ---------------
Net cash used for investing activities................... (126,924,002) (96,495,243) (36,392,734)
--------------- --------------- ---------------
</TABLE>
The accompanying Notes are an integral part of the Consolidated Financial
Statements.
F-7
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS (CONTINUED)
FOR THE YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996
<TABLE>
<CAPTION>
1998 1997 1996
--------------- --------------- ---------------
<S> <C> <C> <C>
Cash flows from financing activities:
Advances under credit agreements........................... 123,100,000 19,400,000 48,970,000
Advances under construction loan........................... 11,046,105 316,786 --
Payments on credit agreements.............................. -- (80,115,000) (8,050,000)
Payment on repurchase agreement............................ -- (9,300,000) (1,650,000)
Payment of financing costs................................. (2,371,101) (501,934) (1,222,170)
Prepayment of mortgage notes payable....................... (17,433,697) -- --
Principal payments on mortgage notes payable............... (4,142,897) (7,760,525) (8,591,947)
Proceeds from the issuance of preferred stock, net of
discounts and offering costs............................. -- 65,876,665 --
Proceeds from issuance of common stock, net of discounts
and offering costs....................................... (407,746) 103,109,010 --
Proceeds from the exercise of stock warrants............... 101,347 17,626 5,884
Dividends to preferred shareholders........................ (6,158,250) (1,659,306) --
Dividends to common shareholders........................... (35,226,070) (23,447,779) (22,853,892)
Distributions to minority unitholders...................... (8,088,797) (4,812,638) (1,846,688)
--------------- --------------- ---------------
Net cash provided by financing activities................ 60,418,894 61,122,905 4,761,187
--------------- --------------- ---------------
Net increase (decrease) in cash and cash equivalents......... 2,507,770 2,843,157 (4,126,757)
Cash and cash equivalents, beginning of year................. 9,859,110 7,015,953 11,142,710
--------------- --------------- ---------------
Cash and cash equivalents, end of year....................... $ 12,366,880 $ 9,859,110 $ 7,015,953
--------------- --------------- ---------------
--------------- --------------- ---------------
Supplemental cash flow disclosure:
Cash paid for interest during year......................... $ 40,175,873 $ 24,327,983 $ 20,143,571
--------------- --------------- ---------------
--------------- --------------- ---------------
Interest capitalized during year........................... $ 1,469,078 $ 777,159 $ 514,258
--------------- --------------- ---------------
--------------- --------------- ---------------
Supplemental disclosure of non-cash investing and financing
activities:
Property acquisitions........................................ $ (201,505,018) $ (304,798,057) $ (112,964,195)
Debt assumed in property acquisitions........................ 79,003,017 165,549,922 53,196,934
Units issued for property acquisitions (Notes E and F)....... 18,340,478 29,728,045 21,872,698
Shares issued for property acquisitions (Note E)............. -- 4,700,000 --
Joint venture distribution of property, net.................. -- 8,230,763 --
--------------- --------------- ---------------
Cash to acquire property................................... $ (104,161,523) $ (96,589,327) $ (37,894,563)
--------------- --------------- ---------------
--------------- --------------- ---------------
Units issued for workforce and other intangible assets
acquired (Notes C and D)................................... $ -- $ 17,637,500 $ 13,000,000
--------------- --------------- ---------------
--------------- --------------- ---------------
Units issued for Advisor benchmarks (Note C)................. $ -- $ 2,400,000 $ --
--------------- --------------- ---------------
--------------- --------------- ---------------
Conversion of Units to Shares................................ $ 526,783 $ 4,251,204 $ --
--------------- --------------- ---------------
--------------- --------------- ---------------
Shares issued for stock purchase loans....................... $ 1,500,000 $ 1,000,000 $ --
--------------- --------------- ---------------
--------------- --------------- ---------------
Shares issued in satisfaction of note payable................ $ 2,130,000 $ -- $ --
--------------- --------------- ---------------
--------------- --------------- ---------------
Reclassification of construction in progress to multifamily
apartment complexes........................................ $ 20,116,588 $ 1,571,216 $ 10,888,961
--------------- --------------- ---------------
--------------- --------------- ---------------
</TABLE>
The accompanying Notes are an integral part of the Consolidated Financial
Statements.
F-8
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
A. ORGANIZATION
Berkshire Realty Company, Inc. and Subsidiaries (the "Company") was formed
on April 26, 1990 by filing a certificate of incorporation in the State of
Delaware. The Company commenced operations on June 27, 1991, as an equity real
estate investment trust ("REIT"). The principal business of the Company is the
acquisition, renovation, rehabilitation, development and operation of
multifamily apartment communities located in Florida, Texas and the Mid-Atlantic
and Southeast regions of the United States.
The Company was restructured to an umbrella partnership real estate
investment trust ("UPREIT") on May 1, 1995, when the Company's assets, subject
to liabilities, were transferred to a newly formed subsidiary ("Operating
Partnership") of which the Company is a Special Limited Partner and owns 100% of
the stock of Berkshire Apartments, Inc., the general partner. Upon transfer of
its net assets, the Company was issued 25,392,452 units of the Operating
Partnership ("Units") which was equal to the number of shares outstanding on May
1, 1995.
In connection with the organization of the Operating Partnership, on May 1,
1995, an affiliate of Berkshire Realty Advisors Limited Partnership, the
Company's former advisor, contributed $5,000 and River Oaks Apartments, subject
to mortgage debt of $5.4 million, at a valuation of $10,500,000. The seller
received 534,975 Units in the Operating Partnership ("Minority Interest") valued
at $9.50 per Unit or $5.1 million, in exchange for its interest in the property.
On March 1, 1996, the Company became self-administered when it acquired the
assembled workforce and other assets of Berkshire Realty Advisors Limited
Partnership (the "Advisor"), an affiliate of a director of the Company, which
provided advisory and development services to the Company (the "Advisor
Transaction"). In exchange for the assets acquired the Company issued 1.3
million Units of the Operating Partnership. The transaction was valued at $13
million, which together with related costs, was recorded as an intangible asset
associated with the workforce acquired. If certain share price benchmarks are
achieved during a six-year period, $7.2 million of additional Units may be
issued. During 1997, the $11.00 and $12.00 share price benchmarks were achieved
and an additional 209,091 Units were issued at a value of $2.4 million. (See
Note C to the Consolidated Financial Statements).
Property management services for the Company's multifamily assets were
performed by an affiliate of certain directors and officers of the Company until
February 28, 1997 when the Company acquired the established workforce and other
assets of the affiliated company for 1.7 million Units (the "Property Manager"
or "Property Manager Transaction"). The transaction was valued at $17.6 million
(based on a $10.375 share price) and was recorded on the balance sheet of the
Company as an intangible asset associated with the third-party property
management contracts and the acquisition of a workforce.
At the time of the acquisition, the Property Manager managed 57 apartment
communities, including the Company's 35 assets, and employed approximately 85
professionals, excluding site employees. As a result of this transaction, the
Company ceased payment of management fees and reimbursements to the affiliate
for the management operations of its multifamily portfolio. In addition, the
Company acquired 22 third-party management contracts, primarily with
partnerships affiliated with certain directors and officers of the Company,
which generate management fee and reimbursement revenue. (See Note D to the
Consolidated Financial Statements).
F-9
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
A. ORGANIZATION (CONTINUED)
In addition to the three transactions mentioned above, the Company has
utilized its UPREIT structure to acquire an additional 39 multifamily
communities since 1995. All UPREIT transactions have increased the ownership of
the Operating Partnership by minority unitholders ("Minority Interest") to 20.8%
at December 31, 1998, which included a 14.0% ownership by companies affiliated
with a director and officers of the Company. The Company directly or indirectly
owned the remaining 79.2% of the Operating Partnership. The Company has several
wholly-owned qualifying REIT subsidiaries which were formed in connection with
the UPREIT transaction or for financing purposes and are consolidated in the
accompanying financial statements.
The Company is authorized to issue up to 140,000,000 shares of common stock,
$0.01 par value per share ("Shares"). The Company is also authorized to issue up
to 60,000,000 shares of preferred stock, $0.01 par value, which may be issued in
multiple classes or series ("Preferred Shares"). The Board is authorized to
determine the rights, preferences and privileges of the preferred stock
including the number of shares constituting any such series and the designation
thereof, without any further vote or action by the shareholders. The Company's
outstanding Shares are publicly traded on the New York Stock Exchange under the
symbol "BRI".
The Company has an infinite life; however, the Company's Certificate of
Incorporation, as amended, required the Company's Board of Directors (the
"Board") to prepare and submit a Plan of Liquidation to the Shareholders on or
before December 31, 1998, together with a recommendation by its Board of
Directors whether to adopt or reject the Plan of Liquidation. The Plan of
Liquidation will become effective only if approved by shareholders holding a
majority of the shares outstanding at the time of the vote.
In May, 1998, the Company began the process of evaluating its strategic
alternatives which included the potential sale or merger of the Company or the
adoption of a Plan of Liquidation.
On December 31, 1998, the Company filed proxy materials related to a Plan of
Liquidation with the Securities and Exchange Commission. Included in the proxy
was a recommendation by the Board of Directors that shareholders vote against
approval of the Plan of Liquidation because, in the opinion of the Board, other
alternatives available to the Company would likely produce greater value for the
shareholders.
In the first quarter of 1999, as a result of the process initiated by the
Board, the Company received several offers to acquire the Company. Among these
offers was one from a group that included Douglas Krupp, the Chairman of the
Board of the Company, to acquire the Company at a price of $11.05 per share of
Common Stock. A special committee of disinterested directors established by the
Board to review and negotiate these offers advised this group that the price of
$11.05 per share was insufficient. This group subsequently revised its offer to
$12.05 per share of Common Stock. The special committee of the Board is
continuing to review and negotiate the offers the Company received. There can be
no assurance that any of these offers will result in the consummation of the
sale of the Company.
F-10
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
B. SIGNIFICANT ACCOUNTING POLICIES
BASIS OF PRESENTATION
The accompanying Consolidated Financial Statements include the consolidated
accounts of the Company, the Operating Partnership and the subsidiaries of the
Company and the Operating Partnership.
All significant intercompany balances have been eliminated in consolidation.
The Consolidated Financial Statements of the Company have been adjusted for the
minority interest of unitholders in the Operating Partnership.
ESTIMATES AND ASSUMPTIONS
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amount of and disclosure related to assets
and liabilities, contingent assets and liabilities and revenues and expenses.
Actual results could differ from those estimates.
CASH AND CASH EQUIVALENTS
The Company includes all short-term investments with maturities of three
months or less at the date of acquisition in cash and cash equivalents. The
carrying value of these investments approximated market at December 31, 1998 and
1997.
The Company invests its cash primarily in money market funds with commercial
banks. The Company has not experienced any losses to date on its invested cash.
ESCROWS
Escrows include amounts established pursuant to certain debt agreements for
real estate taxes, insurance and capital improvements.
REAL ESTATE ASSETS AND DEPRECIATION
Expenditures related to the acquisition, improvement and development of real
estate assets are capitalized at cost. Upon acquisition of a real estate asset,
expenditures to remedy deferred maintenance and renovation costs are
capitalized. Ordinary repairs and maintenance are expensed as incurred.
DEPRECIATION
Depreciation is computed by using the straight-line method over the
estimated useful lives of the related assets as follows:
<TABLE>
<S> <C>
Buildings..................................................................... 25 years
Building and land improvements................................................ 5 to 25
years
Appliances, carpeting and equipment........................................... 3 to 8 years
</TABLE>
F-11
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
B. SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
INTEREST EXPENSE AND REAL ESTATE TAX CAPITALIZATION FOR DEVELOPMENT ASSETS
Interest expense and real estate taxes incurred during the construction
period of assets under development are capitalized until buildings are placed in
service as evidenced by certificates of occupancy.
AMORTIZATION OF WORKFORCE AND OTHER INTANGIBLE ASSETS
Amortization of the intangible assets acquired related to the Advisor
Transaction and Property Manager Transaction is calculated using the
straight-line basis over a period of three to four years.
IMPAIRMENT OF LONG-LIVED ASSETS
Real estate assets and equipment are stated at depreciated cost. Pursuant to
Statement of Financial Accounting Standards Opinion No. 121, "Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed of",
impairment losses are recorded on long-lived assets used in operations on a
property by property basis, when events and circumstances indicate that the
assets might be impaired and the estimated undiscounted cash flows to be
generated by those assets are less than the carrying amount of those assets.
Upon determination that an impairment has occurred, those assets shall be
reduced to fair value less estimated costs to sell.
INVESTMENTS IN UNCONSOLIDATED JOINT VENTURES
Investments in Joint Ventures were accounted for using the equity method of
accounting as the respective Partnership Agreements required a majority vote for
all major decisions regarding the Joint Ventures. Under the equity method of
accounting, the Company's share of income (loss) of the Joint Ventures is
included in the Company's net income (loss).
MBS
MBS are held for long-term investment and therefore are carried at amortized
cost. Premiums or discounts are amortized over the life of the underlying
securities using the effective yield method. The Company has the intention and
ability to hold these to maturity.
MORTGAGE LOAN RECEIVABLE
Discounts on the mortgage loan, net of acquisition costs, are amortized into
income over the remaining life of the related loan using the effective yield
method, based on management's estimate of the current facts and circumstances
and the ultimate ability to collect such loan.
RENTAL REVENUE
Residential and commercial leases require the payment of base rent monthly
in advance. Rental revenues are recorded on the accrual basis. Commercial leases
generally contain provisions for additional rent based on a percentage of tenant
sales and other provisions which are also recorded on the accrual basis, but are
billed in arrears. Minimum rental revenue from long-term commercial leases is
recognized on a straight-line basis over the life of the related lease.
F-12
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
B. SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
SEGMENT REPORTING
In 1998, the Company adopted Statement of Financial Accounting Standards No.
131 ("FAS 131"), "Disclosures about Segments of an Enterprise and Related
Information." FAS 131 supersedes Statement of Financial Accounting Standards No.
14, "Financial Reporting for Segments of a Business Enterprise", replacing the
"industry segment" approach with a "management" approach. The management
approach designates the internal reporting used by management for making
operating decisions and assessing performance as the source of the Company's
segment.
DEFERRED EXPENSES
Costs associated with debt financings are capitalized and amortized to
interest expense over the term of the related agreement using a method which
approximates the effective interest method.
INTEREST RATE SWAP AGREEMENT
Swap receipts and payments under interest rate swap agreements designated as
a hedge are recognized as adjustments to interest expense in the Consolidated
Statements of Operations. Settlement payments or receipts on terminated interest
rate swap agreements are deferred and amortized over the remaining original
period of the swap, as long as the hedged borrowing is still outstanding.
Settlement payments or receipts on terminated interest rate swap agreements, if
any, would be reflected as financing activities in the Consolidated Statements
of Cash Flows.
INCOME TAXES
The Company has elected to be taxed as a REIT under the Internal Revenue
Code of 1986, as amended, and believes it will continue to meet all such
qualifications. Accordingly, the Company will not be subject to federal income
taxes on amounts distributed to shareholders provided that it distributes
annually at least 95% of its REIT taxable income and meets certain other
requirements for qualifying as a REIT. Therefore, no provision for federal
income taxes has been recorded in the Consolidated Financial Statements.
However, the Company is subject to certain state income taxes and certain state
net worth taxes which have been recorded in the Consolidated Statements of
Operations.
EARNINGS PER SHARE
In accordance with the Statement of Financial Accounting Standards No. 128
("FAS No. 128"), the Company presents both basic and diluted earnings per share
("EPS"). Basic EPS excludes dilution and is computed by dividing net income
available to common stockholders by the weighted average number of shares
outstanding for the period. Diluted EPS reflects the potential dilution that
could occur if securities or other contracts to issue common stock were
exercised or converted into common stock, where such exercise or conversion
would result in a lower EPS amount.
STRATEGIC ALTERNATIVES AND NON-RECURRING CHARGES
The Company considers costs associated with evaluation of strategic
alternatives and non-recurring charges to be costs incurred specific to
significant non-recurring events that materially distort the comparative
measurement of the Company's performance.
F-13
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
B. SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
EXTRAORDINARY ITEMS
Extraordinary items represent the effect resulting from the early settlement
of certain debt obligations, including related deferred financing costs,
prepayment penalties, yield maintenance payments and other related items.
RECLASSIFICATIONS
Certain prior year balances have been reclassified to conform with current
year consolidated financial statement presentation.
C. THE ADVISOR TRANSACTION
On February 28, 1996, the Board of Directors, acting on the recommendation
of a Special Committee comprised solely of Independent Directors, approved the
acquisition, via contribution, of the existing workforce and other assets of the
Advisor in exchange for 1.3 million Units which had a value of $13 million. The
total acquisition price, including professional fees and expenses, has been
recorded on the Company's balance sheet as intangible assets associated with the
workforce acquired and is being amortized on a straight-line method over a
three-year period.
The Board's actions were initiated to increase cash flows and to align the
organization of the Company to be consistent with the structure preferred by
institutional investors, rating agencies and market analysts.
Additional Units, up to a total of $7.2 million, may be issued during a
six-year period if certain share price benchmarks are achieved. The benchmarks
will be satisfied if the share price of the Company's common stock is equal to
or greater than the benchmark for any fifteen days during any twenty consecutive
trading days. There are six share price benchmarks beginning at $11.00 and
increasing by $1.00 each up to a maximum of $16.00. Upon satisfaction of each
benchmark, Units equal to $1.2 million will be issued. The Company achieved
share price benchmarks of $11.00 on March 19, 1997 and $12.00 on October 9, 1997
and issued 109,091 and 100,000 Units, respectively, on those dates. The value of
additional Units issued during 1997 was $2.4 million and was recorded as an
expense in the Consolidated Statements of Operations. As of December 31, 1998,
209,091 additional Units have been issued as a result of achieving the share
price benchmarks.
The contribution was completed on March 1, 1996. As of that date, all
charges and expenses associated with the Advisory Services Agreement ceased and
the Company became a "self-administered" REIT. The Company began incurring
general and administrative expenses for its acquired management staff including
salaries, benefits, and other overhead expenses.
D. PROPERTY MANAGER TRANSACTION
On February 26, 1997, the Board of Directors, acting on the recommendation
of a Special Committee comprised solely of Independent Directors, approved the
acquisition of the workforce and other assets of the Property Manager which
provided multifamily property management services to the Company ("Property
Manager"). The Property Manager was contributed on February 28, 1997 in exchange
for 1.7 million Units which had a value of approximately $17.6 million.
F-14
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
D. PROPERTY MANAGER TRANSACTION (CONTINUED)
At the time of the contribution, the Property Manager managed 57 apartment
communities, including the Company's 35 assets, and employed approximately 85
professionals, excluding site employees. As a result of this transaction, the
Company ceased payment of management fees and reimbursements for the management
operations of its multifamily portfolio. In addition, the Company acquired 22
third-party management contracts which generate management fee and reimbursement
revenue. Those contracts are primarily with partnerships affiliated with a
director of the Company.
The Board's actions were initiated to reduce the costs associated with the
operations of the multifamily portfolio, to generate revenue from third-party
fee management contracts and to align the organization of the Company to be
consistent with the structure preferred by institutional investors, rating
agencies and market analysts.
The value of the assets acquired was determined by evaluating the future
cash flows attributable to the third-party management contracts as well as the
immediate operating efficiencies obtained through the acquisition of a cohesive
assembled workforce. Accordingly, the value of the transaction was allocated to
intangible assets associated with third-party management contracts and the
workforce acquired. The Company recorded intangible assets of $4.4 million based
on discounted cash flows from third-party property management contracts and
$13.2 million based on the value of intangible assets associated with the
workforce acquired. The acquisition price is being amortized on a straight-line
method over a three to four year period.
E. QUESTAR TRANSACTION
On November 14, 1997, the Company consummated a transaction with the Questar
Companies ("Questar") whereby it acquired eighteen apartment communities (3,699
units) (the "Questar Transaction"). The total purchase price of $171.4 million
was funded through the assumption of $128.7 million in debt, the issuance of
$19.9 million in Units, $4.7 million in common stock and cash of $18.1 million.
The Company also contracted to purchase four apartment communities which were
under development at the time of the transaction, and entered into a Development
Acquisition Agreement with Questar Builders, Inc. which gave the Company the
exclusive right to acquire all apartment communities developed by Questar
Builders, Inc.
On December 15, 1997, the Company acquired Liriope Apartments, an 84-unit
apartment community located in Belcamp, Maryland, for approximately $7.6 million
under the contractual arrangement with Questar. Subsequent to December 31, 1998,
the Company acquired Granite Run which represented the second development
property the Company had contracted to acquire from Questar Builders, Inc. (See
Note F for additional information).
F. REAL ESTATE PROPERTIES
As of December 31, 1998, the Company had investments in 81 multifamily
apartment communities in eight states consisting of 24,123 apartment units.
F-15
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
F. REAL ESTATE PROPERTIES (CONTINUED)
The following summarizes the carrying value of the Company's multifamily
apartment communities and retail centers held for sale in 1997 which were sold
in 1998 (dollars in thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
-------------------------
<S> <C> <C>
1998 1997
------------ -----------
Land................................................................................... $ 151,282 $ 109,063
Buildings and improvements............................................................. 768,270 629,649
Appliances, carpeting and equipment.................................................... 169,812 120,669
------------ -----------
Total multifamily and retail property.................................................. 1,089,364 859,381
Accumulated depreciation............................................................... (169,878) (129,280)
------------ -----------
$ 919,486 $ 730,101
------------ -----------
------------ -----------
</TABLE>
ACQUISITIONS
On January 21, 1998, the Company acquired Berkshire Springs Apartments
(formerly known as Countrywood), a 208-unit apartment community located in
Dallas, Texas, for $6.75 million. The Company paid cash of $2.0 million, assumed
debt of $4.0 million and issued $720,000 of Operating Partnership Units. The
debt agreement requires monthly principal and interest payments based on an
interest rate of 7.875% along with monthly funding of real estate tax escrows.
On February 4, and April 9, 1998, the Company acquired six apartment
communities for approximately $81.2 million. The Company paid cash of
approximately $58.9 million, issued $8.0 million of Operating Partnership Units
and assumed debt of $14.3 million. The debt agreements require monthly principal
and interest payments based on interest rates of 8.51% along with monthly
funding of real estate tax escrows. The apartment communities acquired are
summarized as follows:
<TABLE>
<CAPTION>
NUMBER
PROPERTY NAME LOCATION OF UNITS
- ----------------------------------------------------------------------------------- ------------------- -----------
<S> <C> <C>
Bluffs of Berkshire (formerly known as The Bluffs)................................. Austin, TX 382
Berkshire Hills (formerly known as Pinto Ridge).................................... Austin, TX 238
Carlyle Place...................................................................... San Antonio, TX 184
Yorktown........................................................................... Houston, TX 563
6200 Gessner....................................................................... Houston, TX 659
Berkshire Crossings (formerly known as The Lodge).................................. Houston, TX 240
-----
2,266
-----
-----
</TABLE>
On February 12, 1998, the Company acquired Olde Forge, a 144-unit townhome
community located in Baltimore, Maryland, for $7.3 million. The Company assumed
bond debt of approximately $5.8 million and issued $1.5 million of Operating
Partnership Units. The debt agreement requires monthly principal and interest
payments based on an all inclusive fixed interest rate of 7.055% along with
monthly funding of real estate tax escrows.
On February 26, 1998, the Company acquired Arbor Keys (formerly known as
Seven Winds), a 232-unit garden style apartment community located in Tamarac,
Florida, for $9.6 million. The Company paid cash of $7.8 million and issued $1.8
million of Operating Partnership Units.
F-16
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
F. REAL ESTATE PROPERTIES (CONTINUED)
On March 14, 1998, the Company acquired Lynn Lake Apartments, an 809-unit
apartment property located in St. Petersburg, Florida which consists of 688
garden-style apartments and 121 townhomes, for $23.0 million. The Company paid
cash of $2.4 million, assumed tax-exempt bond debt of $14.4 million and issued
$6.2 million of Operating Partnership Units. One of the bond agreements requires
monthly principal and interest payments based on a fixed interest rate of 7.06%
along with monthly funding of real estate tax escrows. The other bond agreement
requires interest only payments at an all inclusive variable rate of 5.07% as of
December 31, 1998.
On June 18, 1998, the Company acquired Oaks of Marymont, a 319-unit
apartment community located in San Antonio, Texas, for $11.4 million in cash.
On July 8, 1998, the Company acquired four apartment communities in Atlanta,
Georgia for approximately $59.7 million. The Company assumed $40.4 million of
first mortgage debt and paid cash of $19.3 million. The debt agreements require
monthly principal and interest payments based on interest rates ranging from
8.04% to 8.60% along with the monthly funding of real estate tax escrows. The
apartment communities acquired are summarized as follows:
<TABLE>
<CAPTION>
NUMBER
PROPERTY NAME OF UNITS
- ------------------------------------------------------------------------------------ -----------
<S> <C>
Essex House......................................................................... 120
Highlands at Briarcliff............................................................. 140
Pines at Dunwoody................................................................... 389
River Parkway....................................................................... 427
-----
1,076
-----
-----
</TABLE>
DEVELOPMENT
In 1998, the Company completed construction of Berkshires at Crooked Creek,
a 296-unit apartment community in Durham, North Carolina. The project was
completed for a total cost of approximately $20.1 million. The cost of the
completed development property has been included in multifamily apartment
communities on the Consolidated Balance Sheet as of December 31, 1998.
In December, 1997, the Company purchased a 60 acre parcel of land in
Atlanta, Georgia for approximately $5.8 million for the development of two
multifamily phases, the first of which was Berkshires at Deerfield, a 478 unit
apartment community. Construction began in the third quarter of 1998 and is
expected to be completed in October, 2000 at an estimated cost of $34.9 million.
As of December 31, 1998, approximately $7.3 million of construction costs had
been incurred.
On April 29, 1998, the Company acquired 12.6 acres located near Clemson,
South Carolina for approximately $571,000. Construction of Berkshire Commons, a
177-unit student housing development, began in the third quarter of 1998 and is
expected to be completed in August, 1999 at an estimated cost of $14.1 million.
As of December 31, 1998, approximately $3.7 million of construction costs had
been incurred.
The Company also owns two other parcels of land located in Greenville, South
Carolina. Development plans are under consideration for these sites.
F-17
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
F. REAL ESTATE PROPERTIES (CONTINUED)
As of December 31, 1998, the Company was contractually obligated to acquire
three additional properties from Questar Builders, Inc. which were in various
stages of development. The developments are summarized as follows:
<TABLE>
<CAPTION>
PLANNED ESTIMATED EXPECTED
APARTMENT TOTAL ACQUISITION
PROPERTY LOCATION UNITS INVESTMENT DATE
- ------------------------------------------------- ----------------- ------------- ----------- ------------------
<S> <C> <C> <C> <C>
(IN THOUSANDS)
Granite Run (a).................................. Baltimore, MD 264 $ 25,500 January, 1999
The Courts of Avalon............................. Pikesville, MD 258 34,700 December, 1999
Excalibur at Avalon.............................. Pikesville, MD 147 24,200 March, 2000
-----------
Total...................................... 669 $ 84,400
-----------
-----------
</TABLE>
- ------------------------
(a) On January 7, 1999, the Company acquired Granite Run for approximately $25.5
million.
On November 14, 1997, the Company entered into a Development Acquisition
Agreement with Questar Builders, Inc. which granted the Company an exclusive
right to acquire all apartment projects developed in the Mid-Atlantic Region by
Questar Builders, Inc. which meet the Company's acquisition and development
criteria.
DISPOSITIONS
On January 5, 1998, the Company sold Tara Crossing, a 235,781 square foot
retail center located in Jonesboro, Georgia, for approximately $9.5 million. The
property had a depreciated cost basis of approximately $9.2 million which, after
closing costs, resulted in a loss on sale of approximately $10,000.
On January 30, 1998, the Company sold College Plaza, an 83,962 square foot
retail center in Fort Myers, Florida, for approximately $6 million. The property
had a depreciated cost basis of approximately $5.2 million which, after closing
costs, resulted in a gain on sale of approximately $516,000. Also on January 30,
1998, the Company and its joint venture partner sold Spring Valley Marketplace,
a 320,686 square foot retail center located in Spring Valley, New York, for
approximately $29.6 million. The Company's share of the gain recorded by the
joint venture on the sale totaled approximately $50,000.
On May 13, 1998, the Company sold a parcel of land located in Dallas, Texas,
for approximately $2 million which resulted in a gain of approximately $543,000.
G. INVESTMENTS IN UNCONSOLIDATED JOINT VENTURES
The Company had a 50% interest in Brookwood Village Joint Venture and a
50.1% interest in Spring Valley Partnership (collectively, the "Joint Ventures")
as of December 31, 1996. On January 30, 1998, the Company and its joint venture
partner sold Spring Valley Marketplace. (See Note F for additional details). On
May 13, 1997, Brookwood Village Joint Venture exchanged Brookwood Village Mall
for two multifamily properties, Berkshire West and Sunchase, and cash. Brookwood
Village Joint Venture recognized a loss on the exchange of approximately
$722,000, the Company's pro rata share of which was approximately $361,000.
F-18
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
G. INVESTMENTS IN UNCONSOLIDATED JOINT VENTURES (CONTINUED)
Condensed combined financial statements for the Joint Ventures are as
follows:
CONDENSED COMBINED BALANCE SHEETS
DECEMBER 31, 1998 AND 1997
<TABLE>
<CAPTION>
1998 1997
--------- --------------
<S> <C> <C>
ASSETS
Property................................................................................. $ -- $ 54,036,202
Less accumulated depreciation............................................................ -- (24,936,202)
--------- --------------
Total real estate asset.................................................................. -- 29,100,000
Other assets............................................................................. -- 2,897,655
--------- --------------
Total assets............................................................................. $ -- $ 31,997,655
--------- --------------
--------- --------------
LIABILITIES AND PARTNERS' EQUITY
Liabilities.............................................................................. $ -- $ 711,270
--------- --------------
Partners' equity:
The Company............................................................................ -- 15,618,657
Joint venture partner.................................................................. -- 15,667,728
--------- --------------
Total partners' equity................................................................... -- 31,286,385
--------- --------------
Total liabilities and partners' equity................................................... $ -- $ 31,997,655
--------- --------------
--------- --------------
</TABLE>
CONDENSED COMBINED STATEMENTS OF OPERATIONS
FOR THE YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996
<TABLE>
<CAPTION>
1998 1997 1996
----------- -------------- -------------
<S> <C> <C> <C>
Revenue.............................................................. $ 540,486 $ 9,221,901 $ 13,118,356
Property operating expenses.......................................... (376,778) (4,756,376) (6,214,033)
Depreciation......................................................... -- (2,798,220) (3,925,146)
Provision for loss................................................... -- (10,749,529) (9,000,000)
Gain (loss) on sale.................................................. 100,672 (721,760) --
----------- -------------- -------------
Net income (loss).................................................... $ 264,380 $ (9,803,984) $ (6,020,823)
----------- -------------- -------------
----------- -------------- -------------
Allocation of net income (loss):
The Company.......................................................... $ 132,454 $ (4,910,021) $ (3,008,587)
Joint venture partner................................................ 131,926 (4,893,963) (3,012,236)
----------- -------------- -------------
$ 264,380 $ (9,803,984) $ (6,020,823)
----------- -------------- -------------
----------- -------------- -------------
</TABLE>
Pursuant to Statement of Financial Accounting Standards Opinion No. 121
"Accounting for the Improvement of Long-Lived Assets and for Long-Lived Assets
to be Disposed Of" impairment losses were recognized on the Company's joint
venture assets. In 1997, Brookwood Village and Spring Valley recorded provisions
for losses of $1,472,096 and $9,277,433, respectively, which represented the
difference between carrying value and estimated fair value less costs to sell.
In 1996, Brookwood Village recorded a provision for loss of $9,000,000.
F-19
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
H. MORTGAGE LOAN RECEIVABLE
The Company held a mortgage loan which had a carrying value of approximately
$2,376,000 and $2,323,000 as of December 31, 1998 and 1997, respectively. The
mortgage loan is collateralized by a 120-unit apartment complex in Palm Bay,
Florida and requires monthly principal and interest payments of $23,518 based on
a 23-year amortization and a 7% interest rate. The mortgage loan matures January
27, 2002 when a balloon payment of $2,552,673 will be due. The principal balance
of the mortgage loan was approximately $2,857,000 and $2,939,000 at December 31,
1998 and 1997, respectively.
I. MORTGAGE-BACKED SECURITIES (MBS)
At December 31, 1998, the Company's MBS portfolio had an approximate market
value of $5,271,000 with unrealized gains of approximately $334,000. The market
value of the MBS portfolio at December 31, 1997 was approximately $8,012,000
with unrealized gains of approximately $500,000. At December 31, 1998 and 1997,
the cost basis of the MBS portfolio was approximately $4,937,000 and $7,512,000
with a face value of approximately $4,965,000 and $7,561,000, respectively. The
portfolio consists of Federal Home Loan Mortgage Corporation securities with
coupon rates ranging from 8.0% to 9.75% per annum maturing in the years 2008
through 2021 and a Federal National Mortgage Association security with a coupon
rate of 9% per annum maturing in 2024.
J. NOTE RECEIVABLE
On November 14, 1997 ("Funding Date"), a promissory note in the amount of
$7,500,000 was issued by GGC, L.L.C. ("GGC"), an affiliate of an officer of the
Company, to the Company as a result of the Questar Transaction. The note
requires interest payments at an annual rate of 11.39% commencing on December 1,
1997, and continuing until the outstanding balance is paid in full. A principal
payment in the amount of $3,750,000, together with all accrued interest and
other charges, will be due and payable on November 14, 2000. The remaining
principal balance and accrued interest and other charges will be due and payable
on November 14, 2002. Units and Shares received by the borrowers as a result of
the Questar Transaction totaling $9.375 million have been pledged as collateral
for the promissory note. Subsequent to December 31, 1998, GGC paid down $3.5
million of the outstanding principal balance and $4.375 million of collateral
was released.
K. CREDIT AGREEMENT
As of December 31, 1998, the Company had a credit agreement with nine
participating commercial banks for a $180 million unsecured revolving line of
credit, at interest rates which ranged between 120 and 130 basis points over
LIBOR ("Credit Agreement"). The following summarizes the Company's borrowings on
the Credit Agreement as of December 31, 1998:
<TABLE>
<CAPTION>
CONTRACT CONTRACT
BORROWINGS START DATE END DATE INTEREST RATE AMOUNT
- ----------------------------------------------------------- ----------- --------- ------------- --------------
<S> <C> <C> <C> <C>
LIBOR contract............................................. 12/14/98 01/13/99 6.8625% $ 36,100,000
LIBOR contract............................................. 12/09/98 01/08/99 6.8313% 99,000,000
--------------
Subtotal................................................... $ 135,100,000
--------------
--------------
</TABLE>
F-20
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
K. CREDIT AGREEMENT (CONTINUED)
Subsequent to December 31, 1998, the Company borrowed an additional $38.0
million and repriced all borrowings on the Credit Agreement at interest rates
that ranged from 6.2688% to 6.2375% with contract end dates that ranged from
April 1, 1999 to April 15, 1999.
As of December 31, 1997, the Company had a credit agreement with two
commercial banks with a maximum commitment of $49.5 million. The Company's
borrowings under the credit agreement totaled $12.0 million and had a contract
interest rate of 7.125% at December 31, 1997. This agreement was replaced by the
Credit Agreement discussed above.
In November, 1995, the Company entered into a five-year interest rate swap
contract with a bank as counterparty in order to hedge against variable interest
rate debt. Pursuant to the swap contract, the Company will pay 6.06% on a $40
million notional amount and will receive LIBOR (based on 90 day contracts).
The weighted average interest rate for the Company's variable rate credit
agreements was 6.972% for the year ended December 31, 1998.
The Credit Agreement requires the Company to be in compliance with certain
debt covenants. Three of the more restrictive covenants include the requirement
to maintain interest coverage ratio of 2 to 1, a debt service coverage ratio of
1.75 to 1 and total liabilities to total assets of not more than 55%. The
Company believes it was in compliance with all covenants as of December 31,
1998.
L. CONSTRUCTION LOAN
The Company has a construction loan commitment of $13.1 million to fund the
development Berkshires at Crooked Creek ("Construction Loan"). The agreement
requires monthly interest payments at a variable rate set at 150 basis points
over LIBOR. The outstanding principal balance will be due June 30, 1999. As of
December 31, 1998, the Company's borrowings on the Construction Loan totaled
$11,362,891 and had interest rates that ranged from 6.8125% to 7.0625% with
contract end dates of January 14, 1999 and February 16, 1999.
Subsequent to December 31, 1998, the Company repriced all borrowings on the
Construction Loan at an interest rate of 6.4375% with a contract end date of
April 16, 1999.
M. MORTGAGE NOTES PAYABLE
The Company has a borrowing arrangement with the Federal National Mortgage
Association ("FNMA"). The original commitment for this interest-only borrowing
arrangement, which was collateralized by multifamily assets, was for a maximum
amount of $100 million, of which $63,345,000 was a fixed amount with fixed
interest rates ("Fixed") and $36,655,000 was a revolving component which had a
variable interest rate. On August 7, 1998, the Company terminated the
$36,655,000 the revolving component and incurred termination fees and increased
amortization expense of $561,453 as a result.
F-21
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
M. MORTGAGE NOTES PAYABLE (CONTINUED)
At December 31, 1998 and 1997, the outstanding amounts under the borrowing
arrangement with FNMA were as follows:
<TABLE>
<CAPTION>
INTEREST
MATURITY DATES RATE AMOUNT
- ----------------------------------------------------------------- ------------ -------------
<S> <C> <C>
11/20/05......................................................... 6.997% $ 50,000,000
9/20/03.......................................................... 7.540% 13,345,000
-------------
$ 63,345,000
-------------
-------------
</TABLE>
At December 31, 1998, the apartment communities pledged as collateral under
the borrowing arrangement with FNMA were as follows:
<TABLE>
<CAPTION>
APARTMENT COMMUNITIES LOCATION
- ----------------------------------------------------------------------------- ---------------
<S> <C>
Brookfield Trace............................................................. Mauldin, SC
Brookwood Valley............................................................. Mauldin, SC
Cumberland Cove.............................................................. Raleigh, NC
Indigo on Forest............................................................. Dallas, TX
The Oaks..................................................................... Mauldin, SC
Pleasant Woods............................................................... Dallas, TX
River Oaks................................................................... Houston, TX
</TABLE>
F-22
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
M. MORTGAGE NOTES PAYABLE (CONTINUED)
The following table sets forth certain information regarding the other
mortgage notes payable and related collateral at December 31, 1998:
<TABLE>
<CAPTION>
PRINCIPAL
INTEREST MATURITY BALANCE
APARTMENT COMMUNITIES LOCATION RATE DATE AS OF 12/31/98
- ----------------------------------------------- ------------------------- ----------- ----------- --------------
<S> <C> <C> <C> <C>
FIXED RATE
Westchester West............................... Silver Spring, MD 8.25% 2/1/2001 $ 10,954,587
Altamonte Bay Club............................. Altamonte Springs, FL 8.34% 4/1/2001 3,967,079
Huntington Chase............................... Norcross, GA 8.34% 4/1/2001 7,924,926
Newport........................................ Tampa, FL 8.34% 4/1/2001 3,598,079
The Timbers.................................... Charlotte, NC 8.34% 4/1/2001 6,365,833
The Avalon on Abernathy........................ Atlanta, GA 8.45% 6/1/2001 5,327,543
East Lake Village.............................. Charlotte, NC 8.45% 6/1/2001 2,803,970
Southpointe at Massapequa...................... Massapequa, NY 8.45% 6/1/2001 4,953,680
6200 Gessner................................... Houston, TX 8.51% 6/1/2001 9,791,214
Berkshire Crossing............................. Houston, TX 8.51% 6/1/2001 4,458,429
Huntington Downs............................... Greenville, SC 8.45% 7/1/2001 8,677,496
The Lakes of Jacaranda......................... Plantation, FL 8.45% 7/1/2001 7,750,773
Berkshire West................................. Winter Garden, FL 7.45% 11/1/2003 5,479,391
Lynn Lake...................................... St. Petersburg, FL 7.06% 12/1/2003 7,807,877
Berkshire Springs.............................. Dallas, TX 7.88% 2/1/2004 3,937,481
Kings Crossing................................. Kingwood, TX 8.45% 7/1/2005 8,655,350
Kingwood Lakes................................. Kingwood, TX 8.45% 7/1/2005 8,274,895
Golf Side...................................... Fort Worth, TX 7.70% 11/1/2005 5,622,531
River Parkway.................................. Atlanta, GA 8.60% 8/1/2006 17,100,677
Fairway Ridge.................................. Baltimore, MD 8.19% 12/1/2006 6,029,303
Kingswood I.................................... Baltimore, MD 8.12% 11/1/2006 5,930,818
Kingswood II................................... Baltimore, MD 8.12% 11/1/2006 5,865,062
Warren Park.................................... Baltimore, MD 8.12% 11/1/2006 5,005,324
Hazelcrest..................................... Baltimore, MD 8.12% 11/1/2006 809,685
Heraldry Square................................ Baltimore, MD 8.12% 11/1/2006 7,851,488
Essex House.................................... Atlanta, GA 8.04% 3/1/2007 5,044,437
Highlands at Briarcliff........................ Atlanta, GA 8.04% 3/1/2007 5,266,758
Pines at Dunwoody.............................. Atlanta, GA 8.04% 3/1/2007 12,755,908
Jamestowne..................................... Baltimore, MD 7.21% 11/1/2008 5,558,306
Williston...................................... Baltimore, MD 7.23% 11/1/2008 1,796,904
Coventry....................................... Baltimore, MD 6.10% 4/1/2026 4,359,193
Courtleigh..................................... Baltimore, MD 5.95% 8/1/2028 11,655,312
The Estates.................................... Pikesville, MD 7.00% 9/1/2028 11,455,708
Calvert's Walk................................. Belair, MD 7.15% 4/1/2029 14,090,273
Berkshire Towers............................... Silver Spring, MD 7.63% 4/1/2029 34,823,122
Stratton Meadows............................... Baltimore, MD 7.10% 2/1/2030 12,299,697
Arborview...................................... Belcamp, MD 7.38% 1/1/2034 16,509,218
Rollingwind.................................... Baltimore, MD 7.25% 9/1/2035 18,157,454
--------------
Subtotal................................. $ 318,715,781
--------------
--------------
</TABLE>
F-23
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
M. MORTGAGE NOTES PAYABLE (CONTINUED)
<TABLE>
<CAPTION>
PRINCIPAL
INTEREST MATURITY BALANCE
APARTMENT COMMUNITIES LOCATION RATE DATE AS OF 12/31/98
- ----------------------------------------------- ------------------------- ----------- ----------- --------------
<S> <C> <C> <C> <C>
TAX EXEMPT BONDS--FIXED
Plantation Colony.............................. Plantation, FL 7.14% 9/1/2004 9,296,493
Park Colony and................................ Hollywood, FL
Woodland Meadows............................... Tamarac, FL 6.41% 4/1/2002 16,900,000
Olde Forge..................................... Baltimore, MD 6.43% 7/1/2026 5,695,712
--------------
Subtotal................................. $ 31,892,205
--------------
--------------
TAX EXEMPT BONDS--VARIABLE
Prescott Place II.............................. Dallas, TX 5.66%(1) 12/5/2003 $ 5,783,441
Lynn Lake...................................... St. Petersburg, FL 5.07%(2) 7/1/2011 6,500,000
--------------
Subtotal................................. $ 12,283,441
--------------
--------------
Total mortgage notes payable................... $ 426,236,427
--------------
--------------
</TABLE>
- ------------------------
(1) This interest rate is calculated at 70% of the prime rate as published by
the lending institution and in effect on June 15 and December 15 to be
effective for the six months thereafter.
(2) This interest rate is determined on a weekly basis by the remarketing agent
at the minimum interest rate necessary so that the bonds could be sold at
one hundred percent of the principal amount plus accrued interest.
The aggregate scheduled principal amounts of long-term borrowings due during
the five years 1999 through 2003 and thereafter are $4,615,579, $5,000,350,
$78,043,672, $20,417,102, $26,615,964 and $291,543,760, respectively.
In the event of a mortgage prepayment, certain mortgage agreements may
require a prepayment penalty.
N. MINORITY INTEREST
Minority Interest represents the respective ownership percentage of the
Operating Partnership by unitholders other than the Company. Ownership
percentage is determined as the number of Units held by the Minority Interest in
relation to the total number of Units held by the Minority Interest and the
Company. Issuance of additional Shares or Units changes the ownership interests
of both the Minority Interest and the Company. Such transactions and the
proceeds therefrom are treated as capital transactions and result in an
allocation between shareholders' equity and Minority Interest. The Company made
an allocation adjustment to account for the Minority Interest ownership of the
Operating Partnership as of December 31, 1998.
Holders of Units receive distributions per Unit equal to the dividend per
Share paid in respect of common stock of the Company. At the option of the
Operating Partnership, as specified in the Partnership Agreement, Units may be
either exchanged for an equal number of Shares or redeemed for cash from the
Operating Partnership.
There were 9,667,248 and 7,199,661 Units held by minority unitholders in the
Operating Partnership as of December 31, 1998 and 1997, respectively.
F-24
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
O. RELATED PARTY TRANSACTIONS
As a result of the Property Manager Transaction, the Company receives
property management fees and expense reimbursements associated with the
third-party management contracts acquired. These contracts are primarily with
partnerships affiliated with a director of the Company. The Company earned
approximately $3,238,000 and $2,763,000 related to affiliated third-party
management contracts for the years ended December 31, 1998 and 1997,
respectively.
As discussed in Note J, the Company has a promissory note receivable with an
affiliate of an officer of the Company. The Company recorded interest income
related to the promissory note receivable of approximately $854,000 and $112,000
for the years ended December 31, 1998 and 1997, respectively. Subsequent to year
end, the terms of the promissory note were amended and the affiliate paid down
$3.5 million of the outstanding principal balance.
As a result of the Questar Transaction, the Company executed a five-year
lease with an affiliate of an officer of the Company for approximately 6,900
square feet of space at an annual gross rent of approximately $140,000. The
Company incurred rent expense related to the lease agreement of approximately
$140,000 and $18,000 for the year ended December 31, 1998 and 1997,
respectively.
As discussed in Note P, the Company has issued stock purchase loans to the
President and three executive officers of the Company. In accordance with the
provisions of the loans, $125,000 and $100,000 of loan principal was forgiven
during 1998 and 1997, respectively. The forgiven amount was recorded as an
expense in the Consolidated Statements of Operations. The Company recorded
interest income on the stock purchase loans of approximately $180,000 and
$65,000 for the years ended December 31, 1998 and 1997, respectively. The unpaid
principal balance of the loans was $2,275,000 and $900,000 as of December 31,
1998 and 1997, respectively.
As a result of the acquisition of the Property Manager as described in Note
D, effective February 28, 1997, the Company terminated the management contracts
with an affiliate for services related to multifamily property operations. The
Company engaged an affiliate of a director of the Company to manage its retail
assets until January 30, 1998. The management contracts were terminated on
January 30, 1998, as a result of the sale of the Company's remaining retail
assets.
The Company has an agreement with an affiliate of a director whereby the
affiliate and the Company have contracted to provide certain administrative
services on each other's behalf. Pursuant to the agreement, the affiliate
provides services related to management information systems support, legal and
investor records and the Company provides human resources, insurance risk
management and real estate tax related services.
The following is a summary of fees and reimbursements paid or accrued to
affiliates for administrative and property management services for the years
ended December 31:
<TABLE>
<CAPTION>
1998 1997 1996
------------ ------------ ------------
<S> <C> <C> <C>
Fees and reimbursements for administrative services, net................ $ 1,302,462 $ 1,324,263 $ 740,273
Cost reimbursements related to the operation of the Company's
properties............................................................ $ 2,544 $ 254,615 $ 1,666,695
</TABLE>
F-25
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
P. BENEFIT PLANS
STOCK OPTION PLAN
The Board of Directors of the Company adopted the Berkshire Realty Company,
Inc. Amended and Restated Stock Option Plan (the "Plan") in May, 1998. The Plan
provides for grants to certain employees, non-employee directors and consultants
of the Company. Awards are administered by the Compensation Committee which is
comprised of at least two independent directors appointed by the Board of the
Directors. There are 3,300,000 shares of common stock authorized for
non-qualified and incentive stock option grants under the Plan. The Plan will
continue in effect until all shares of common stock subject to options have been
acquired or until May 1, 2001, whichever is earlier. However, unexercised
options will continue in effect after the termination of the Plan. Options
currently granted have a 0-3 year vesting period.
In October 1995, the FASB issued Statement of Financial Accounting Standards
No. 123 ("SFAS 123"), "Accounting for Stock-Based Compensation," effective for
periods beginning after December 15, 1995. SFAS 123 requires that companies
either recognize compensation expense for grants of stock, stock options, and
other equity instruments based on fair value, or provide pro-forma disclosure of
net income and earnings per share, adjusted to reflect the effect of
compensation expenses, in the notes to the financial statements. The Company
adopted the disclosure provisions of SFAS 123 in 1998 and 1997 and has applied
APB Opinion No. 25 and related Interpretations in accounting for the Plan.
Accordingly, compensation expense of approximately $9,000, $22,000 and $22,000
was recognized for the years ended December 31, 1998, 1997 and 1996,
respectively, for the options issued to a consultant of the Company. Had
compensation expense for the Plan been determined based on the fair value of all
the options calculated in accordance with SFAS 123, the Company's net loss and
earnings per share for the years ended December 31, 1998, 1997 and 1996 would
have been adjusted to the pro-forma amounts indicated below (unaudited):
<TABLE>
<CAPTION>
1998 1997 1996
--------------------------- --------------------------- ---------------------------
EARNINGS EARNINGS EARNINGS
NET LOSS PER COMMON NET LOSS PER COMMON NET LOSS PER COMMON
PER COMMON SHARE PER COMMON SHARE PER COMMON SHARE
(BASIC) (BASIC) (BASIC) (BASIC) (BASIC) (BASIC)
-------------- ----------- -------------- ----------- -------------- -----------
<S> <C> <C> <C> <C> <C> <C>
As Reported.............................. $ (14,153,655) $ (.39) $ (10,088,352) $ (.37) $ (14,308,277) $ (.56)
Pro-Forma*............................... $ (14,487,111) $ (.39) $ (10,340,811) $ (.38) $ (14,745,759) $ (.58)
</TABLE>
- ------------------------
* The pro-forma effect of compensation costs determined using the fair value
based method are not indicative of future amounts.
The fair value of each option is estimated on the date of grant using the
Black-Scholes option-pricing model with the following weighted average
assumptions: for 1998 an expected life of 5.2 years, expected volatility of 20%,
a dividend yield of 8.1% and a risk free interest rate of 5.57%; for 1997 an
expected life of 4.7 years, expected volatility of 17%, a dividend yield of 8.1%
and a risk free interest rate of 6.36%, and for 1996 an expected life of 3
years, expected volatility of 20%, a dividend yield of 9.1% and a risk free
interest rate of 5.65%.
F-26
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
P. BENEFIT PLANS (CONTINUED)
A summary of the status of the Plan and changes during the year are
presented below:
<TABLE>
<CAPTION>
WEIGHTED AVERAGE
SHARES EXERCISE PRICE
-------------------------------------- -------------------------------
<S> <C> <C> <C> <C> <C> <C>
1998 1997 1996 1998 1997 1996
------------ ------------ ---------- --------- --------- ---------
Outstanding at beginning of the year................ 1,094,500 624,000 -- 10.38 9.90 --
Granted............................................. 539,100 536,300 624,000 11.88 10.99 9.90
Exercised........................................... -- -- -- -- -- --
Forfeited/Expired................................... (39,000) (65,800) -- (11.69) (10.73) --
------------ ------------ ---------- --------- --------- ---------
Outstanding at end of the year...................... 1,594,600 1,094,500 624,000 $ 10.85 $ 10.38 $ 9.90
------------ ------------ ---------- --------- --------- ---------
------------ ------------ ---------- --------- --------- ---------
Options exercisable at year-end..................... 981,300 784,000 568,000 $ 10.45 $ 10.15 $ 9.86
------------ ------------ ---------- --------- --------- ---------
------------ ------------ ---------- --------- --------- ---------
Weighted average fair value of options granted
during the year................................... $ 1.04 $ .86 $ .74
------------ ------------ ----------
------------ ------------ ----------
</TABLE>
The following table summarizes information about options granted for the
following years:
<TABLE>
<CAPTION>
REMAINING
RANGE OF OPTIONS CONTRACTUAL WEIGHTED AVERAGE
EXERCISE PRICES GRANTED LIFE EXERCISE PRICE
--------------- --------- ----------- -----------------
<S> <C> <C> <C> <C>
1998.................................................. $ 11.81-$11.88 539,100 9.1 years $ 11.88
1997.................................................. $ 10.75-$11.00 536,300 8.3 years $ 10.99
1996.................................................. $ 9.75-$10.25 624,000 7.4 years $ 9.90
</TABLE>
STOCK PURCHASE LOANS
On February 28, 1997, the Board of Directors approved a $1 million Stock
Purchase Loan for the President and Chief Executive Officer of the Company. On
March 4, 1997, the loan proceeds were used to purchase 86,956 shares of the
Company's common stock at $11.50 per share.
On January 2, 1998, the Board of Directors approved three additional Stock
Purchase Loans, each in the amount of $500,000, for three executive officers of
the Company. On January 2, 1998, the officers purchased 126,984 shares of common
stock at $11.81 per share using the loan proceeds.
The terms of the loans provide for, among other things, interest rates of
7.8% and 7.873% per year payable quarterly and an annual forgiveness feature of
5% of the original principal so long as the individual is employed.
Additional annual forgiveness of up to another 5% may be granted if certain
Company performance measures are met. The maximum forgiveness in any one year is
10%. If the individual terminates his employment, the loan is due and payable
six months from the date of termination. However, in the event of a change of
control of the Company, as defined, any then outstanding principal and interest
due shall be forgiven.
EMPLOYEE RETIREMENT SAVINGS PLAN
The Company implemented a defined contribution plan in 1996 pursuant to
Section 401(k) of the Internal Revenue Code which covers all employees'
contributions up to 3% of each employee's
F-27
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
P. BENEFIT PLANS (CONTINUED)
compensation, not to exceed $1,000. Employees with one year or greater service
are eligible to participate in the defined contribution plan. Aggregate
contributions of approximately $166,000 and $97,000 were made for the years
ended December 31, 1998 and 1997, respectively.
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
The Company implemented a Supplemental Executive Retirement Plan ("SERP") in
1997 which provides certain of its executive employees with supplemental
retirement income and to offer those employees an opportunity to elect to defer
the receipt of compensation in order to provide termination of employment and
related benefits taxable pursuant to Section 451 of the Internal Revenue Code of
1986, as amended. The SERP provides for a Company match of 10% of the employees'
deferred compensation up to a maximum of 25% of each individual employee's base
salary. Aggregate contributions made by the Company pursuant to the SERP were
approximately $22,000 and $25,000 for the years ended December 31, 1998 and
1997, respectively.
Q. COMMITMENTS AND CONTINGENCIES
LITIGATION
The Company is involved in legal actions and claims in the ordinary course
of its business. It is the opinion of management and its legal counsel, that
such litigation and claims should be resolved without material effect on the
Company's financial position or results from operations.
DEVELOPMENT
The estimated cost to complete Berkshires at Deerfield and Berkshire
Commons, the development projects in progress at year end, was approximately
$38.0 million as of December 31, 1998.
As discussed in Note F, the Company also has contracts to acquire three
properties from Questar Builders, Inc. which were in various stages of
development as of December 31, 1998.
EMPLOYMENT AGREEMENTS
The Company has employment agreements with certain officers which have
expiration dates which range from December, 1998 to November, 2002. In the event
any of the employment agreements are terminated, certain termination and
severance payments are required.
LEASES
The Company has several lease agreements for its regional and corporate
office space. The leases have expiration dates which range from December, 1999
to September, 2008 and require minimum lease payments of $1,274,811, $979,429,
$772,747, $780,180, $773,086, and $3,277,714 during the five years 1999 through
2003 and thereafter, respectively.
TAX COMPLIANCE
The Company is currently in the process of addressing two matters which
pertain to compliance with certain REIT tax provisions. Both matters relate to
certain services being provided to tenants which could be considered
impermissible under certain Internal Revenue Service regulations in 1997
F-28
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
Q. COMMITMENTS AND CONTINGENCIES (CONTINUED)
and earlier years. It is management's opinion, based on advice from its tax
advisors, that the situation will be satisfactorily resolved without any
significant cost to the Company, although there can be no assurance that this
will be the case.
R. EARNINGS PER SHARE
In accordance with Financial Accounting Standards Board Statement No. 128,
"Earnings Per Share", the Company has presented basic and diluted net loss per
share on the Consolidated Statement of Operations. The basic and diluted net
loss and weighted average shares used in the calculations are presented below:
<TABLE>
<CAPTION>
1998 1997 1996
-------------- -------------- --------------
<S> <C> <C> <C>
Net loss allocated to common shareholders (Numerator)............ $ (14,153,655) $ (10,088,352) $ (14,308,277)
-------------- -------------- --------------
-------------- -------------- --------------
Weighted average shares (Denominator)............................ 36,684,985 27,099,522 25,393,147
-------------- -------------- --------------
-------------- -------------- --------------
</TABLE>
Options, preferred stock, warrants, and Units were not included in the
computation of diluted earnings per share for the years ended December 31, 1998,
1997 and 1996 because the effects of these securities were antidilutive in the
computations.
S. FAIR VALUE OF FINANCIAL INSTRUMENTS
The Company uses the following methods and assumptions to estimate the fair
value of each class of financial instrument:
CASH AND CASH EQUIVALENTS
The carrying amount approximates the fair value due to the short maturity of
those instruments.
MBS
The Company estimates the fair value of MBS based on quoted market prices.
(See Note I).
MORTGAGE LOAN RECEIVABLE
The Company estimates the fair value of its mortgage loans using the market
value of the properties which collateralize such loans, if available. Otherwise,
fair value is estimated by discounting the future cash flows using the current
rates at which similar loans would be made to borrowers with similar credit
ratings and the same remaining maturities. Based on this analysis, the Company
has determined that the fair value of the mortgage loan approximates its
carrying value.
F-29
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
S. FAIR VALUE OF FINANCIAL INSTRUMENTS (CONTINUED)
NOTE RECEIVABLE
Due to the unique nature of the note receivable and its terms the Company
has determined that the fair value of the promissory note approximates its
carrying value.
CREDIT AGREEMENT
The carrying amount approximates the fair value due to the short maturity of
those instruments.
INTEREST RATE SWAP AGREEMENT
The Company would be liable for $784,000 and $156,000 if the interest rate
swap agreement was terminated as of December 31, 1998 and 1997, respectively.
MORTGAGE NOTES PAYABLE
Mortgage notes payable were valued by discounting cash flows remaining to
maturity using comparable treasury interest rates plus current spreads. Based on
this analysis, the Company has determined that the fair value of these
liabilities approximates carrying value. Due to restrictions on transfers and
prepayment, the Company may be unable to refinance certain mortgage notes
payable at such calculated fair values.
T. PRO-FORMA RESULTS (UNAUDITED):
The following unaudited pro-forma operating results for the Company have
been prepared as if the 1998 and 1997 property acquisitions, dispositions and
equity offerings had occurred on January 1, 1997. Unaudited pro-forma financial
information is presented for informational purposes only and may not be
indicative of what the actual results of operations of the Company would have
been had the events occurred as of January 1, 1997, nor does it purport to
represent the results of operations for future periods. (Dollars in thousands
except per Share amounts).
<TABLE>
<CAPTION>
FOR THE TWELVE MONTHS
ENDED
--------------------------
<S> <C> <C>
DECEMBER 31, DECEMBER 31,
1998 1997
------------ ------------
Revenue.............................................................................. $ 192,187 $ 185,303
------------ ------------
------------ ------------
Expenses............................................................................. $ 204,308 $ 194,544
------------ ------------
------------ ------------
Net loss............................................................................. $ (10,889) $ (11,557)
------------ ------------
------------ ------------
Net loss allocated to common shareholders............................................ $ (17,047) $ (17,715)
------------ ------------
------------ ------------
Net loss per weighted average common share........................................... $ (.46) $ (.48)
------------ ------------
------------ ------------
</TABLE>
U. SHAREHOLDERS' EQUITY
PREFERRED STOCK
On September 25, 1997, the Company sold 2,737,000 shares of Series 1997-A
Convertible Preferred Stock (the "Preferred Shares"), $.01 par value, to
affiliates of Westbrook Partners, LLC at $25.00 per share ("Stated Value").
F-30
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
U. SHAREHOLDERS' EQUITY (CONTINUED)
Holders of Preferred Shares are entitled to receive, if declared by the
Board, preferential cumulative quarterly cash dividends, at the greater of the
rate of 9% per annum or the dividend payable on shares of common stock. Each
Preferred Share is convertible, at the option of the holder beginning September
19, 1998, into 2.0756 shares of common stock, based on a conversion price of
$12.04 per share of common stock, subject to certain adjustments as defined in
the agreement.
The terms of the Preferred Shares provide that it will rank prior to any
other series of preferred stock, prior to common stock and prior to any other
class or series of capital stock of the Company with respect to the payment of
dividends, the right to redemption and the distribution preference in the event
of a change in ownership or the liquidation, dissolution or winding up of the
Company.
In certain instances, including a change of control of the Company (as
defined in the agreement), holders of the Preferred Shares will be entitled to
receive at their option either (i) an amount per Preferred Share equal to 115%
of the sum of the Stated Value and all accrued and unpaid dividends or (ii)
common stock on conversion of their Preferred Shares.
The amount of cumulative preferred dividends accrued as of December 31, 1998
was approximately $787,000.
COMMON STOCK OFFERING
On November 10, 1997, the Company completed an offering of ten million
shares of common stock which provided net cash proceeds of approximately $103.1
million. The Company used the proceeds to finance the Questar Transaction, to
repay variable rate debt and for general corporate purposes.
DIVIDENDS TO SHAREHOLDERS
For federal income tax purposes, the following summarizes the tax components
of dividends paid in 1998, 1997 and 1996:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
----------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1998 1997 1996
-------------------- -------------------- --------------------
Per Share:
Ordinary income.............................................. $ .32 33.0% $ .21 23.3% $ .44 48.9%
Non-taxable distributions.................................... .64 67.0% .71 76.7% .46 51.1%
--- --------- --- --------- --- ---------
Total.................................................... $ .96 100% $ .92 100% $ .90 100%
--- --------- --- --------- --- ---------
--- --------- --- --------- --- ---------
</TABLE>
WARRANTS
On June 4, 1991 at a special meeting, the Unitholders of Krupp Cash Plus-III
Limited Partnership and Krupp Cash Plus-IV Limited Partnership (collectively the
"Participating Cash Plus Partnerships") voted in favor of and agreed to
participate in an exchange (the "Exchange") with the Company. Subsequently, the
Company was named in a consolidated lawsuit filed as a class action representing
those Unitholders related to the Exchange transaction. On August 3, 1994, the
court approved a settlement which became effective on September 6, 1994.
The settlement agreement provided that the Company pay to the plaintiff
class $1.5 million and issue three million stock warrants. Upon exercise, each
warrant entitles the holder the right to acquire one share of common stock of
the Company. The warrants were exercisable at an exercise price of
F-31
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
U. SHAREHOLDERS' EQUITY (CONTINUED)
$11.79 for a period of four years ending on September 8, 1998. On September 8,
1998, unexercised, outstanding warrants totaling 2,987,966 expired. As of that
date, 12,034 shares of common stock had been issued upon exercise of warrants.
V. SEGMENT REPORTING
The Company has adopted Statement of Financial Accounting Standards No. 131
("FAS 131"), "Disclosures about Segments of an Enterprise and Related
Information", which establishes standards for the way that public business
enterprises report information about operating segments in annual financial
statements and require that those enterprises report selected information about
operating segments in interim reports issued to shareholders.
The Company operates and develops apartment communities in Florida, Texas
and the Mid-Atlantic and Southeast regions of the United States which generated
rental income through the leasing of apartment units. The Company separately
evaluates the performance of each of its apartment communities. However, because
each of the apartment communities has similar economic characteristics,
facilities, services and tenants, the apartment communities have been aggregated
into a single real estate segment.
The Company evaluates performance based upon net operating income ("NOI")
from the combined properties in the segment. NOI is defined by the Company as
rental revenue less property operating expenses, including repairs and
maintenance and real estate taxes. Accordingly, NOI excludes non-property
revenue and expenses included in the determination of net income. NOI for the
combined properties in the segment for the years ended December 31, 1998, 1997
and 1996 was as follows:
<TABLE>
<CAPTION>
1998 1997 1996
-------------- -------------- -------------
<S> <C> <C> <C>
Rental Revenue
Multifamily.................................................... $ 175,961,701 $ 106,172,035 $ 81,711,677
Retail (a)..................................................... 3,369 3,801,573 7,738,970
-------------- -------------- -------------
Total............................................................ 175,965,070 109,973,608 89,450,647
Operating Expenses
Multifamily.................................................... 69,804,636 42,919,967 35,097,867
Retail (a)..................................................... 101,655 833,030 1,628,092
-------------- -------------- -------------
Total............................................................ 69,906,291 43,752,997 36,725,959
-------------- -------------- -------------
Net Operating Income............................................. $ 106,058,779 $ 66,220,611 $ 52,724,688
-------------- -------------- -------------
-------------- -------------- -------------
</TABLE>
F-32
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
V. SEGMENT REPORTING (CONTINUED)
The following is a reconciliation of net operating income to income (loss)
from operations before joint venture income (loss), gains on sale of assets,
minority interest and extraordinary items:
<TABLE>
<CAPTION>
1998 1997 1996
--------------- -------------- --------------
<S> <C> <C> <C>
Net Operating Income............................................ $ 106,058,779 $ 66,220,611 $ 52,724,688
Revenue:
Management fees and reimbursements............................ 3,709,023 3,157,516 --
Interest...................................................... 3,110,904 2,367,938 3,551,019
Expenses:
Depreciation and amortization................................. (70,826,673) (43,315,329) (30,171,600)
General and administrative.................................... (5,476,948) (5,065,015) (3,632,078)
Property management operations................................ (7,689,765) (5,564,851) (1,302,352)
Interest...................................................... (38,801,288) (24,005,605) (20,500,533)
Property and asset management fees............................ (15,304) (902,931) (4,717,479)
Other......................................................... (2,353,738) (4,929,237) (8,563,346)
--------------- -------------- --------------
Loss from operations before joint venture income (loss), gains
on sales of assets, minority interest and extraordinary
items......................................................... $ (12,285,010) $ (12,036,903) $ (12,611,681)
--------------- -------------- --------------
--------------- -------------- --------------
</TABLE>
- ------------------------
(a) The Company completed the liquidation of the retail portfolio in 1998.
W. SUBSEQUENT EVENTS
On March 5, 1999, as a result of the process initiated by the Board, the
Company filed a Form 8-K dated March 4, 1999 announcing that it received several
offers to acquire the Company. Among these offers was one from a group that
included Douglas Krupp, the Chairman of the Board of the Company, to acquire the
Company at a price of $11.05 per share of Common Stock. A special committee of
disinterested directors established by the Board to review and negotiate these
offers advised this group that the price of $11.05 per share was insufficient.
This group revised its offer to $12.05 per share of Common Stock. The special
committee of the Board is continuing to review and negotiate the offers the
Company received. There can be no assurance that any of these offers will result
in the consummation of the sale of the Company.
F-33
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
SCHEDULE III--REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 1998
<TABLE>
<CAPTION>
COSTS CAPITALIZED
---------------------------------------------
INITIAL COST TO SUBSEQUENT TO
PARTNERSHIP ACQUISITION GROSS AMOUNTS CARRIED AT END OF YEAR
----------------------------- -------------- ----------------------------------------------
BUILDINGS BUILDINGS BUILDINGS
AND AND AND
DESCRIPTION LAND IMPROVEMENTS IMPROVEMENTS LAND IMPROVEMENTS TOTAL
- --------------------------------- ------------- -------------- -------------- ------------- -------------- ---------------
<S> <C> <C> <C> <C> <C> <C>
RESIDENTIAL
Altamonte Bay Club
Altamonte Springs, Florida..... $ 485,599 $ 4,370,388 $ 1,130,617 $ 485,599 $ 5,501,005 $ 5,986,604
The Arbors at Breckinridge
Duluth, Georgia................ 3,260,533 23,377,361 1,390,922 3,260,533 24,768,283 28,028,816
Arbor Keys
Tamarac, Florida............... 1,073,205 9,658,843 1,042,721 1,073,205 10,701,564 11,774,769
Arborview
Belcamp, Maryland.............. 1,868,730 16,900,376 364,926 1,868,730 17,265,302 19,134,032
The Avalon on Abernathy
Atlanta, Georgia............... 2,013,424 5,177,377 5,334,674 2,013,424 10,512,051 12,525,475
Benchmark
Irving, Texas.................. 1,589,125 6,493,913 1,376,987 1,589,125 7,870,900 9,460,025
Berkshires of Addison
Addison, Texas................. 2,200,557 4,863,832 1,204,033 2,200,557 6,067,865 8,268,422
Berkshires at Crooked Creek
Durham, North Carolina......... 1,656,666 18,459,922 86,758 1,656,666 18,546,680 20,203,346
Berkshire Crossing
Houston, Texas................. 1,074,576 4,355,317 1,045,208 1,074,576 5,400,525 6,475,101
Berkshire Hills
Austin, Texas.................. 983,942 8,855,477 803,890 983,942 9,659,367 10,643,309
Berkshire Springs
Dallas, Texas.................. 3,147,218 3,778,879 1,450,256 3,147,218 5,229,135 8,376,353
Berkshire Towers
Silver Spring, Maryland........ 5,441,750 48,975,751 9,734,326 5,441,750 58,710,077 64,151,827
Berkshire West
Winter Garden, Florida......... 865,625 7,790,621 1,339,530 865,625 9,130,151 9,995,776
Bluffs of Berkshire
Austin, Texas.................. 1,786,670 16,080,034 292,478 1,786,670 16,372,512 18,159,182
British Woods
Nashville, Tennessee........... 1,212,396 10,911,569 1,217,813 1,212,396 12,129,382 13,341,778
Brookfield Trace
Mauldin, South Carolina........ 1,679,106 15,578,731 459,106 1,679,106 16,037,837 17,716,943
Brookwood Valley
Mauldin, South Carolina........ 972,241 8,863,448 707,558 972,241 9,571,006 10,543,247
Calvert's Walk
Belair, Maryland............... 1,548,125 14,022,664 480,642 1,548,125 14,503,306 16,051,431
Carlyle Place
San Antonio, Texas............. 878,453 9,115,321 199,913 878,453 9,315,234 10,193,687
The Channel
Glen Burnie, Maryland.......... 1,194,666 4,731,257 1,136,204 1,194,666 5,867,461 7,062,127
Courtleigh
Baltimore, Maryland............ 1,400,059 12,691,366 702,594 1,400,059 13,393,960 14,794,019
The Cove
Glen Burnie, Maryland.......... 1,348,446 5,924,724 1,048,677 1,348,446 6,973,401 8,321,847
Coventry
Baltimore, Maryland............ 604,447 5,479,602 317,982 604,447 5,797,584 6,402,031
Cumberland Cove
Raleigh, North Carolina........ 1,840,514 23,538,582 1,716,338 1,840,514 25,254,920 27,095,434
Diamond Ridge
Baltimore, Maryland............ 479,196 4,342,609 126,504 479,196 4,469,113 4,948,309
East Lake Village
Charlotte, North Carolina...... 531,629 4,784,665 2,787,039 531,629 7,571,704 8,103,333
Essex House
Atlanta, Georgia............... 782,908 7,046,174 214,239 782,908 7,260,413 8,043,321
The Estates
Pikesville, Maryland........... 1,352,064 12,168,571 327,024 1,352,064 12,495,595 13,847,659
Fairway Ridge
Baltimore, Maryland............ 712,766 6,414,891 963,056 712,766 7,377,947 8,090,713
6200 Gessner
Houston, Texas................. 5,149,916 7,053,676 1,387,666 5,149,916 8,441,342 13,591,258
Golf Side
Haltom City, Texas............. 1,444,701 6,989,048 1,249,070 1,444,701 8,238,118 9,682,819
<CAPTION>
YEAR
ACCUMULATED CONSTRUCTION DATE
DESCRIPTION DEPRECIATION COMPLETED ACQUIRED
- --------------------------------- --------------- ------------- -----------
<S> <C> <C> <C>
RESIDENTIAL
Altamonte Bay Club
Altamonte Springs, Florida..... $ 2,201,144 1984-1986 10/14/92
The Arbors at Breckinridge 1986-1989/
Duluth, Georgia................ 6,999,984 1995 12/17/93
Arbor Keys
Tamarac, Florida............... 571,905 1974 02/27/98
Arborview
Belcamp, Maryland.............. 1,177,632 1992 11/14/97
The Avalon on Abernathy
Atlanta, Georgia............... 3,426,862 1971 06/02/92
Benchmark
Irving, Texas.................. 1,417,361 1982 06/27/96
Berkshires of Addison
Addison, Texas................. 562,046 1980 09/26/97
Berkshires at Crooked Creek
Durham, North Carolina......... 194,097 N/A 08/25/95
Berkshire Crossing
Houston, Texas................. 265,888 1977 04/09/98
Berkshire Hills
Austin, Texas.................. 564,331 1986 02/04/98
Berkshire Springs
Dallas, Texas.................. 311,485 1978 01/26/98
Berkshire Towers
Silver Spring, Maryland........ 10,115,887 1965-1969 05/14/96
Berkshire West
Winter Garden, Florida......... 956,269 1991 05/13/97
Bluffs of Berkshire
Austin, Texas.................. 931,390 1996 01/29/98
British Woods
Nashville, Tennessee........... 2,587,798 1984 11/01/95
Brookfield Trace
Mauldin, South Carolina........ 2,733,539 1995 11/01/95
Brookwood Valley
Mauldin, South Carolina........ 2,394,422 1992 04/13/95
Calvert's Walk
Belair, Maryland............... 1,037,044 1988 11/14/97
Carlyle Place
San Antonio, Texas............. 522,875 1996 02/04/98
The Channel
Glen Burnie, Maryland.......... 593,863 1981 07/22/97
Courtleigh
Baltimore, Maryland............ 958,144 1988 11/14/97
The Cove
Glen Burnie, Maryland.......... 698,950 1976 07/22/97
Coventry
Baltimore, Maryland............ 414,773 1986 11/14/97
Cumberland Cove
Raleigh, North Carolina........ 7,321,644 1985/1995 12/19/91
Diamond Ridge
Baltimore, Maryland............ 318,089 1991 11/14/97
East Lake Village
Charlotte, North Carolina...... 2,939,641 1972 10/19/93
Essex House
Atlanta, Georgia............... 223,466 1974 07/08/98
The Estates
Pikesville, Maryland........... 883,784 1989 11/14/97
Fairway Ridge
Baltimore, Maryland............ 542,706 1966 11/14/97
6200 Gessner
Houston, Texas................. 445,570 1979 04/09/98
Golf Side
Haltom City, Texas............. 1,497,992 1980/1985 06/06/96
</TABLE>
F-34
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
SCHEDULE III--REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 1998
<TABLE>
<CAPTION>
COSTS CAPITALIZED
---------------------------------------------
INITIAL COST TO SUBSEQUENT TO
PARTNERSHIP ACQUISITION GROSS AMOUNTS CARRIED AT END OF YEAR
----------------------------- -------------- ----------------------------------------------
BUILDINGS BUILDINGS BUILDINGS
AND AND AND
DESCRIPTION LAND IMPROVEMENTS IMPROVEMENTS LAND IMPROVEMENTS TOTAL
- --------------------------------- ------------- -------------- -------------- ------------- -------------- ---------------
<S> <C> <C> <C> <C> <C> <C>
Harper's Mill
Millersville, Maryland......... 1,228,134 6,857,013 888,930 1,228,134 7,745,943 8,974,077
Hazelcrest
Baltimore, Maryland............ 118,964 1,070,680 110,371 118,964 1,181,051 1,300,015
Heraldry Square
Baltimore, Maryland............ 1,008,285 9,074,559 767,026 1,008,285 9,841,585 10,849,870
Highlands at Briarcliff
Atlanta, Georgia............... 2,846,415 5,486,182 354,142 2,846,415 5,840,324 8,686,739
Highland Ridge
Nashville, Tennessee........... 720,695 6,486,261 1,774,194 720,695 8,260,455 8,981,150
Hilltop
Baltimore, Maryland............ 133,886 1,204,978 128,012 133,886 1,332,990 1,466,876
Hunter's Glen
Plano, Texas................... 1,465,565 8,655,738 1,860,141 1,465,565 10,515,879 11,981,444
Huntington Brook
Dallas, Texas.................. 2,263,462 9,821,226 767,976 2,263,462 10,589,202 12,852,664
Huntington Chase
Norcross, Georgia.............. 1,423,939 17,865,515 2,413,163 1,423,939 20,278,678 21,702,617
Huntington Downs
Greenville, South Carolina..... 791,173 18,091,240 2,012,246 791,173 20,103,486 20,894,659
Huntington Lakes
Dallas, Texas.................. 2,781,864 15,317,450 658,134 2,781,864 15,975,584 18,757,448
Huntington Ridge
Irving, Texas.................. 1,518,045 8,059,526 339,210 1,518,045 8,398,736 9,916,781
Indigo on Forest
Dallas, Texas.................. 10,951,649 26,256,230 5,884,666 10,951,649 32,140,896 43,092,545
Jamestowne
Baltimore, Maryland............ 869,120 7,822,080 1,071,814 869,120 8,893,894 9,763,014
Kings Crossing
Houston, Texas................. 3,614,838 9,295,300 1,543,588 3,614,838 10,838,888 14,453,726
Kingwood Common I
Baltimore, Maryland............ 740,762 6,666,866 934,455 740,762 7,601,321 8,342,083
Kingwood Common II
Baltimore, Maryland............ 719,869 6,478,824 879,434 719,869 7,358,258 8,078,127
Kingwood Lake Houston, Texas..... 3,106,935 9,320,806 1,972,992 3,106,935 11,293,798 14,400,733
Lakes of Jacaranda
Plantation, Florida............ 3,060,000 17,818,748 1,195,987 3,060,000 19,014,735 22,074,735
The Lighthouse
Glen Burnie, Maryland.......... 1,088,544 5,557,023 887,763 1,088,544 6,444,786 7,533,330
Liriope
Belcamp, Maryland.............. 762,396 6,861,560 60,955 762,396 6,922,515 7,684,911
Lynn Lake
St. Petersburg, Florida........ 2,334,425 21,009,824 2,118,502 2,334,425 23,128,326 25,462,751
Newport
Tampa, Florida................. 486,478 4,378,303 2,679,285 486,478 7,057,588 7,544,066
The Oaks
Mauldin, South Carolina........ 1,509,268 6,522,462 541,200 1,509,268 7,063,662 8,572,930
Oaks of Marymont
San Antonio, Texas............. 3,613,328 7,857,554 792,858 3,613,328 8,650,412 12,263,740
Olde Forge
White Marsh, Maryland.......... 747,090 6,723,808 385,133 747,090 7,108,941 7,856,031
Park Colony
Hollywood, Florida............. 1,888,641 16,997,765 1,512,615 1,888,641 18,510,380 20,399,021
The Pines at Dunwoody
Atlanta, Georgia............... 1,854,131 16,687,179 1,695,972 1,854,131 18,383,151 20,237,282
Plantation Colony
Plantation, Florida............ 1,341,571 12,074,143 1,063,675 1,341,571 13,137,818 14,479,389
Pleasant Woods
Dallas, Texas.................. 1,714,157 4,336,521 1,095,713 1,714,157 5,432,234 7,146,391
Prescott Place
Mesquite, Texas................ 1,227,427 7,508,711 881,339 1,227,427 8,390,050 9,617,477
<CAPTION>
YEAR
ACCUMULATED CONSTRUCTION DATE
DESCRIPTION DEPRECIATION COMPLETED ACQUIRED
- --------------------------------- --------------- ------------- -----------
<S> <C> <C> <C>
Harper's Mill
Millersville, Maryland......... 732,374 1978 07/22/97
Hazelcrest
Baltimore, Maryland............ 85,273 1965 11/14/97
Heraldry Square
Baltimore, Maryland............ 714,024 1974 11/14/97
Highlands at Briarcliff
Atlanta, Georgia............... 186,879 1969 07/08/98
Highland Ridge
Nashville, Tennessee........... 1,896,334 1972 11/01/95
Hilltop
Baltimore, Maryland............ 96,690 1965 11/14/97
Hunter's Glen
Plano, Texas................... 1,786,593 1979 07/30/96
Huntington Brook
Dallas, Texas.................. 845,925 1984 09/26/97
Huntington Chase
Norcross, Georgia.............. 6,013,344 1987/1996 07/07/93
Huntington Downs
Greenville, South Carolina..... 11,194,669 1986-1987 01/15/88
Huntington Lakes
Dallas, Texas.................. 1,249,213 1984/1996 09/26/97
Huntington Ridge
Irving, Texas.................. 663,477 1984 09/26/97
Indigo on Forest
Dallas, Texas.................. 10,783,750 1984 08/31/94
Jamestowne
Baltimore, Maryland............ 634,236 1965 11/14/97
Kings Crossing
Houston, Texas................. 3,556,173 1983 03/23/93
Kingwood Common I
Baltimore, Maryland............ 549,239 1976 11/14/97
Kingwood Common II
Baltimore, Maryland............ 526,921 1979 11/14/97
Kingwood Lake Houston, Texas..... 3,736,749 1980 03/23/93
Lakes of Jacaranda
Plantation, Florida............ 8,712,671 1988-1989 03/30/90
The Lighthouse
Glen Burnie, Maryland.......... 564,455 1982 09/22/97
Liriope
Belcamp, Maryland.............. 426,512 1997 12/15/97
Lynn Lake
St. Petersburg, Florida........ 1,220,896 1983 03/11/98
Newport
Tampa, Florida................. 2,562,952 1985 10/14/92
The Oaks
Mauldin, South Carolina........ 3,228,428 1989 03/02/90
Oaks of Marymont
San Antonio, Texas............. 317,501 1975 06/18/98
Olde Forge
White Marsh, Maryland.......... 396,966 1984 02/18/98
Park Colony
Hollywood, Florida............. 5,410,550 1987 07/13/94
The Pines at Dunwoody
Atlanta, Georgia............... 615,562 1973 07/08/98
Plantation Colony
Plantation, Florida............ 4,197,590 1984 12/01/93
Pleasant Woods
Dallas, Texas.................. 1,042,855 1979 06/06/96
Prescott Place
Mesquite, Texas................ 1,500,847 1983 06/06/96
</TABLE>
F-35
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
SCHEDULE III--REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 1998
<TABLE>
<CAPTION>
COSTS CAPITALIZED
---------------------------------------------
INITIAL COST TO SUBSEQUENT TO
PARTNERSHIP ACQUISITION GROSS AMOUNTS CARRIED AT END OF YEAR
----------------------------- -------------- ----------------------------------------------
BUILDINGS BUILDINGS BUILDINGS
AND AND AND
DESCRIPTION LAND IMPROVEMENTS IMPROVEMENTS LAND IMPROVEMENTS TOTAL
- --------------------------------- ------------- -------------- -------------- ------------- -------------- ---------------
<S> <C> <C> <C> <C> <C> <C>
Prescott Place II
Mesquite, Texas................ 1,510,655 8,994,598 723,961 1,510,655 9,718,559 11,229,214
Providence
Dallas, Texas.................. 1,240,238 5,525,927 1,292,361 1,240,238 6,818,288 8,058,526
Ridgeview Chase
Westminster, Maryland.......... 1,224,841 11,023,561 335,791 1,224,841 11,359,352 12,584,193
River Oaks
Houston, Texas................. 2,464,193 8,249,691 3,442,781 2,464,193 11,692,472 14,156,665
River Parkway
Atlanta, Georgia............... 2,464,739 22,182,651 705,008 2,464,739 22,887,659 25,352,398
Rolling Wind
Baltimore, Maryland............ 1,992,812 17,935,312 552,602 1,992,812 18,487,914 20,480,726
Roper Mountain Woods
Greenville, South Carolina..... 667,352 6,006,172 1,327,305 667,352 7,333,477 8,000,829
Southpointe at Massapequa
Massapequa, New York........... 874,448 7,870,033 1,337,072 874,448 9,207,105 10,081,553
Stoneledge Plantation
Greenville, South Carolina..... 934,388 8,898,048 1,159,945 934,388 10,057,993 10,992,381
Stratton Meadows
Baltimore, Maryland............ 1,484,025 13,356,232 538,768 1,484,025 13,895,000 15,379,025
Sunchase
Bradenton, Florida............. 530,647 4,775,819 799,484 530,647 5,575,303 6,105,950
Sweetwater Ranch
Richardson, Texas.............. 3,391,413 17,313,174 321,028 3,391,413 17,634,202 21,025,615
The Timbers
Charlotte, North Carolina...... 965,823 8,692,408 1,106,252 965,823 9,798,660 10,764,483
Warren Park
Baltimore, Maryland............ 736,282 6,626,539 711,320 736,282 7,337,859 8,074,141
Westchester West
Silver Spring, Maryland........ 1,637,184 14,734,660 1,804,578 1,637,184 16,539,238 18,176,422
Williston
Baltimore, Maryland............ 277,987 2,501,884 259,413 277,987 2,761,297 3,039,284
Windover
Knoxville, Tennessee........... 890,613 8,015,515 3,502,901 890,613 11,518,416 12,409,029
Woodland Meadows
Tamarac, Florida............... 517,213 4,654,918 3,292,635 517,213 7,947,553 8,464,766
Yorktown
Houston, Texas................. 18,967,155 7,909,924 1,732,346 18,967,155 9,642,270 28,609,425
------------- -------------- -------------- ------------- -------------- ---------------
Total Residential................ $ 151,282,317 $832,226,130 $105,855,793 $ 151,282,317 $938,081,923 $ 1,089,364,240
------------- -------------- -------------- ------------- -------------- ---------------
------------- -------------- -------------- ------------- -------------- ---------------
Developments in Progress and Land
Held for Investment or Further
Developments:
Berkshire Commons
Clemson, South Carolina........ 596,279 -- 3,087,392 596,279 3,087,392 3,683,671
Berkshires at Deerfield
Atlanta, Georgia............... 5,855,505 -- 1,435,201 5,855,505 1,435,201 7,290,706
Garlington Road Land
Greenville, South Carolina..... 1,412,952 -- 383,857 1,412,952 383,857 1,796,809
Inglesby Land
Greenville, South Carolina..... 3,067,257 -- 792,972 3,067,257 792,972 3,860,229
------------- -------------- -------------- ------------- -------------- ---------------
Total Land....................... $ 10,931,993 $ -- $ 5,699,422 $ 10,931,993 $ 5,699,422 $ 16,631,415
------------- -------------- -------------- ------------- -------------- ---------------
Grand Total--
All Real Estate................ $ 162,214,310 $832,226,130 $111,555,215 $ 162,214,310 $943,781,345 $ 1,105,995,655
------------- -------------- -------------- ------------- -------------- ---------------
------------- -------------- -------------- ------------- -------------- ---------------
<CAPTION>
YEAR
ACCUMULATED CONSTRUCTION DATE
DESCRIPTION DEPRECIATION COMPLETED ACQUIRED
- --------------------------------- --------------- ------------- -----------
<S> <C> <C> <C>
Prescott Place II
Mesquite, Texas................ 1,418,384 1984 11/12/96
Providence
Dallas, Texas.................. 1,305,676 1980 06/26/96
Ridgeview Chase
Westminster, Maryland.......... 804,447 1988 11/14/97
River Oaks
Houston, Texas................. 3,392,965 1966 05/01/95
River Parkway
Atlanta, Georgia............... 700,482 1973 07/08/98
Rolling Wind
Baltimore, Maryland............ 1,304,058 1995 11/14/97
Roper Mountain Woods
Greenville, South Carolina..... 4,094,158 1984 01/15/88
Southpointe at Massapequa
Massapequa, New York........... 3,602,914 1969 10/14/92
Stoneledge Plantation
Greenville, South Carolina..... 5,583,859 1986 01/15/88
Stratton Meadows
Baltimore, Maryland............ 987,324 1989 11/14/97
Sunchase
Bradenton, Florida............. 645,617 1987 05/13/97
Sweetwater Ranch
Richardson, Texas.............. 1,374,629 1995 09/26/97
The Timbers
Charlotte, North Carolina...... 3,555,231 1989 03/22/93
Warren Park
Baltimore, Maryland............ 525,755 1964 11/14/97
Westchester West
Silver Spring, Maryland........ 2,203,247 1970-1972 01/01/97
Williston
Baltimore, Maryland............ 194,663 1967 11/14/97
Windover
Knoxville, Tennessee........... 2,829,709 1974 11/01/95
Woodland Meadows
Tamarac, Florida............... 3,519,536 1974 10/14/92
Yorktown
Houston, Texas................. 574,652 1979 02/04/98
---------------
Total Residential................ $169,877,537
---------------
---------------
Developments in Progress and Land
Held for Investment or Further
Developments:
Berkshire Commons
Clemson, South Carolina........ -- N/A 04/29/98
Berkshires at Deerfield
Atlanta, Georgia............... -- N/A 12/17/97
Garlington Road Land
Greenville, South Carolina..... -- N/A 06/10/96
Inglesby Land
Greenville, South Carolina..... -- N/A 01/10/97
---------------
Total Land....................... $ --
---------------
Grand Total--
All Real Estate................ $169,877,537
---------------
---------------
</TABLE>
- ----------------------------------
Notes: The depreciable life of a residential property is 3-25 years.
The aggregate cost of the Company's real estate for federal income tax
purposes is approximately $895,335,000, and the aggregate accumulated
depreciation for federal income tax purposes is approximately $85,615,000.
F-36
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
SCHEDULE III--REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 1998
Reconciliation of Real Estate and Accumulated Depreciation for each of the
three years ended December 31:
<TABLE>
<CAPTION>
1998 1997 1996
---------------- -------------- --------------
<S> <C> <C> <C>
REAL ESTATE
Balance, beginning of year.................................... $ 880,385,514 $ 585,795,316 $ 465,846,375
Acquisition and improvements.................................. 258,337,686 341,218,085 146,774,969
Sales and retirements......................................... (32,727,545) (46,627,887) (26,826,028)
---------------- -------------- --------------
Balance at December 31........................................ $ 1,105,995,655 $ 880,385,514 $ 585,795,316
---------------- -------------- --------------
---------------- -------------- --------------
ACCUMULATED DEPRECIATION
Balance, beginning of year.................................... $ 129,280,507 $ 106,869,507 $ 77,641,555
Depreciation expense.......................................... 57,502,706 35,228,587 29,032,162
Provision for losses.......................................... -- 1,850,000 7,500,000
Sales and retirements......................................... (16,905,676) (14,667,587) (7,304,210)
---------------- -------------- --------------
Balance at December 31........................................ $ 169,877,537 $ 129,280,507 $ 106,869,507
---------------- -------------- --------------
---------------- -------------- --------------
</TABLE>
F-37
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
SUMMARY QUARTERLY FINANCIAL INFORMATION
(UNAUDITED)
The consolidated results of operations of the Company for the quarters ended
March 31, June 30, September 30 and December 31, 1998 and 1997 are as follows
(dollars in thousands, except per share amounts):
<TABLE>
<CAPTION>
MARCH 31, JUNE 30,
-------------------------- --------------------------
<S> <C> <C> <C> <C>
1998 1997 1998 1997
------------ ------------ ------------ ------------
Revenue.................................................. $ 41,015 $ 25,403 $ 44,112 $ 26,685
------------ ------------ ------------ ------------
------------ ------------ ------------ ------------
Loss from operations..................................... (1,664) (2,502) (2,195) (745)
Joint venture income (loss).............................. 52 (351) 81 (157)
Gains (losses) on sales of investments................... 513 6,433 874 71
Minority interest........................................ 471 (685) 553 206
------------ ------------ ------------ ------------
Income before extraordinary item......................... (628) 2,895 (687) (625)
------------ ------------ ------------ ------------
Extraordinary items...................................... -- -- (95) --
------------ ------------ ------------ ------------
Net income (loss)........................................ $ (628) $ 2,895 $ (782) $ (625)
------------ ------------ ------------ ------------
------------ ------------ ------------ ------------
Income allocated to preferred shareholders............... (1,540) -- (1,557) --
------------ ------------ ------------ ------------
Net income (loss) allocated to common shareholders....... (2,168) 2,895 (2,339) (625)
------------ ------------ ------------ ------------
------------ ------------ ------------ ------------
Net income (loss) per weighted average share............. $ (.06) $ .11 $ (.06) $ (.02)
------------ ------------ ------------ ------------
------------ ------------ ------------ ------------
Dividends paid per share................................. $ .2325 $ .2250 $ .2425 $ .2250
------------ ------------ ------------ ------------
------------ ------------ ------------ ------------
Weighted average shares outstanding...................... 36,615,474 25,420,444 36,738,176 25,480,709
------------ ------------ ------------ ------------
------------ ------------ ------------ ------------
</TABLE>
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31,
-------------------------- --------------------------
<S> <C> <C> <C> <C>
1998 1997 1998 1997
------------ ------------ ------------ ------------
Revenue.................................................. $ 48,461 $ 28,416 $ 49,197 $ 34,995
------------ ------------ ------------ ------------
------------ ------------ ------------ ------------
Loss from operations..................................... (3,816) (5,078) (4,610) (3,712)
Joint venture income (loss).............................. -- 131 -- (4,533)
Gains (losses) on sales of investments................... (21) -- (101) (93)
Minority interest........................................ 1,076 896 1,270 1,780
------------ ------------ ------------ ------------
Income before extraordinary item......................... (2,761) (4,051) (3,441) (6,558)
Extraordinary items...................................... (383) (90) -- --
------------ ------------ ------------ ------------
Net income (loss)........................................ $ (3,144) $ (4,141) $ (3,441) $ (6,558)
------------ ------------ ------------ ------------
------------ ------------ ------------ ------------
Income allocated to preferred shareholders............... (1,522) (85) (1,540) (1,574)
------------ ------------ ------------ ------------
Net income (loss) allocated to common shareholders....... (4,666) (4,226) (4,981) (8,132)
------------ ------------ ------------ ------------
------------ ------------ ------------ ------------
Net income (loss) per weighted average share............. $ (.13) $ (.16) $ (.14) $ (.26)
------------ ------------ ------------ ------------
------------ ------------ ------------ ------------
Dividends paid per share................................. $ .2425 $ .2325 $ .2425 $ .2325
------------ ------------ ------------ ------------
------------ ------------ ------------ ------------
Weighted average shares outstanding...................... 36,707,533 25,738,248 36,711,488 31,704,588
------------ ------------ ------------ ------------
------------ ------------ ------------ ------------
</TABLE>
F-38
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
------------------------
CONSOLIDATED FINANCIAL STATEMENTS
FOR THE QUARTER ENDED JUNE 30, 1999
F-39
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
JUNE 30, DECEMBER 31,
1999 1998
---------------- ----------------
<S> <C> <C>
(UNAUDITED)
ASSETS
Real estate assets: (Note 2)
Multifamily apartment complexes, net of accumulated depreciation........... $ 924,163,691 $ 919,486,703
Mortgage loans, net of purchase discounts.................................. 2,401,911 2,376,227
Land and construction-in-progress.......................................... 21,136,620 10,974,377
Land held for future development........................................... 5,838,950 5,657,038
---------------- ----------------
Total real estate assets............................................... 953,541,172 938,494,345
Cash and cash equivalents.................................................... 20,085,674 12,366,880
Mortgage-backed securities, net ("MBS")...................................... -- 4,936,979
Note receivable.............................................................. 3,999,000 7,500,000
Escrows...................................................................... 16,188,849 16,305,255
Deferred charges and other assets............................................ 15,677,082 19,854,353
Workforce and other intangible assets, net of accumulated amortization....... 5,263,863 9,449,030
---------------- ----------------
Total assets........................................................... $ 1,014,755,640 $ 1,008,906,842
---------------- ----------------
---------------- ----------------
LIABILITIES AND SHAREHOLDERS' EQUITY
Liabilities:
Credit agreement (Note 3).................................................. $ 180,000,000 $ 135,100,000
Construction loan (Note 3)................................................. 11,440,613 11,362,891
Mortgage notes payable (Note 3)............................................ 423,992,282 426,236,427
Tenant security deposits and prepaid rents................................. 8,642,498 8,309,738
Accrued real estate taxes, insurance, other liabilities and accounts
payable.................................................................. 21,788,272 25,218,826
---------------- ----------------
Total liabilities...................................................... 645,863,665 606,227,882
---------------- ----------------
Minority interest in operating partnership................................... 62,376,944 69,661,451
Commitments and contingencies (Note 2 and 7)................................. -- --
Shareholders' equity:
Preferred stock ("Preferred Shares"), $0.01 par value; 60,000,000 shares
authorized, 2,737,000 shares issued...................................... 27,370 27,370
Common stock ("Shares"), $0.01 par value; 140,000,000 Shares authorized and
37,261,249 and 37,219,897 Shares issued, respectively.................... 372,613 372,199
Additional paid-in capital................................................. 357,103,602 375,186,299
Accumulated deficit........................................................ (47,032,979) (38,550,284)
Loans receivable--officers................................................. (2,212,500) (2,275,000)
Less common stock in treasury, at cost (506,497 Shares).................... (1,743,075) (1,743,075)
---------------- ----------------
Total shareholders' equity................................................... 306,515,031 333,017,509
---------------- ----------------
Total liabilities and shareholders' equity................................... $ 1,014,755,640 $ 1,008,906,842
---------------- ----------------
---------------- ----------------
</TABLE>
The accompanying notes are an integral part of the Consolidated Financial
Statements.
F-40
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
<TABLE>
<CAPTION>
FOR THE THREE MONTHS FOR THE SIX MONTHS
ENDED JUNE 30, ENDED JUNE 30,
---------------------------- ----------------------------
<S> <C> <C> <C> <C>
1999 1998 1999 1998
------------- ------------- ------------- -------------
Revenue:
Rental............................................ $ 49,179,324 $ 42,414,414 $ 97,994,395 $ 81,633,079
Interest from mortgage loan and note receivable... 197,009 298,659 431,003 593,458
Interest income from MBS.......................... 89,798 160,884 201,077 326,939
Management fees and reimbursements................ 912,009 939,450 1,709,514 1,891,254
Other interest income............................. 294,024 298,604 618,655 682,179
------------- ------------- ------------- -------------
Total revenue................................... 50,672,164 44,112,011 100,954,644 85,126,909
------------- ------------- ------------- -------------
Expenses:
Property operating................................ 11,008,171 9,346,781 22,077,681 18,499,624
Repairs and maintenance........................... 3,787,277 3,092,433 7,198,608 5,275,703
Real estate taxes................................. 4,810,169 4,260,836 9,648,163 8,111,839
Property management operations.................... 1,761,950 1,876,665 4,153,315 3,923,594
General and administrative........................ 1,390,251 1,685,403 2,880,864 3,365,288
Interest (Note 4)................................. 11,256,225 9,156,018 22,473,503 17,167,408
Costs associated with strategic alternatives...... 1,523,870 -- 4,572,243 --
Amortization of acquired workforce and intangible
assets.......................................... 1,509,851 3,258,048 4,185,167 6,516,097
Depreciation and amortization..................... 15,766,806 13,631,235 31,645,643 26,126,769
------------- ------------- ------------- -------------
Total expenses.................................. 52,814,570 46,307,419 108,835,187 88,986,322
------------- ------------- ------------- -------------
Loss from operations before joint venture income,
gain on sales of assets, minority interest and
extraordinary items............................... (2,142,406) (2,195,408) (7,880,543) (3,859,413)
Joint venture income................................ -- 80,506 -- 132,454
Gain on sales of assets............................. 195,718 874,515 195,718 1,387,247
Minority interest in Operating Partnership.......... 729,327 552,697 2,281,255 1,023,472
------------- ------------- ------------- -------------
Income (loss) before extraordinary items............ (1,217,361) (687,690) (5,403,570) (1,316,240)
Extraordinary items, net of minority interest....... -- (94,613) -- (94,613)
------------- ------------- ------------- -------------
Net loss............................................ (1,217,361) (782,303) (5,403,570) (1,410,853)
Income allocated to preferred shareholders.......... (1,539,562) (1,556,669) (3,079,125) (3,096,232)
------------- ------------- ------------- -------------
Net loss allocated to common shareholders........... $ (2,756,923) $ (2,338,972) $ (8,482,695) $ (4,507,085)
------------- ------------- ------------- -------------
------------- ------------- ------------- -------------
Earnings per common share (basic and diluted): Loss
before extraordinary item......................... $ (.08) $ (.06) $ (.23) $ (.12)
------------- ------------- ------------- -------------
------------- ------------- ------------- -------------
Net loss.......................................... $ (.08) $ (.06) $ (.23) $ (.12)
------------- ------------- ------------- -------------
------------- ------------- ------------- -------------
Weighted average shares........................... 36,747,444 36,738,176 36,730,987 36,677,369
------------- ------------- ------------- -------------
------------- ------------- ------------- -------------
</TABLE>
The accompanying notes are an integral part of the Consolidated Financial
Statements.
F-41
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CHANGES IN SHAREHOLDERS' EQUITY
FOR THE SIX MONTHS ENDED JUNE 30, 1999
(UNAUDITED)
<TABLE>
<CAPTION>
SERIES 1997-A
CONVERTIBLE
PREFERRED STOCK COMMON STOCK
AT PAR AT PAR ADDITIONAL
--------------------- ------------------------ PAID-IN ACCUMULATED
SHARES AMOUNT SHARES AMOUNT CAPITAL DEFICIT
---------- --------- ------------ ---------- -------------- --------------
<S> <C> <C> <C> <C> <C> <C>
Balance, December 31, 1998........... 2,737,000 $ 27,370 36,713,400 $ 372,199 $ 375,186,299 $ (38,550,284)
Net loss............................. -- -- -- -- -- (5,403,570)
Stock issuance costs................. -- -- -- -- (58,709) --
Preferred dividends.................. -- -- -- -- -- (3,079,125)
Conversion of Units to Common
Shares.............................. -- -- 35,752 358 268,043 --
Proceeds from the exercise of stock
options............................. -- -- 5,600 56 61,544 --
Stock purchase loans-- forgiveness... -- -- -- -- -- --
Adjustment for minority interest
ownership of Operating
Partnership......................... -- -- -- -- (262,829) --
Common dividends..................... -- -- -- -- (18,090,746) --
---------- --------- ------------ ---------- -------------- --------------
Balance, June 30, 1999............... 2,737,000 $ 27,370 36,754,752 $ 372,613 $ 357,103,602 $ (47,032,979)
---------- --------- ------------ ---------- -------------- --------------
---------- --------- ------------ ---------- -------------- --------------
<CAPTION>
LOANS TREASURY
RECEIVABLE- STOCK
OFFICERS AT COST TOTAL
------------- ------------- --------------
<S> <C> <C> <C>
Balance, December 31, 1998........... $ (2,275,000) $ (1,743,075) $ 333,017,509
Net loss............................. -- -- (5,403,570)
Stock issuance costs................. -- -- (58,709)
Preferred dividends.................. -- -- (3,079,125)
Conversion of Units to Common
Shares.............................. -- -- 268,401
Proceeds from the exercise of stock
options............................. -- -- 61,600
Stock purchase loans-- forgiveness... 62,500 -- 62,500
Adjustment for minority interest
ownership of Operating
Partnership......................... -- -- (262,829)
Common dividends..................... -- -- (18,090,746)
------------- ------------- --------------
Balance, June 30, 1999............... $ (2,212,500) $ (1,743,075) $ 306,515,031
------------- ------------- --------------
------------- ------------- --------------
</TABLE>
The accompanying notes are an integral
part of the Consolidated Financial Statements.
F-42
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
FOR THE SIX MONTHS
ENDED JUNE 30,
------------------------------
1999 1998
-------------- --------------
<S> <C> <C>
Operating activities:
Net loss........................................................................ $ (5,403,570) $ (1,410,853)
Adjustments to reconcile net loss to net cash provided by operating activities:
Depreciation and amortization................................................. 31,645,643 26,126,769
Amortization of workforce and intangible assets............................... 4,185,167 6,516,097
Joint venture income.......................................................... -- (132,454)
Gain on sales of assets....................................................... (195,718) (1,387,247)
Stock purchase loan forgiveness............................................... 62,500 125,414
Amortization of purchase discounts............................................ (78,978) (75,932)
Minority interest in Operating Partnership.................................... (2,281,255) (1,023,472)
Amortization of deferred financing costs...................................... 832,789 766,410
(Increase) decrease in operating escrows and other assets..................... 3,357,440 (1,574,580)
Increase (decrease) in accrued real estate taxes, insurance, other liabilities
and accounts payable........................................................ (3,700,554) 6,544,399
Increase in tenant security deposits, prepaid rents and escrows............... 332,760 1,688,724
-------------- --------------
Net cash provided by operating activities................................... 28,756,224 36,163,275
-------------- --------------
Investing activities:
Cost to acquire properties...................................................... (25,727,754) (85,471,045)
Proceeds from sale of properties................................................ -- 17,209,116
Recurring capital expenditures (6,268,221) (2,763,546)
Rehabilitation and non-recurring capital expenditures........................... (4,174,525) (12,354,208)
Land acquisition and construction in progress................................... (10,344,957) (9,801,096)
Distributions received from joint venture in excess of earnings................. -- 774,151
Distribution from sale of joint venture asset, net.............................. -- 14,883,968
Principal collections on MBS.................................................... 1,002,310 1,380,861
Proceeds from sale of MBS....................................................... 4,140,071 --
Principal collections on note receivable........................................ 3,501,000 --
Principal collections on mortgage loan.......................................... 43,610 40,440
Escrow established at acquisition of properties................................. -- (1,991,498)
-------------- --------------
Net cash used for investing activities...................................... (37,828,466) (78,092,857)
-------------- --------------
</TABLE>
F-43
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS (CONTINUED)
<TABLE>
<CAPTION>
FOR THE SIX MONTHS
ENDED JUNE 30,
-------------------------------
1999 1998
-------------- ---------------
(UNAUDITED) (UNAUDITED)
<S> <C> <C>
Financing activities:
Advances under credit agreement................................................. $ 44,900,000 $ 84,000,000
Advances under construction loan................................................ 77,722 7,433,984
Payment of financing costs...................................................... (47,881) (1,591,119)
Costs associated with issuance of stock......................................... (58,709) (276,042)
Dividends to preferred stockholders............................................. (3,079,125) (3,096,232)
Principal payments on mortgage notes payable.................................... (2,244,145) (1,967,692)
Payoff of mortgage notes payable................................................ -- (17,433,697)
Proceeds from the exercise of stock options..................................... 61,600 31,126
Proceeds from exercise of employee stock options................................ -- --
Dividends to common shareholders................................................ (18,090,746) (17,432,027)
Distributions to minority unitholders........................................... (4,727,680) (3,719,662)
-------------- ---------------
Net cash provided by financing activities..................................... 16,791,036 45,948,639
-------------- ---------------
Net increase in cash and cash equivalents....................................... 7,718,794 4,019,057
Cash and cash equivalents, beginning of period.................................. 12,366,880 9,859,110
-------------- ---------------
Cash and cash equivalents, end of period........................................ $ 20,085,674 $ 13,878,167
-------------- ---------------
-------------- ---------------
Supplemental cash flow disclosure:
Cash paid for interest during period............................................ $ 23,040,570 $ 18,430,663
-------------- ---------------
-------------- ---------------
Interest capitalized during period.............................................. $ 756,665 $ 853,259
-------------- ---------------
-------------- ---------------
Supplemental disclosure of non-cash financing and investing activities:
Property acquisitions......................................................... $ (25,727,754) $ (142,394,383)
Debt assumed in property acquisitions......................................... -- 38,582,860
Units issued for property acquisitions........................................ -- 18,340,478
-------------- ---------------
Cash to acquire property...................................................... $ (25,727,754) $ (85,471,045)
-------------- ---------------
-------------- ---------------
Conversion of Units to Shares................................................... $ 268,401 $ 960,202
-------------- ---------------
-------------- ---------------
Shares issued in satisfaction of note payable................................... $ -- $ 2,130,000
-------------- ---------------
-------------- ---------------
Shares issued for stock purchase loans.......................................... $ -- $ 1,500,000
-------------- ---------------
-------------- ---------------
Reclassification of construction in progress to multifamily apartment
complexes..................................................................... $ -- $ 6,406,064
-------------- ---------------
-------------- ---------------
</TABLE>
The accompanying notes are an integral
part of the Consolidated Financial Statements.
F-44
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
1. ORGANIZATION
Berkshire Realty Company, Inc. and Subsidiaries (the "Company") was formed
on April 26, 1990 as an equity real estate investment trust ("REIT") and
commenced operations on June 27, 1991. The Company reorganized as an Umbrella
Partnership ("UPREIT") on May 1, 1995 when the Company contributed substantially
all of its assets subject to all liabilities to BRI OP Limited Partnership. The
Company has an infinite life; however, the Company's Restated Certificate of
Incorporation, as amended, requires the Company's Board of Directors (the
"Board") to prepare and submit on or before December 31, 1998, a Plan of
Liquidation and Dissolution (the "Plan") to the shareholders, together with the
Board's recommendation whether to adopt or reject the Plan. As a result, in May,
1998, the Company engaged two investment banking firms, Lazard Freres & Co. LLC
and Lehman Brothers Inc., to assist the Company in the exploration and
evaluation of strategic alternatives. These alternatives included (but were not
limited to) potential sale or merger of the Company or the adoption of the Plan.
The Board of Directors recommended that the shareholders not approve the Plan.
On July 21, 1999, at a Special Meeting of Stockholders, the shareholders voted
to reject the Plan.
On April 13, 1999, the Company and Berkshire Realty Holdings, L.P., a
partnership formed by the Company's Chairman of the Board, Douglas Krupp, and
affiliates of Blackstone Real Estate Advisors and Whitehall Street Real Estate
Limited Partnership XI (an affiliate of Goldman, Sachs & Co.), entered into a
definitive merger agreement ("Merger Agreement"). The Company's Board of
Directors has approved the Merger Agreement based on a recommendation from a
special committee of the Board comprised of four independent directors. Pursuant
to the terms of the agreement, if the merger is consummated, shareholders of
Berkshire will receive $12.25 in cash per share of common stock. If the merger
is consummated, limited partners in BRI OP Limited Partnership ("Operating
Partnership"), Berkshire's operating partnership, will be able to elect to (i)
receive $12.25 per Operating Partnership unit ("Unit" or "OP Unit") or (ii)
become limited partners of the acquiring partnership. The transaction must be
approved by a majority of shareholders. In June, 1999, the Company filed
preliminary proxy materials with the Securities and Exchange Commission related
to the Merger Agreement. The transaction, if approved, is scheduled to close in
the fourth quarter of 1999.
2. SIGNIFICANT ACCOUNTING POLICIES
These financial statements reflect the consolidated financial position,
results of operations, changes in shareholders' equity and cash flows of the
Company, using the historical cost of assets, liabilities and results of
operations.
Certain information and footnote disclosures normally included in financial
statements prepared in accordance with generally accepted accounting principles
have been condensed or omitted in this report on Form 10-Q pursuant to the Rules
and Regulations of the Securities and Exchange Commission. In the opinion of
management, the disclosures contained in this report are adequate to make the
information presented not misleading. See Notes to the Consolidated Financial
Statements included in the Company's Annual Report on Form 10-K/A for the year
ended December 31, 1998 for additional information relevant to significant
accounting policies followed by the Company.
In the opinion of management, the accompanying unaudited financial
statements reflect all adjustments necessary to present fairly the Company's
financial position as of June 30, 1999 and the results of its operations for the
three and six months ended June 30, 1999 and 1998 and cash flows for the six
months ended June 30, 1999 and 1998.
F-45
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
3. MULTIFAMILY AND RETAIL PROPERTY
The results of operations for the three and six months ended June 30, 1999
are not necessarily indicative of the results which may be expected for the full
year. See Management's Discussion and Analysis of Financial Condition and
Results of Operations included in this report.
As of June 30, 1999, the Company had investments in 82 apartment communities
in eight states totaling 24,387 units. The Company was also engaged in the
development of apartment communities and currently has 655 units under
construction.
The following summarizes the carrying value of the Company's multifamily
apartment complexes (in thousands):
<TABLE>
<CAPTION>
JUNE 30, DECEMBER 31,
1999 1998
---------- ------------
<S> <C> <C>
Land............................................................... $ 153,897 $ 151,282
Buildings and improvements......................................... 789,861 768,270
Appliances, carpeting and equipment................................ 181,775 169,812
---------- ------------
Total multifamily property......................................... 1,125,533 1,089,364
Accumulated depreciation........................................... (201,369) (169,877)
---------- ------------
$ 924,164 $ 919,487
---------- ------------
---------- ------------
</TABLE>
ACQUISITIONS
On January 7, 1999, the Company acquired Granite Run Apartments, a 264-unit
apartment community located in Baltimore, Maryland, for $25.7 million. The
Company paid cash to acquire the property. Granite Run was the second of four
properties that the Company was contractually obligated to acquire from Questar
Builders, Inc., an affiliate of a former officer and current shareholder and OP
Unitholder of the Company.
The Company is obligated, upon satisfaction of certain conditions, to
acquire two additional newly-developed properties totaling 405 units for an
approximate cost of $58.9 million from Questar Builders, Inc. The properties
were in various stages of development as of June 30, 1999. It is expected that
the first property will be completed in the third or fourth quarter of 1999 and
the remaining property will be completed in 2000.
DISPOSITIONS
Subsequent to June 30, 1999, the Company contracted with unaffiliated
parties to sell four multifamily assets, British Woods, Highland Ridge, Windover
and Essex House, at an aggregate price of approximately $41.7 million which is
expected to result in a gain of approximately $16.5 million. The transactions
are scheduled to close in the third or fourth quarter of 1999.
DEVELOPMENT
In December 1997, the Company purchased a 60-acre parcel of land in Atlanta,
Georgia for approximately $5.8 million for the development of Berkshires at
Deerfield, a 478 unit apartment community. Construction began in the third
quarter of 1998. The total cost of the project to date is approximately $10.9
million.
F-46
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
On April 29, 1998, the Company acquired 12.6 acres located near Clemson,
South Carolina for approximately $571,000. Construction of Berkshire Commons, a
177-unit student housing development, began in the third quarter of 1998 on this
site. The total cost of the project to date is approximately $10.3 million.
The Company also owns two other parcels of land located in Greenville, South
Carolina.
Subsequent to June 30, 1999, the Company contracted with unaffiliated
parties to sell the development projects, Berkshires at Deerfield and Berkshire
Commons. Additionally, the Company contracted to sell one of the parcels of
land. The sales of the development assets and the land parcel are expected to
result in a gain of approximately $800,000 and are scheduled to close in the
third or fourth quarter of 1999.
4. DEBT AGREEMENTS
As of June 30, 1999, the Company had a credit agreement with nine
participating commercial banks for a $180 million unsecured revolving line of
credit ("Credit Agreement"). The following summarizes the Company's borrowings
on the Credit Agreement as of June 30, 1999:
<TABLE>
<CAPTION>
CONTRACT CONTRACT INTEREST PRINCIPAL
BORROWINGS START DATE END DATE RATE AMOUNT
- ------------------------------------- -------------- ----------- ----------- --------------
<S> <C> <C> <C> <C>
LIBOR contract....................... 06/11/99 08/10/99 6.3313% $ 53,000,000
LIBOR contract....................... 07/01/99 08/30/99 6.5500% 127,000,000
--------------
$ 180,000,000
--------------
--------------
</TABLE>
Subsequent to June 30, 1999 the Company repriced the $53,000,000 contract
due August 10, 1999 at an interest rate of 6.4875% with a contract end date of
September 9, 1999.
The Company has a construction loan commitment of $13.1 million with two
commercial banks to fund the completed development of Berkshires at Crooked
Creek ("Construction Loan"). The agreement requires monthly interest payments at
a variable rate set at 150 basis points over LIBOR. The outstanding principal
balance will be due December 31, 1999. As of June 30, 1999, the Company's
borrowings on the Construction Loan totaled $11,440,613 and had an interest rate
of 6.5625% with a contract end date of August 17, 1999. Subsequent to June 30,
1999, the Company borrowed an additional $1,100,000 on the Construction Loan at
an interest rate of 6.6875% with a contract end date of August 23, 1999.
5. PRO-FORMA RESULTS (UNAUDITED)
The following unaudited pro-forma operating results for the Company have
been prepared as if the 1999 and 1998 property acquisitions, dispositions and
equity transactions had occurred on January 1, 1998. Unaudited pro-forma
financial information is presented for informational purposes only and may not
be indicative of what the actual results of operations of the Company would have
F-47
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
been had the events occurred as of January 1, 1998, nor does it purport to
represent the results of operations for future periods. (Dollars in thousands
except per share amounts).
<TABLE>
<CAPTION>
FOR THE SIX MONTHS ENDED
--------------------------
<S> <C> <C>
JUNE 30, JUNE 30,
1999 1998
------------ ------------
Revenue.......................................................... $ 101,200 $ 96,832
Expenses including depreciation.................................. $ 110,372 $ 103,338
------------ ------------
Net loss allocated to common shareholders........................ $ (9,172) $ (6,506)
------------ ------------
------------ ------------
Net loss per weighted average common share....................... $ (.25) $ (.18)
------------ ------------
------------ ------------
</TABLE>
6. SEGMENT REPORTING
The Company has adopted Statement of Financial Accounting Standards No. 131
("FAS 131"), "Disclosures about Segments of an Enterprise and Related
Information", which establishes standards for the way that public business
enterprises report information about operating segments in annual financial
statements and require that those enterprises report selected information about
operating segments in interim reports issued to shareholders.
The Company operates and develops apartment communities in Florida, Texas
and the Mid-Atlantic and Southeast regions of the United States which generate
rental income through the leasing of apartment units. The Company separately
evaluates the performance of each of its apartment communities. However, because
each of the apartment communities has similar economic characteristics,
facilities, services and tenants, the apartment communities have been aggregated
into a single real estate segment.
The Company evaluates performance based upon net operating income ("NOI")
from the combined properties in the segment. NOI is defined by the Company as
rental revenue less property operating expenses, including repairs and
maintenance and real estate taxes. Accordingly, NOI excludes non-property
revenue and expenses included in the determination of net income. NOI for the
combined properties in the segment for the six month periods ended June 30, 1999
and 1998 was as follows:
<TABLE>
<CAPTION>
1999 1998
------------- -------------
<S> <C> <C>
Rental Revenue
Multifamily.................................................. $ 97,994,395 $ 81,629,710
Retail (a)................................................... -- 3,369
------------- -------------
Total.......................................................... 97,994,395 81,633,079
Operating Expenses
Multifamily.................................................. 38,924,452 31,786,095
Retail(a).................................................... -- 101,071
------------- -------------
Total.......................................................... 38,924,452 31,887,166
------------- -------------
Net Operating Income........................................... $ 59,069,943 $ 49,745,913
------------- -------------
------------- -------------
</TABLE>
F-48
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
The following is a reconciliation of net operating income to loss from
operations before joint venture income, gain on sale of assets and minority
interest:
<TABLE>
<CAPTION>
1999 1998
------------- -------------
<S> <C> <C>
Net operating income........................................... $ 59,069,943 $ 49,745,913
Revenue:
Management fees and reimbursements........................... 1,709,514 1,891,254
Interest..................................................... 1,250,735 1,602,576
Expenses:
Depreciation and Amortization................................ (35,830,810) (32,642,866)
General and administrative................................... (2,880,864) (3,365,288)
Property management operations............................... (4,153,315) (3,923,594)
Interest..................................................... (22,473,503) (17,167,408)
Costs associated with strategic alternatives................. (4,572,243) --
------------- -------------
Loss from operations before joint venture income, gain on sales
of assets and minority interest.............................. $ (7,880,543) $ (3,859,413)
------------- -------------
------------- -------------
</TABLE>
(a) The Company completed the liquidation of the retail portfolio in 1998.
7. CONTINGENCIES
On June 18, 1999, a purported class action lawsuit, FIELDS V. BERKSHIRE
REALTY COMPANY, INC., ET AL., was initiated by a shareholder against the Company
and each of the Directors (including the Chairman of the Board, Douglas Krupp)
alleging, among other things, that the defendants breached their fiduciary
duties to the shareholders in connection with various actions taken by the
defendants with respect to the approval of the proposed merger transaction
whereby Berkshire Realty Holdings, L.P. (the "Potential Acquiror"), an entity
formed by Mr. Krupp and affiliates of Blackstone Real Estate Advisors and
Whitehall Street Real Estate Limited Partnership XI may acquire ownership of the
Company ("Merger Transaction"). The complaint further alleges that the price
offered by the Potential Acquiror for the shares of the Company's stock was
inadequate. The lawsuit was filed in the Chancery Court of the State of Delaware
in and for New Castle County. The complaint seeks, among other things,
injunctive relief and unspecified money damages. The Company believes that it
and the directors have meritorious defenses to the allegations made in the
complaint and intends to contest the lawsuit vigorously.
On July 9, 1999 a purported class action lawsuit, PERTON V. BERKSHIRE REALTY
COMPANY, INC., ET AL., was initiated by a shareholder against the Company, each
of the Company's Directors (including the Chairman of the Board, Douglas Krupp),
Berkshire Realty Holdings, L.P., and BRI Acquisition, LLC, alleging, among other
things, that the defendants breached their fiduciary duties to the Company
stockholders in connection with various actions taken by them with respect to
the Merger Transaction. The lawsuit was filed in the Chancery Court of the State
of Delaware in and for New Castle County. The complaint seeks, among other
things, injunctive relief and unspecified money damages. The Company believes
that it and the individual defendants have meritorious defenses to the
allegations made in the complaint and intends to contest the lawsuit vigorously.
On July 22, 1999, Berkshire Apartments, Inc. ("Apartments"), in its capacity
as general partner of BRI OP Limited Partnership (the "Operating Partnership"),
and the Company commenced an action
F-49
<PAGE>
BERKSHIRE REALTY COMPANY, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
seeking declaratory relief in the United States District Court for the District
of Massachusetts against Stephen M. Gorn, Morton Gorn, and John B. Colvin in
response to claims recently raised by these individuals. Messrs. Gorn, Gorn and
Colvin are each shareholders in the Company, OP Unitholders and former employees
or consultants to the Company, and have recently claimed that they and their
affiliates were fraudulently induced to exchange certain properties for OP
Units, that their employment and consulting relationships with the Company were
wrongly terminated, and that the Company and Apartments breached their fiduciary
duties to these individuals in connection with various actions taken with
respect to the Merger Transaction. The Company and Apartments have sought a
declaration that these claims are without merit, and, do not support monetary or
injunctive relief. In response to this action, on August 3, 1999, Messrs. Gorn,
Gorn and Colvin, and their affiliated entity Questar Properties, Inc., commenced
their own action against the Company, the Operating Partnership, Mr. Krupp as
Chairman of the Board of Directors of the Company, David F. Marshall as
President and Chief Executive Officer of the Company, and David J. Olney as
Executive Vice President of the Company in the United States District Court for
the District of Maryland and moved to dismiss or transfer the Company's suit in
favor of the newly-filed Maryland case. The new Maryland suit is factually
similar to the Company's action. The new suit does not, however, raise any claim
with respect to the Merger Transaction or the employment and consulting
agreements, and it does not, at this time, seek injunctive relief relative to
the Merger Transaction, although Messrs. Gorn, Gorn and Colvin claim to have
reserved their purported rights to assert such claims and seek such relief at a
later time. The Company believes that it and the Company's officers and
directors have meritorious defenses to the allegations made in the Maryland
complaint and intends to contest the lawsuit vigorously.
Due to the early stage of the above mentioned claims the Company has not
recorded any reserves for potential adverse outcomes.
8. SUBSEQUENT EVENTS
The Company's Certificate of Incorporation, as amended, has required the
Board of Directors to submit a Plan of Liquidation and Dissolution (the "Plan")
to the stockholders prior to the end of 1998, together with the Board's
recommendation whether to adopt or reject the Plan. The Board of Directors
recommended that the shareholders not approve the Plan. On July 21, 1999, at a
Special Meeting of Stockholders, the shareholders voted to reject the Plan.
Subsequent to June 30, 1999, the Company contracted to sell four multifamily
assets, both development projects and one parcel of land. The sales, which have
an aggregate sales price of approximately $70 million, are expected to result in
a gain of approximately $17.3 million.
F-50
<PAGE>
APPENDIX A
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
BERKSHIRE REALTY HOLDINGS, L.P.,
BRI ACQUISITION, LLC
AND
BERKSHIRE REALTY COMPANY, INC.
DATED AS OF APRIL 13, 1999
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C> <C>
ARTICLE 1
THE MERGER............................................................................................... 1
1.1 The Merger...................................................................................... 1
1.2 Closing......................................................................................... 1
1.3 Effective Time.................................................................................. 2
1.4 Effect of Merger on Certificate of Incorporation and By-laws.................................... 2
1.5 Directors and Officers.......................................................................... 3
1.6 Effect on Shares................................................................................ 3
1.7 Merger Consideration............................................................................ 3
1.8 Transactions Relating to Seller Partnership..................................................... 4
1.9 Exchange of Certificates; Pre-Closing Dividends: Fractional Shares.............................. 4
1.10 Dissenting Shares............................................................................... 5
1.11 Alternative Structure of Merger................................................................. 6
1.12 Further Assurances.............................................................................. 6
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SELLER................................................................. 7
2.1 Organization, Standing and Power of Seller...................................................... 7
2.2 Seller Subsidiaries............................................................................. 7
2.3 Capital Structure............................................................................... 8
2.4 Other Interests................................................................................. 9
2.5 Authority; Noncontravention; Consents........................................................... 9
2.6 SEC Documents; Financial Statements; Undisclosed Liabilities.................................... 10
2.7 Absence of Certain Changes or Events............................................................ 11
2.8 Litigation...................................................................................... 12
2.9 Properties...................................................................................... 12
2.10 Environmental Matters........................................................................... 14
2.11 Related Party Transactions...................................................................... 15
2.12 Employee Benefits............................................................................... 15
2.13 Employee Matters................................................................................ 17
2.14 Taxes........................................................................................... 17
2.15 No Payments to Employees, Officers or Directors................................................. 19
2.16 Brokers......................................................................................... 19
2.17 Compliance With Laws............................................................................ 19
2.18 Contracts; Debt Instruments..................................................................... 19
2.19 Opinions of Financial Advisors.................................................................. 21
2.20 State Takeover Statutes......................................................................... 21
2.21 Proxy Statement and Consent Solicitation Statement.............................................. 21
2.22 Investment Company Act of 1940.................................................................. 21
2.23 Definition of Knowledge of Seller............................................................... 21
2.24 Insurance....................................................................................... 21
2.25 Board Recommendation............................................................................ 22
2.26 Representations in Partnership Merger Agreement................................................. 22
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
PAGE
-----
<S> <C> <C>
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF PARENT AND BUYER....................................................... 23
3.1 Organization, Standing and Power of Parent and Buyer............................................ 23
3.2 [Intentionally Omitted]......................................................................... 23
3.3 Ownership of Parent and Buyer................................................................... 23
3.4 Authority; Noncontravention; Consents........................................................... 23
3.5 Litigation...................................................................................... 24
3.6 Undisclosed Liability........................................................................... 24
3.7 Brokers......................................................................................... 25
3.8 Compliance With Laws............................................................................ 25
3.9 Contracts; Debt Instruments..................................................................... 25
3.10 Solvency........................................................................................ 25
3.11 [Intentionally Omitted]......................................................................... 25
3.12 Proxy Statement and Consent Solicitation Statement.............................................. 25
3.13 Investment Company Act of 1940.................................................................. 25
3.14 Parent and Buyer Not Interested Stockholders.................................................... 26
3.15 Definition of Knowledge......................................................................... 26
3.16 [Intentionally Omitted]......................................................................... 26
3.17 Sufficient Funds................................................................................ 26
3.18 Pro Forma Capitalization Table.................................................................. 26
3.19 Representations in Partnership Merger Agreement................................................. 26
ARTICLE 4
COVENANTS................................................................................................ 27
4.1 Acquisition Proposals........................................................................... 27
4.2 Conduct of Seller's Business Pending Merger..................................................... 28
4.3 Conduct of Parent's and Buyer's Business Pending Merger......................................... 30
4.4 Other Actions................................................................................... 31
4.5 Partnership Merger Agreement.................................................................... 31
4.6 Private Placement............................................................................... 31
4.7 Irrevocable Letter of Credit.................................................................... 32
ARTICLE 5
ADDITIONAL COVENANTS..................................................................................... 33
5.1 Preparation of the Proxy Statement; Seller Stockholders Meeting................................. 33
5.2 Access to Information: Confidentiality.......................................................... 34
5.3 Reasonable Best Efforts; Notification........................................................... 34
5.4 Tax Treatment................................................................................... 35
5.5 Public Announcements............................................................................ 35
5.6 Transfer Taxes.................................................................................. 35
5.7 Benefit Plans................................................................................... 35
5.8 Indemnification................................................................................. 36
5.9 Declaration of Dividends and Distributions...................................................... 37
5.10 Resignations.................................................................................... 38
5.11 Outside Property Management Agreements.......................................................... 38
5.12 Stockholder Claims.............................................................................. 38
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
PAGE
-----
<S> <C> <C>
ARTICLE 6
CONDITIONS............................................................................................... 39
6.1 Conditions to Each Party's Obligation to Effect the Merger...................................... 39
6.2 Conditions to Obligations of Parent and Buyer................................................... 39
6.3 Conditions to Obligations of Seller............................................................. 40
ARTICLE 7
TERMINATION, AMENDMENT AND WAIVER........................................................................ 42
7.1 Termination..................................................................................... 42
7.2 Certain Fees and Expenses....................................................................... 43
7.3 Effect of Termination........................................................................... 44
7.4 Amendment....................................................................................... 44
7.5 Extension: Waiver............................................................................... 44
ARTICLE 8
GENERAL PROVISIONS....................................................................................... 45
8.1 Nonsurvival of Representations and Warranties................................................... 45
8.2 Notices......................................................................................... 45
8.3 Interpretation.................................................................................. 46
8.4 Counterparts.................................................................................... 46
8.5 Entire Agreement; No Third-Party Beneficiaries.................................................. 46
8.6 Governing Law................................................................................... 46
8.7 Assignment...................................................................................... 47
8.8 Enforcement..................................................................................... 47
8.9 Severability.................................................................................... 47
</TABLE>
<TABLE>
<S> <C>
EXHIBITS
Exhibit A Financing Commitments
Exhibit B Pro Forma Capitalization Table of Parent and its Subsidiaries
Exhibit C Form of Letter of Credit
Exhibit D Form of Tax Opinions
</TABLE>
iii
<PAGE>
INDEX OF DEFINED TERMS
<TABLE>
<CAPTION>
DEFINED TERM SECTION
- -------------------------------------------------------------------------------------------------- -----------------
<S> <C>
Accrued Dividends................................................................................. 1.7(a)
Acquisition Proposal.............................................................................. 4.1(a)
Additional Filings................................................................................ 5.1(a)
Affiliate......................................................................................... 2.11
Agreement......................................................................................... Preamble
AICPA Statement................................................................................... 5.1(b)
Alternative Merger................................................................................ 1.11
Break-Up Expenses................................................................................. 7.2(a)
Break-Up Fee...................................................................................... 7.2(a)
Buyer............................................................................................. Preamble
Buyer Disclosure Letter........................................................................... Article 3
Buyer Material Adverse Effect..................................................................... 3.1(b)
Buyer Operating Partnership....................................................................... Recital E
Cash Collateral................................................................................... 4.7(a)
Certificates...................................................................................... 1.9(c)
Certificate of Merger............................................................................. 1.3
Change of Control Preference...................................................................... 1.7(a)
Claims............................................................................................ 5.8(b)
Class A Preferred Units........................................................................... 1.8
Class B Units..................................................................................... 1.8
Closing........................................................................................... 1.2(a)
Closing Date...................................................................................... 1.2(a), 1.2(b)
Code.............................................................................................. 2.12(a)
Commitment........................................................................................ 4.2(r)
Common Merger Consideration....................................................................... 1.7(a)
Consent Solicitation Statement.................................................................... 5.1(a)
Controlled Group Member........................................................................... 2.12
Development....................................................................................... 2.9(g)
Development Agreements............................................................................ 4.2(i)
DGCL.............................................................................................. 1.1
DLLCA............................................................................................. 1.1
Dissenting Shares................................................................................. 1.10
Effective Time.................................................................................... 1.2(b), 1.3
Election Notice................................................................................... 1.11
Employee Plan..................................................................................... 2.12
Encumbrances...................................................................................... 2.9(a)
Environmental Law................................................................................. 2.10
Environmental Liabilities and Costs............................................................... 2.10
Equity Commitments................................................................................ 3.17
ERISA............................................................................................. 2.12
Escrow Agent...................................................................................... 4.7(a)
Escrow Agreement.................................................................................. 4.7(a)
Financing Commitment.............................................................................. 3.17
Fee Plan.......................................................................................... 1.7(c)
Flow-Through Entity............................................................................... 2.14(b)
GAAP.............................................................................................. 2.6
Governmental Entity............................................................................... 2.5(b)
</TABLE>
iv
<PAGE>
<TABLE>
<CAPTION>
DEFINED TERM SECTION
- -------------------------------------------------------------------------------------------------- -----------------
<S> <C>
HSR Act........................................................................................... 2.5(b)
Hazardous Materials............................................................................... 2.10(a)
Indebtedness...................................................................................... 2.18(b)
Indemnified Parties............................................................................... 5.8(a)
Indemnifying Parties.............................................................................. 5.8(b)
Injunction........................................................................................ 7.1(d)
Knowledge of Buyer................................................................................ 3.15
Knowledge of Parent............................................................................... 3.15
Knowledge of Seller............................................................................... 2.23
Laws.............................................................................................. 2.5(b)
Lazard............................................................................................ 2.16
Lehman............................................................................................ 2.16
Letter of Credit.................................................................................. 4.7(a)
Liens............................................................................................. 2.2(b)
Liquidation Vote.................................................................................. 4.2
Material Contract................................................................................. 2.18(a)
Merger............................................................................................ Recital A, 1.11
Merger Consideration.............................................................................. 1.7(a)
1940 Act.......................................................................................... 2.22
Option Consideration.............................................................................. 1.7(b)
Ordinary Course Liabilities....................................................................... 4.2(q)
Outside Property Management Agreements............................................................ 2.18(e)
Parent............................................................................................ Preamble
Parent Material Adverse Effect.................................................................... 3.1(a)
Parent's Closing Notice........................................................................... 1.2(d)
Partial Period.................................................................................... 5.9
Partial Period Dividend........................................................................... 5.9
Partnership Merger................................................................................ 1.8
Partnership Merger Agreement...................................................................... Recital E
Paying Agent...................................................................................... 1.9(a)
Pension Plan...................................................................................... 2.12
Person............................................................................................ 2.2(a)
Preferred Merger Consideration.................................................................... 1.7(a)
Property Restrictions............................................................................. 2.9(a)
Proxy Statement................................................................................... 5.1(a)
Prudential........................................................................................ 2.16
REIT.............................................................................................. 2.14(b)
SEC............................................................................................... 2.5(b)
Securities Act.................................................................................... 2.6
Seller............................................................................................ Preamble
Seller Common Shares.............................................................................. 2.3(a)
Seller Contribution Agreements.................................................................... 2.18(a)
Seller Disclosure Letter.......................................................................... Article 2
Seller Financial Statement Date................................................................... 2.7
Seller General Partner............................................................................ 2.25
Seller Material Adverse Change.................................................................... 2.7
Seller Material Adverse Effect.................................................................... 2.1
Seller OP Units................................................................................... 1.8
Seller Options.................................................................................... 2.3(b)
Seller Partner Approval........................................................................... 2.5(a)
</TABLE>
v
<PAGE>
<TABLE>
<CAPTION>
DEFINED TERM SECTION
- -------------------------------------------------------------------------------------------------- -----------------
<S> <C>
Seller Partnership................................................................................ Recital E
Seller Partnership Agreement...................................................................... 2.3(e)
Seller Permits.................................................................................... 2.17
Seller Plan....................................................................................... 2.3(a)
Seller Preferred Shares........................................................................... 2.3(a)
Seller Properties................................................................................. 2.9(a), 2.10
Seller SEC Documents.............................................................................. 2.6
Seller Shareholder Approval....................................................................... 2.5(a)
Seller Shareholders Meeting....................................................................... 5.1(c)
Seller Subsidiaries............................................................................... 2.2(a)
Seller Unit Holder................................................................................ 1.8
Seller's Closing Notice........................................................................... 1.2(c)
Seller's Environmental Reports.................................................................... 2.10
Share Unit Account................................................................................ 1.7(c)
Share Units....................................................................................... 1.7(c)
Subsidiary........................................................................................ 2.2(a)
Superior Acquisition Proposal..................................................................... 4.1(d)
Surviving Company................................................................................. 1.1, 1.11
Surviving Operating Partnership................................................................... Recital E
Takeover Statute.................................................................................. 2.20
Tax(es)........................................................................................... 2.14(a)
Tax Authority..................................................................................... 2.14(a)
Tax Return(s)..................................................................................... 2.14(a)
Tax Protection Agreements......................................................................... 2.18(i)
Third Party Provisions............................................................................ 8.5
Transactions...................................................................................... 2.25
Transfer Taxes.................................................................................... 5.6
Welfare Plan...................................................................................... 2.12
</TABLE>
vi
<PAGE>
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") dated as of April 13,
1999, is by and among Berkshire Realty Holdings, L.P., a Delaware limited
partnership ("Parent"), BRI Acquisition, LLC, a Delaware limited liability
company and subsidiary of Parent ("Buyer"), and Berkshire Realty Company, Inc.,
a Delaware corporation ("Seller").
RECITALS:
A. The sole member of Buyer and the Board of Directors of Seller deem it
advisable and in the best interests of their respective members and
stockholders, subject to the conditions and other provisions contained herein,
that Buyer shall merge with and into Seller (the "Merger").
B. Seller has received fairness opinions relating to the transactions
contemplated hereby as more fully described herein.
C. Buyer and Seller desire to make certain representations, warranties and
agreements in connection with the transactions contemplated hereby.
D. Contemporaneously with the execution of this Agreement, BRI Acquisition
Sub, LP, a Delaware limited partnership ("Buyer Operating Partnership"), and BRI
OP Limited Partnership, a Delaware limited partnership (the "Seller
Partnership"), and Parent will enter into a Merger Agreement (the "Partnership
Merger Agreement") pursuant to which, immediately prior to the Merger, Buyer
Operating Partnership will be merged with and into Seller Partnership with
Seller Partnership as the surviving entity ("Surviving Operating Partnership").
E. Immediately following the Merger, Parent may liquidate Seller and, as a
result of such liquidation, Parent would acquire all of the assets, and assume
all of the liabilities, of Seller.
NOW, THEREFORE, in consideration of the premises and the representations,
warranties, covenants and agreements contained herein, the parties hereto hereby
agree as follows:
ARTICLE 1
THE MERGER
1.1 The Merger. Upon the terms and subject to the terms and conditions of
this Agreement (including, without limitation, Section 1.11), and in accordance
with Section 264 of the Delaware General Corporation Law ("DGCL") and Section
18-209 of the Delaware Limited Liability Company Act ("DLLCA"), Buyer shall be
merged with and into Seller, with Seller as the surviving entity (the entity
surviving the Merger, the "Surviving Company").
1.2 Closing.
(a) Subject to Section 1.2(b), Seller's compliance with Section 1.2(c) and
the satisfaction (or waiver by the parties entitled to the benefit thereof) of
the conditions set forth in Article 6, the closing of the Merger (the "Closing")
will take place at 10:00 a.m., local time in Boston, Massachusetts on the date
(the "Satisfaction Date") which is the first business day to occur on or after
the day which is the later of (i) the 10th calendar day following satisfaction
(or waiver by the parties entitled to the benefit thereof) of the conditions set
forth in Article 6 (other than Sections 6.2(d), 6.2(g), 6.2(i), 6.3(d) and
6.3(g)) and (ii) October 15, 1999, at the offices of Hale and Dorr LLP, 60 State
Street, Boston, Massachusetts 02109, unless another date or place is agreed to
in writing by the parties. The date on which the Closing occurs shall be
referred to herein as the "Closing Date."
(b) Notwithstanding the provisions of Section 1.2(a) and subject to Parent's
compliance with Section 4.7(b) hereof, Parent may elect to extend the Closing
Date to any business day on or prior to December 29, 1999 by delivering written
notice of such election to Seller as contemplated under Section 1.2(d).
<PAGE>
(c) On the first business day after the satisfaction (or waiver by Parent
and Buyer) of the conditions set forth in Sections 6.1 and 6.2 (other than
Sections 6.2(d), 6.2(g) and 6.2(i)), Seller shall deliver a written notice
("Seller's Closing Notice") to Parent and Buyer which (i) sets forth the date
that is the Satisfaction Date and (ii) certifies, as of the date of such notice,
the satisfaction (or waiver by Parent and Buyer) of the conditions set forth in
Sections 6.1 and 6.2 (other than Sections 6.2(d), 6.2(g) and 6.2(i)).
(d) At least three business days prior to the Satisfaction Date (as
indicated in Seller's Closing Notice), Parent shall deliver a written notice to
Seller ("Parent's Closing Notice") indicating one of the following: (i) Parent's
determination to exercise the election contemplated by Section 1.2(b) and to
extend the Closing Date to such business day on or prior to December 29, 1999 as
is set forth in such notice, or (ii) Parent's determination not to exercise the
election contemplated by Section 1.2(b), in which case the Closing Date shall be
the Satisfaction Date.
(e) If the Closing Date is extended as contemplated by Section 1.2(b), then
for purposes of the conditions set forth in Section 6.2 (other than Sections
6.2(g) and 6.2(i)), all references in the lettered subsections thereof to the
terms "Closing Date" and "Effective Time" shall be deemed to mean the
Satisfaction Date, and the certificates and other documents to be delivered by
the parties pursuant to such Sections shall be delivered on and as of the
Satisfaction Date. The parties hereto agree that other than with respect to the
conditions set forth in Section 6.2(g) and 6.2(i) (which conditions shall be
satisfied or waived by the parties entitled to the benefit thereof as of the
Closing Date), none of the conditions set forth in Section 6.2 shall be required
to be satisfied at any time after the Satisfaction Date. Notwithstanding the
foregoing, for purposes of determining whether Parent or Buyer has the right to
terminate this Agreement pursuant to Section 7.1(b), the conditions set forth in
Section 6.2(b) shall, in all circumstances, be evaluated as of the Closing Date.
(f) If the conditions set forth in Sections 6.1 and 6.2 are not satisfied
(or waived by Parent and Buyer), or if the certificates and other documents
required to be delivered pursuant to Section 6.2 are not delivered, in each case
on and as of the Satisfaction Date (as indicated in Seller's Closing Notice),
then (i) the Satisfaction Date shall be deemed not to have occurred, (ii)
Seller's Closing Notice and Parent's Closing Notice shall be void and of no
further effect, (iii) the Closing shall remain subject to Seller's further
compliance with Section 1.2(c) hereof and the Closing shall occur as provided in
Section 1.2(a) and (iv) Parent shall have retained its right, subject to its
compliance with Section 1.2(b), to extend the Closing Date as contemplated
thereunder.
(g) If the Satisfaction Date occurs on or before October 29, 1999 and the
Closing Date is extended as contemplated by Section 1.2(b) to a date that is
after October 29, 1999, then notwithstanding anything to the contrary contained
in the first paragraph of Section 5.9, Seller may declare a dividend not to
exceed $.25 per Seller Common Share for the dividend for the fourth quarter of
1999 (i.e., with a record date of November 1, 1999).
1.3 Effective Time. On the Closing Date, the Surviving Company shall
execute and file a certificate of merger (the "Certificate of Merger"), executed
in accordance with Delaware law, and shall make all other filings and recordings
required under Delaware law. The Merger shall become effective at the time
("Effective Time") the Certificate of Merger is filed with the Secretary of
State of the State of Delaware, or at such time as Buyer and Seller shall agree
should be specified in the Certificate of Merger (not to exceed thirty (30) days
after the Certificate of Merger is filed with the Secretary of State of the
State of Delaware). Unless otherwise agreed, the parties shall cause the
Effective Time to occur on the Closing Date.
1.4 Effect of Merger on Certificate of Incorporation and By-laws. Subject
to Section 1.11, the Restated Certificate of Incorporation, as amended, of
Seller and the By-laws of Seller, as in effect immediately prior to the
Effective Time, shall constitute the Restated Certificate of Incorporation and
2
<PAGE>
By-laws, respectively, of the Surviving Company, from and after the Effective
Time, until further amended in accordance with applicable Delaware law.
1.5 Directors and Officers. Subject to Section 1.11, the directors and
officers of the Surviving Company shall be the Persons who were the directors
and officers, respectively, of Seller immediately prior to the Effective Time.
Such directors and officers shall continue to serve for the balance of their
unexpired terms or their earlier death, resignation or removal.
1.6 Effect on Shares. The effect of the Merger on the shares of Seller
shall be as provided in this Article 1. Each membership interest of Buyer
outstanding immediately prior to the Merger shall be converted, without any
action on the part of the holder thereof, into one share of the common stock of
the Surviving Company.
1.7 Merger Consideration.
(a) Subject to Section 1.10 and Section 5.9 below, at the Effective Time, by
virtue of the Merger and without any action on the part of Parent, Buyer, Seller
or the holders of the following securities, each Seller Common Share (as defined
in Section 2.3(a)) issued and outstanding immediately prior to the Effective
Time (other than Seller Common Shares held by Parent, Buyer, any wholly-owned
subsidiary of Parent or Buyer, or in the treasury of Seller, which shares, by
virtue of the Merger and without any action on the part of the holder thereof,
shall be canceled and shall cease to exist with no payment being made with
respect thereto, and other than Dissenting Shares (as defined in Section 1.10))
shall be converted into the right to receive $12.25 in cash (the "Common Merger
Consideration"), without interest thereon, upon surrender of the certificate
formerly representing such share. In addition, at the Effective Time, by virtue
of the Merger and without any action on the part of Parent, Buyer, Seller or the
holders of the following securities, each Seller Preferred Share (as defined in
Section 2.3(a)) issued and outstanding immediately prior to the Effective Time
(other than Dissenting Shares) shall be converted into the right to receive the
"Change of Control Preference" in the amount of $28.75 per Seller Preferred
Share together with 115% of any Accrued Dividends per Seller Preferred Share
("Change of Control Preference" and "Accrued Dividends" each being defined in
the Certificate of Designation of the Seller Preferred Shares) (the "Preferred
Merger Consideration"), without interest thereon, upon surrender of the
certificate formerly representing such share. The Surviving Company shall have
the right to, and shall, take all steps necessary to ensure compliance, and
shall comply, with all withholding obligations with respect to any foreign
stockholders of Seller in connection with the payment of the Merger
Consideration. The Preferred Merger Consideration, together with the Common
Merger Consideration, is hereinafter referred to as the "Merger Consideration".
(b) Each outstanding Seller Option (as defined in Section 2.3(b)) shall be
subject to the terms of this Agreement. As of the Effective Time, each
outstanding Seller Option, whether or not then vested or exercisable, shall have
the expiration date thereof accelerated to the Closing Date and shall be
converted into the right to receive from the Surviving Company an amount of cash
equal to the product of (i) the number of Seller Common Shares subject to the
Seller Option and (ii) the excess, if any, of the Common Merger Consideration
over the exercise price per Seller Common Share of such option (the "Option
Consideration"). Prior to the Effective Time, Seller shall take all steps
necessary to give written notice to each holder of a Seller Option that all
Seller Options shall expire effective as of the Effective Time and be converted
into the right to receive the Option Consideration. The Surviving Company shall
cause the Paying Agent (as defined in Section 1.9(a)) to pay each holder of
Seller Options, promptly following the Effective Time, the Option Consideration
for all Seller Options held by such holder. The Board of Directors of Seller or
any committee thereof responsible for the administration of Seller's stock
option plans shall take any and all action necessary to effectuate the matters
described in this Section 1.7(b) on or before the Effective Time. Any amounts
payable pursuant to this Section 1.7(b) shall be subject to any required
withholding of taxes and shall be paid without
3
<PAGE>
interest. Parent agrees to provide the Surviving Company with sufficient funds
to permit the Surviving Company to satisfy its obligations under this Section
1.7(b).
(c) The Seller has adopted a Directors Retainer Fee Plan (the "Fee Plan")
pursuant to which eligible directors may elect to receive certain fees in cash
or in Seller Common Shares or to defer payment of such fees and credit such fees
to an account (the "Share Unit Account") consisting of units that are equivalent
in value to Seller Common Shares ("Share Units"). The Seller shall take all
actions necessary so that all Share Units outstanding immediately prior to the
Effective Time shall be canceled immediately prior to the Effective Time in
exchange for the right of each holder of Share Units to receive an amount in
cash equal to the product of (A) the number of Share Units in such holder's
Share Unit Account outstanding immediately prior to the Effective Time and (B)
the Common Merger Consideration to be delivered by the Surviving Company
immediately following the Effective Time. All applicable withholding taxes
attributable to the payments contemplated by this Section 1.7(c) shall be
deducted from the amounts payable under this Section 1.7(c) and any amounts
payable under this Section 1.7(c) shall be payable without interest. Except as
provided in this Section 1.7(c), the Fee Plan shall terminate at the Effective
Time.
1.8 Transactions Relating to Seller Partnership. Contemporaneously with
the execution of this Agreement, Parent and Buyer shall cause Buyer Operating
Partnership to enter into the Partnership Merger Agreement with Seller
Partnership pursuant to which, among other things, (i) Buyer Operating
Partnership will be merged with and into Seller Partnership (the "Partnership
Merger") with Seller Partnership surviving as the Surviving Operating
Partnership and (ii) each holder ("Seller Unit Holder") of units in the Seller
Partnership ("Seller OP Units") will be offered the option of receiving either
(A) an amount per Seller OP Unit equal to the Common Merger Consideration or (B)
one Class A Preferred Unit (as defined in the Partnership Merger Agreement) for
each Seller OP Unit held by such holder or (C) one Class B Unit (as defined in
the Partnership Merger Agreement) for each Seller OP Unit held by such holder.
Seller hereby consents to the cancellation of the Seller OP Units it owns
immediately prior to the effective time of the Partnership Merger in accordance
with the provisions of the Partnership Merger Agreement. Buyer hereby consents
to the cancellation of its general partnership interest in Buyer Operating
Partnership owned immediately prior to the effective time of the Partnership
Merger in accordance with the provisions of the Partnership Merger Agreement.
1.9 Exchange of Certificates; Pre-Closing Dividends: Fractional Shares.
(a) Prior to the Effective Time, Buyer shall appoint a paying agent
reasonably acceptable to Seller to act as agent (the "Paying Agent") for the
payment of the Merger Consideration upon surrender of certificates formerly
representing issued and outstanding Seller Common Shares or Seller Preferred
Shares, as applicable, and payment in respect of Seller Options and amounts
owing under the Fee Plan.
(b) Parent and Buyer shall provide to the Paying Agent on or before the
Effective Time, for the benefit of the holders of Seller Common Shares, Seller
Preferred Shares, Seller Options and Share Units, cash payable in exchange for
the issued and outstanding Seller Common Shares, cash payable in exchange for
the issued and outstanding Seller Preferred Shares, cash payable in respect of
Seller Options and cash payable in respect of Share Units.
(c) Promptly after the Effective Time, the Surviving Company shall cause the
Paying Agent to mail to each holder of record of a certificate or certificates
which immediately prior to the Effective Time represented outstanding Seller
Common Shares or Seller Preferred Shares (the "Certificates") (i) a letter of
transmittal (which shall specify that delivery shall be effected, and risk of
loss and title to the Certificates shall pass, only upon delivery of the
Certificates to the Paying Agent and shall be in such form and have such other
provisions as Buyer may reasonably specify) and (ii) instructions for use in
effecting the surrender of the Certificates in exchange for the Merger
Consideration. Upon surrender of a Certificate for cancellation to the Paying
Agent, together with such letter of transmittal, duly
4
<PAGE>
executed and completed in accordance with the instructions thereto, the holder
of such Certificate shall be entitled to receive in exchange therefor the
applicable Merger Consideration, and the Certificate so surrendered shall
forthwith be canceled. In the event of a transfer of ownership of Seller Common
Shares or Seller Preferred Shares which is not registered in the transfer
records of Seller, payment may be made to a Person (as defined in Section
2.2(a)) other than the Person in whose name the Certificate so surrendered is
registered if such Certificate shall be properly endorsed or otherwise be in
proper form for transfer and the Person requesting such payment either shall pay
any transfer or other Taxes (as defined in Section 2.14(a)) required by reason
of such payment being made to a Person other than the registered holder of such
Certificate or establish to the satisfaction of the Surviving Company that such
Tax or Taxes have been paid or are not applicable. Until surrendered as
contemplated by this Section 1.9, each Certificate (other than Certificates
representing Dissenting Shares) shall be deemed at any time after the Effective
Time to represent only the right to receive upon such surrender the Merger
Consideration, without interest. No interest will be paid or will accrue on the
Merger Consideration upon the surrender of any Certificate.
(d) All Merger Consideration paid upon the surrender of Certificates in
accordance with the terms of this Section 1.9 shall be deemed to have been paid
in full satisfaction of all rights pertaining to the Seller Common Shares or
Seller Preferred Shares, as applicable, formerly represented by such
Certificates; provided, however, that Seller shall transfer to the Paying Agent
cash sufficient to pay any dividends or make any other distributions with a
record date on or prior to the Effective Time which may have been declared or
made by Seller on such Seller Common Shares, including without limitation any
dividends permitted by the second paragraph of Section 5.9 hereof, or Seller
Preferred Shares, as applicable, in accordance with the terms of this Agreement
or prior to the date of this Agreement and which remain unpaid at the Effective
Time and have not been paid prior to such surrender, and there shall be no
further registration of transfers on the stock transfer books of Seller of the
Seller Common Shares and Seller Preferred Shares which were outstanding
immediately prior to the Effective Time. If, after the Effective Time,
Certificates are presented to the Surviving Company for any reason, they shall
be canceled and exchanged as provided in this Section 1.9.
(e) None of Parent, Seller, Buyer, the Surviving Company or the Paying Agent
shall be liable to any Person in respect of any Merger Consideration delivered
to a public official pursuant to any applicable abandoned property, escheat or
similar law. Any portion of the Merger Consideration delivered to the Paying
Agent pursuant to this Agreement that remains unclaimed for 12 months after the
Effective Time shall be redelivered by the Paying Agent to the Surviving
Company, upon demand, and any holders of Certificates who have not theretofore
complied with Section 1.9(c) shall thereafter look only to the Surviving Company
for delivery of the Merger Consideration and any unpaid dividends, subject to
applicable escheat and other similar Laws (as defined in Section 2.5(b)).
1.10 Dissenting Shares. Notwithstanding anything in this Agreement to the
contrary, Seller Common Shares and Seller Preferred Shares outstanding
immediately prior to the Effective Time and held by a holder who has not voted
in favor of the Merger or consented thereto in writing and who has demanded
appraisal for such shares in accordance with Section 262 of the DGCL
("Dissenting Shares") shall not be converted into the right to receive the
Merger Consideration as provided in Section 1.7, unless and until such holder
fails to perfect or withdraws or otherwise loses his right to appraisal and
payment under the DGCL. If, after the Effective Time, any such holder fails to
perfect or withdraws or loses his right to appraisal, such Dissenting Shares
shall thereupon be treated as if they had been converted as of the Effective
Time into the right to receive the Merger Consideration, if any, to which such
holder is entitled, without interest thereon. Seller shall give Buyer prompt
notice of any demands received by Seller for appraisal of shares and, prior to
the Effective Time, Buyer shall have the right to participate in all
negotiations and proceedings with respect to such demands. Prior to the
Effective Time, Seller shall not, except with the prior written consent of
Buyer, make any payment with respect to, or settle or offer to settle, any such
demands.
5
<PAGE>
1.11 Alternative Structure of Merger. While it is currently contemplated
that the Merger shall be effected through the merger of Buyer with and into
Seller, Parent shall have the option, in its sole discretion and without
requiring the further consent of Seller or Seller's Board of Directors or
stockholders, to cause the Merger to be effected through an alternative
transaction structure of Seller merging into Parent, with Parent being the
Surviving Company (the "Alternative Merger"), in which case (i) each general
partnership interest and limited partnership interest of Parent issued and
outstanding immediately prior to the Effective Time shall be converted in the
Merger into a corresponding general partnership interest or limited partnership
interest, as the case may be, of the Surviving Company, (ii) the limited
partnership agreement of Parent shall be the limited partnership agreement of
the Surviving Company and (iii) the general partners and officers of Parent
shall be the general partners and officers of the Surviving Company. Parent
shall make such election by delivering to Seller a notice (the "Election
Notice") electing to effect the Alternative Merger. The Election Notice shall be
available for the inspection of any stockholder of Seller upon request during
normal business hours. Any such election may be made only after the respective
approvals of the Merger and the Partnership Merger by the stockholders of Seller
and Seller Unit Holders and after satisfaction (or waiver by the parties
entitled to the benefits thereof) of all other conditions to the consummation of
the Merger set forth in Article 6. For purposes of this Agreement, (i) all
references to the term "Merger" shall be deemed to include the Alternative
Merger, except for such references contained in the second sentence of Section
1.6 and in this Section 1.11, and (ii) all references to the term "Surviving
Company" shall be deemed to include Parent in its capacity as the surviving
entity in the Alternative Merger. As part of the Proxy Statement and the Consent
Solicitation Statement and in the manner required by applicable law, Seller
shall describe the provisions of this Section 1.11. In the event the Alternative
Merger is effectuated, the parties agree that for Federal income tax purposes,
the Merger shall be treated as an asset acquisition by Parent, followed by a
liquidation of Seller.
1.12 Further Assurances. If, at any time after the Effective Time, the
Surviving Company shall determine or be advised that any deeds, bills of sale,
assignments, assurances or any other actions or things are necessary or
desirable to vest, perfect or confirm of record or otherwise in the Surviving
Company the right, title or interest in, to or under any of the rights,
properties or assets of Seller acquired or to be acquired by the Surviving
Company as a result of, or in connection with, the Merger or otherwise to carry
out this Agreement, the Surviving Company shall be authorized to execute and
deliver, in the name and on behalf of each of Parent, Buyer and Seller or
otherwise, all such deeds, bills of sale, assignments and assurances and to take
and do, in the name and on behalf of each of Parent, Buyer and Seller or
otherwise, all such other actions and things as may be necessary or desirable to
vest, perfect or confirm any and all right, title and interest in, to and under
such rights, properties or assets in the Surviving Company or otherwise to carry
out this Agreement.
6
<PAGE>
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Parent and Buyer, except as set forth in
the letter of even date herewith signed by the President of Seller and delivered
to Buyer prior to the execution hereof (the "Seller Disclosure Letter") (it
being understood that the Seller Disclosure Letter shall be arranged in sections
corresponding to the sections contained in this Article 2, and the disclosures
in any section of the Seller Disclosure Letter shall qualify all of the
representations in the corresponding section of this Article 2 and, in addition,
other sections in this Article 2 to the extent it is clear from a reading of the
disclosure that such disclosure is applicable to such other sections) as
follows:
2.1 Organization, Standing and Power of Seller. Seller is a corporation
duly organized and validly existing under the Laws of Delaware. Seller has the
requisite corporate power and authority to carry on its business as now being
conducted. Seller is duly qualified or licensed to do business as a foreign
corporation and is in good standing in each jurisdiction in which the nature of
its business or the ownership or leasing of its properties makes such
qualification or licensing necessary, other than in such jurisdictions where the
failure to be so qualified or licensed, individually or in the aggregate, would
not have a Seller Material Adverse Effect. Seller has delivered to Buyer
complete and correct copies of Seller's Certificate of Incorporation and
By-laws, in each case, as amended to the date of this Agreement. As used in this
Agreement, "Seller Material Adverse Effect" shall mean a material adverse effect
on the business, properties, assets, financial condition, or results of
operations of Seller and its Subsidiaries, taken as a whole, including the
prevention of the ability of Seller, the Seller General Partner (as defined
below) or the Seller Partnership to consummate any of the Transactions (as
defined below).
2.2 Seller Subsidiaries.
(a) Section 2.2 of the Seller Disclosure Letter sets forth (i) each
Subsidiary (as defined below) of Seller (the "Seller Subsidiaries"), (ii) the
ownership interest therein of Seller, (iii) if not wholly owned by Seller, the
identity and ownership interest of each of the other owners of such Seller
Subsidiary and (iv) each apartment community owned by such Subsidiary. As used
in this Agreement, "Subsidiary" of any Person (as defined below) means any
corporation, partnership, limited liability company, joint venture, trust or
other legal entity of which such Person (either directly or through or together
with another Subsidiary of such Person) owns 50% or more of the capital stock or
other equity interests of such corporation, partnership, limited liability
company, joint venture or other legal entity, including, without limitation, the
Seller Partnership, but does not include short-term money market investments and
other participation interests in short-term investments. As used herein,
"Person" means an individual, corporation, partnership, limited liability
company, joint venture, association, trust, unincorporated organization or other
entity.
(b) (i) All the outstanding shares of capital stock owned by Seller of each
Seller Subsidiary that is a corporation have been validly issued and are (A)
fully paid, nonassessable and free of any preemptive rights, (B) owned by Seller
or by another Seller Subsidiary and (C) owned free and clear of all pledges,
claims, liens, charges, encumbrances and security interests of any kind or
nature whatsoever (collectively, "Liens") or any other limitation or restriction
(including any contractual restriction on the right to vote or sell the same)
other than restrictions under applicable securities laws; and (ii) all equity
interests in each Seller Subsidiary that is a partnership, joint venture,
limited liability company or trust which are owned by Seller, by another Seller
Subsidiary or by Seller and another Seller Subsidiary are owned free and clear
of all Liens or any other limitation or restriction (including any contractual
restriction on the right to vote or sell the same) other than restrictions under
applicable securities laws. Each Seller Subsidiary that is a corporation is duly
incorporated and validly existing under the Laws of its jurisdiction of
incorporation and has the requisite corporate power and authority to carry on
its business as now being conducted, and each Seller Subsidiary that is a
partnership, limited liability
7
<PAGE>
company or trust is duly organized and validly existing under the Laws of its
jurisdiction of organization and has the requisite power and authority to carry
on its business as now being conducted. Each Seller Subsidiary is duly qualified
or licensed to do business and is in good standing in each jurisdiction in which
the nature of its business or the ownership or leasing of its properties makes
such qualification or licensing necessary, other than in such jurisdictions
where the failure to be so qualified or licensed, individually or in the
aggregate, would not have a Seller Material Adverse Effect. True and correct
copies of the certificate of incorporation, By-laws, organization documents and
partnership, joint venture and operating agreements of each Seller Subsidiary,
and all amendments to the date of this Agreement, have been made available or
previously delivered to Buyer.
2.3 Capital Structure.
(a) The authorized shares of capital stock of Seller consist of 60,000,000
shares of preferred stock, $0.01 par value per share, of which 2,737,000 shares
are issued and outstanding as of the date hereof and are designated as Series
1997-A Convertible Preferred Shares (the "Seller Preferred Shares"), and
140,000,000 shares of Common Stock, $0.01 par value per share (the "Seller
Common Shares"), of which 36,727,591 are issued and outstanding as of the date
hereof. As of the date hereof, (i) 3,300,000 Seller Common Shares have been
reserved for issuance under the Amended and Restated Stock Option Plan of Seller
(the "Seller Plan"), under which options in respect of 1,534,300 Seller Common
Shares have been granted and are outstanding as of the date hereof, (ii)
9,982,255 Seller Common Shares are reserved for issuance upon conversion of
Seller OP Units, (iii) 5,680,917 Seller Common Shares are reserved for issuance
upon conversion of the Seller Preferred Shares and (iv) no Seller Preferred
Shares or Seller Common Shares are held in the Seller's treasury.
(b) Set forth in Section 2.3 of the Seller Disclosure Letter is a true and
complete list of the following: (i) each qualified or nonqualified option to
purchase Seller Common Shares granted under the Seller Plan or any other formal
or informal arrangement ("Seller Options"); (ii) each grant of Seller Common
Shares to employees which are subject to any risk of forfeiture; and (iii) all
other warrants or other rights to acquire stock, all limited stock appreciation
rights, phantom stock, dividend equivalents, performance units and performance
shares granted under the Seller Plan which are outstanding as of the date
hereof. On the date of this Agreement, except as set forth in this Section 2.3
or Section 2.3 of the Seller Disclosure Letter, no shares of capital stock of
Seller were outstanding or reserved for issuance.
(c) All outstanding shares of capital stock of Seller are duly authorized,
validly issued, fully paid and nonassessable and not subject to preemptive
rights. There are no bonds, debentures, notes or other indebtedness of Seller
having the right under applicable law or Seller's Certificate of Incorporation
or By-laws to vote (or convertible into, or exchangeable for, securities having
the right to vote) on any matters on which shareholders of Seller may vote.
(d) There are no outstanding securities, options, warrants, calls, rights,
commitments, agreements, arrangements or undertakings of any kind to which
Seller or any Seller Subsidiary is a party or by which any such entity is bound,
obligating Seller or any Seller Subsidiary to issue, deliver or sell, or cause
to be issued, delivered or sold, additional shares of capital stock, voting
securities or other ownership interests of Seller or any Seller Subsidiary or
obligating Seller or any Seller Subsidiary to issue, grant, extend or enter into
any such security, option, warrant, call, right, commitment, agreement,
arrangement or undertaking (other than to Seller or a Seller Subsidiary). There
are no outstanding obligations of Seller or any Seller Subsidiary to repurchase,
redeem or otherwise acquire any shares of stock of Seller or shares of stock or
other ownership interests of any Seller Subsidiary.
(e) As of the date hereof, 46,376,824 Seller OP Units are validly issued and
outstanding, fully paid and nonassessable except to the extent provided by
applicable law, of which 36,414,986 are owned by Seller and 312,605 are owned by
Berkshire Apartments, Inc. Section 2.3 of the Seller Disclosure Letter sets
forth the name of each Seller Unit Holder and the number of Seller OP Units
owned by each such
8
<PAGE>
Seller Unit Holder as of the date of this Agreement. The Seller OP Units are
subject to no restriction established by Seller or under applicable law (other
than restrictions on sale imposed by applicable securities laws) except as set
forth in the Amended and Restated Limited Partnership Agreement of the Seller
Partnership (the "Seller Partnership Agreement") and Seller Contribution
Agreements. Seller Partnership has not issued or granted and is not a party to
any outstanding commitments of any kind relating to, or any presently effective
agreements or understandings with respect to, issuing interests in Seller
Partnership or securities convertible into interests in Seller Partnership.
(f) All dividends on Seller Common Shares and distributions on Seller OP
Units which have been declared prior to the date of this Agreement have been
paid in full (except for the dividend on Seller Common Shares and distributions
on Seller OP Units payable on May 15, 1999).
2.4 Other Interests. Neither Seller nor any of its Subsidiaries owns
directly or indirectly any interest or investment (whether equity or debt) in
any corporation, partnership, joint venture, business, trust or entity (other
than investments in the Seller Subsidiaries and short-term investment
securities). Neither Seller nor any of the Seller Subsidiaries is in material
breach of any provision of any agreement, document or contract governing its
rights in or to any such interests owned or held by it. To the Knowledge of
Seller (as defined in Section 2.23), no other party to any such agreement,
document or contract is in material breach of any of its obligations under any
such agreement, document or contract, nor has Seller or any of Seller's
Subsidiaries received any notice of any such material breach.
2.5 Authority; Noncontravention; Consents.
(a) Seller has the requisite corporate power and authority to enter into
this Agreement and, subject to the adoption of this Agreement by holders of (i)
a majority of the outstanding Seller Preferred Shares and (ii) a majority of the
Seller Common Shares and Seller Preferred Shares (voting on an as-converted
basis), voting as a single class, representing a majority of the issued and
outstanding Seller Common Shares (after giving effect to a deemed conversion of
the Seller Preferred Shares) of the Seller (collectively, the "Seller
Shareholder Approval"), to consummate the transactions contemplated by this
Agreement to which Seller is a party. The execution and delivery of this
Agreement by Seller and the consummation by Seller of the transactions
contemplated by this Agreement to which Seller is a party have been duly
authorized by all necessary corporate action on the part of Seller, except for
and subject to the Seller Shareholder Approval and approval by the holders of a
majority of the limited partnership interest in the Seller Partnership (the
"Seller Partner Approval"). This Agreement has been duly executed and delivered
by Seller and constitutes a valid and binding obligation of Seller, enforceable
against Seller in accordance with and subject to its terms, subject to
applicable bankruptcy, insolvency, moratorium or other similar Laws relating to
creditors' rights and general principles of equity. The respective Boards of
Directors of Seller and the Seller General Partner have duly and validly
approved, and taken all corporate or partnership action required to be taken by
them for the consummation of the Transactions, including but not limited to all
actions required to render inapplicable to the Merger and this Agreement (and
the transactions provided for herein) the restrictions on "business
combinations" (as defined in Section 203(a)(1) of the DGCL) set forth in Section
203 of the DGCL.
(b) The execution and delivery of this Agreement by Seller do not, and the
consummation of the transactions contemplated by this Agreement to which Seller
is a party and compliance by Seller with the provisions of this Agreement will
not, require any consent, approval or notice under, or conflict with, or result
in any violation of, or default (with or without notice or lapse of time, or
both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to loss of a benefit under, or result in the
creation of any Lien upon any of the properties or assets of Seller or any
Seller Subsidiary under, (i) the Certificate of Incorporation or the Amended and
Restated By-laws of Seller or the comparable certificate of incorporation or
organizational documents or partnership or similar agreement (as the case may
be) of any Seller Subsidiary, each as amended or supplemented to
9
<PAGE>
the date hereof, (ii) any loan or credit agreement, note, bond, mortgage,
indenture, reciprocal easement agreement, lease, joint venture agreement,
development agreement, benefit plan or other agreement, instrument, permit,
concession, franchise or license applicable to Seller or any Seller Subsidiary
or their respective properties or assets or (iii) subject to the governmental
filings and other matters referred to in the following sentence, any judgment,
order, decree, statute, law, ordinance, rule or regulation (collectively,
"Laws") applicable to Seller or any Seller Subsidiary, or their respective
properties or assets, other than, in the case of clause (ii) (other than such
items relating to the incurrence of indebtedness) or (iii), any such conflicts,
violations, defaults, rights, loss or Liens that individually or in the
aggregate would not reasonably be expected to (x) have a Seller Material Adverse
Effect or (y) prevent or delay beyond December 31, 1999 the consummation of the
transactions contemplated by this Agreement. No consent, approval, order or
authorization of, or registration, declaration or filing with, any federal,
state or local government or any court, administrative or regulatory agency or
commission or other governmental authority or agency, domestic or foreign (a
"Governmental Entity"), is required by or with respect to Seller or any Seller
Subsidiary in connection with the execution and delivery of this Agreement by
Seller or the consummation by Seller of the transactions contemplated by this
Agreement, except for (i) the filing with the Securities and Exchange Commission
(the "SEC") and the New York Stock Exchange of the Proxy Statement (as defined
in Section 5.1(a)) and any filings required by the Exchange Act (including
Schedule 13E-3), (ii) the filing of the Certificate of Merger with the Secretary
of State of the State of Delaware, (iii) the filing of a certificate of merger
with the Secretary of State of the State of Delaware with respect to the
Partnership Merger, (iv) any filings required under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), (v) the filing
of a Form D with the SEC with respect to the transaction contemplated by the
Partnership Merger Agreement and (vi) such other consents, approvals, orders,
authorizations, registrations, declarations and filings (A) as are set forth in
Section 2.5 of the Seller Disclosure Letter, (B) as may be required under (y)
federal, state or local environmental Laws or (z) the "blue sky" laws of various
states, to the extent applicable or (C) which, if not obtained or made, would
not prevent or delay beyond December 31, 1999 the consummation of any of the
transactions contemplated by this Agreement or otherwise prevent or delay beyond
December 31, 1999 Seller from performing its obligations under this Agreement in
any material respect or have, individually or in the aggregate, a Seller
Material Adverse Effect.
2.6 SEC Documents; Financial Statements; Undisclosed Liabilities.
(a) Seller has filed all Seller SEC Documents (as defined below) on a timely
basis. Section 2.6 of the Seller Disclosure Letter contains a complete list of
all Seller SEC Documents filed by Seller or Seller Partnership with the SEC
since January 1, 1999 and on or prior to the date of this Agreement. All of the
Seller SEC Documents (other than preliminary material), as of their respective
filing dates, complied in all material respects with all applicable requirements
of the Securities Act of 1933, as amended (the "Securities Act"), and the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in each
case, the rules and regulations promulgated thereunder applicable to such Seller
SEC Documents. None of the Seller SEC Documents at the time of filing contained,
or will contain at the time of filing if not yet filed, any untrue statement of
a material fact or omitted, or will omit at the time of filing if not yet filed,
to state any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading, except to the extent such statements have been
modified or superseded by later Seller SEC Documents filed and publicly
available. The consolidated financial statements of Seller included in the
Seller SEC Documents complied (or, with respect to the Seller SEC Documents that
have not been filed on or before the date hereof, will comply) as to form in all
material respects with applicable accounting requirements and the published
rules and regulations of the SEC with respect thereto, have been prepared (or
will be prepared) in accordance with generally accepted accounting principles
("GAAP") (except, in the case of unaudited statements, as permitted by the
applicable rules and regulations of the SEC) applied on a consistent basis
during the periods involved (except as may be
10
<PAGE>
indicated in the notes thereto) and fairly presented (or will fairly present) in
all material respects, in accordance with the applicable requirements of GAAP
and the applicable rules and regulations of the SEC, the consolidated financial
position of Seller and its Subsidiaries, as of the dates thereof and the
consolidated results of operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end audit
adjustments). Seller has no Subsidiaries which are not consolidated for
accounting purposes.
(b) Except (i) for liabilities or obligations incurred in the ordinary
course of business, (ii) for liabilities or obligations incurred in connection
with the transactions contemplated by this Agreement, or (iii) as disclosed in
the Seller SEC Documents filed after December 31, 1998 or in the Seller
Disclosure Letter, Seller and its Subsidiaries have no material liabilities or
obligations (whether absolute, accrued, contingent or otherwise). As used
herein, "Seller SEC Documents" shall mean all reports, schedules, forms,
statements and other documents required to be filed by the Seller with the SEC
since January 1, 1996; PROVIDED that with respect to all representations and
warranties of Seller contained in this Article 2 (except those contained in
Section 2.6(a)), references to Seller SEC Documents shall refer only to those
filings made prior to the date hereof.
2.7 Absence of Certain Changes or Events. Except as disclosed in the
Seller SEC Documents, since the date of the most recent audited financial
statements included in the Seller SEC Documents (the "Seller Financial Statement
Date"), Seller and its Subsidiaries have conducted their business only in the
ordinary course (taking into account prior practices, including the acquisition
of properties and issuance of securities) and, except as disclosed in the Seller
SEC Documents or the Seller Disclosure Letter, there has not been (a) any Seller
Material Adverse Change (as defined below), (b) except for regular quarterly
distributions not in excess of $.25 per Seller Common Share or Seller OP Unit
and dividends on the Seller Preferred Shares in accordance with the terms of
Seller's Certificate of Incorporation, respectively (or as necessary to maintain
REIT status), in each case subject to rounding adjustments as necessary and with
customary record and payment dates, and except as permitted by Section 5.9 of
this Agreement, any authorization, declaration, setting aside or payment of any
dividend or other distribution (whether in cash, stock or property) with respect
to the Seller Common Shares, the Seller OP Units or the Seller Preferred Shares,
(c) any split, combination or reclassification of the Seller Common Shares, the
Seller OP Units or the Seller Preferred Shares or any issuance or the
authorization of any issuance of any other securities in respect of, in lieu of
or in substitution for, or giving the right to acquire by exchange or exercise,
shares of stock of Seller or partnership interests in Seller partnerships or any
issuance of an ownership interest in, any Seller Subsidiary, (d) any damage,
destruction or loss, whether or not covered by insurance, that has or would
reasonably be likely to have a Seller Material Adverse Effect, (e) any change in
financial or tax accounting methods, principles or practices by Seller or any
Seller Subsidiary materially affecting its assets, liabilities or business,
except insofar as may have been required by a change in GAAP, (f) (x) any
granting by Seller or any of its Subsidiaries to any officer or other key
employee of Seller or any of its Subsidiaries of any increase in compensation,
except for normal increases in the ordinary course of business consistent with
past practice or as required under employment agreements in effect as of
December 31, 1998, (y) any granting by Seller or any of its Subsidiaries to any
such officer or key employee of any increase in severance or termination pay,
except as was required under any employment, severance or termination agreements
in effect as of December 31, 1998 or (z) any entry by Seller or any of its
Subsidiaries into any employment, severance or termination agreement with any
such officer or key employee except in the ordinary course of business
consistent with past practice, (g) any acquisition or disposition of any real
property, or any commitment to do so, made by Seller or any of its Subsidiaries
or (h) any making or revocation of any material tax election. As used in this
Agreement, "Seller Material Adverse Change" shall mean (i) any material adverse
change in the business, properties, assets, financial condition or results of
operations of Seller and its Subsidiaries, taken as a whole, or (ii) any other
change that would prevent or delay beyond December 31, 1999 the ability of
Seller, the Seller General Partner or the Seller Partnership from consummating
any of the Transactions.
11
<PAGE>
2.8 Litigation. Except as disclosed in the Seller SEC Documents, and other
than personal injury and other routine tort litigation arising from the ordinary
course of operations of Seller and its Subsidiaries (a) which are covered by
adequate insurance or (b) for which all material costs and liabilities arising
therefrom are reimbursable pursuant to common area maintenance or similar
agreements, as of the date hereof, there are no suits, actions or proceedings
pending (in which service of process has been received by an employee of Seller
or an Seller Subsidiary) or, to the Knowledge of Seller, threatened in writing
against or affecting Seller or any Seller Subsidiary that, individually or in
the aggregate, would reasonably be expected to (i) have a Seller Material
Adverse Effect or (ii) prevent or delay beyond December 31, 1999 the
consummation of any of the material transactions contemplated by this Agreement,
nor are there any judgments, decrees, injunctions, rules or orders of any court
or arbitrator or suits, actions or proceedings pending or threatened in writing
by any Governmental Entity outstanding against Seller or any of its Subsidiaries
with respect to any of the Transactions. Notwithstanding the foregoing, (y)
Section 2.8 of the Seller Disclosure Letter sets forth, as of the date hereof,
each and every (i) uninsured claim with respect to which if determined adversely
would reasonably be expected to result in a dollar cost to Seller or its
Subsidiaries in excess of $100,000, (ii) equal employment opportunity claim
against Seller or a Seller Subsidiary with respect to which if determined
adversely would reasonably be expected to result in a cost in excess of $100,000
and (iii) claim against Seller or a Seller Subsidiary relating to sexual
harassment and/or discrimination pending or, to the Knowledge of Seller,
threatened as of the date hereof with respect to which if determined adversely
would reasonably be expected to result in a cost in excess of $100,000, in each
case with a brief summary of such claim or threatened claim and (z) no claim is
pending or has been made within the five-year period ending on the date of this
Agreement under any director's or officer's liability insurance policy
maintained at any time by Seller or by any of its Subsidiaries.
2.9 Properties.
(a) Seller or a Seller Subsidiary set forth in Section 2.2 of the Seller
Disclosure Letter owns good and marketable fee simple title to each of the real
properties identified in Section 2.2 of the Seller Disclosure Letter
(collectively, the "Seller Properties" and each, a "Seller Property"), which are
all of the real properties owned by them as of the date hereof. Except as set
forth in the existing title reports identified in clause (iii) below and except
for any easements granted in the ordinary course of business since the date of
such title reports which do not have a material adverse effect on the operation
of any of the Seller Properties, no other Person has any real property ownership
interest in any of the Seller Properties. The Seller Properties are not subject
to any rights of way, written agreements, Laws, ordinances and regulations
affecting building use or occupancy, or reservations of an interest in title
(collectively, "Property Restrictions") or Liens (including Liens for Taxes),
mortgages or deeds of trust, claims against title, charges which are Liens,
security interests or other encumbrances on title (the "Encumbrances"), except
for (i) Property Restrictions and Encumbrances set forth in Section 2.9(a)(i) of
the Seller Disclosure Letter, (ii) Property Restrictions imposed or promulgated
by law or any governmental body or authority with respect to real property,
including zoning regulations, which, individually or in the aggregate, would not
have a Seller Material Adverse Effect, (iii) Property Restrictions and
Encumbrances disclosed on existing title reports or existing surveys (in either
case copies of which title reports and surveys have been delivered to Sullivan &
Cromwell or made available to Buyer's representatives at the offices of Hale and
Dorr LLP on or prior to February 18, 1999); provided that such Encumbrances
secure either indebtedness which is described in the Seller Disclosure Letter or
indebtedness which has been discharged in full, and (iv) mechanics', carriers',
workmen's, repairmen's Liens and other Encumbrances and Property Restrictions,
if any, which, individually or in the aggregate, would not have a Seller
Material Adverse Effect. Section 2.9 of the Seller Disclosure Letter lists each
of the Seller Properties which is under development as of the date of this
Agreement and describes the status of such development as of the date hereof.
12
<PAGE>
(b) Valid policies of title insurance have been issued insuring Seller or
the applicable Seller Subsidiary's fee simple title to each of the Seller
Properties owned by it in amounts at least equal to the purchase price thereof
paid by Seller or its Subsidiary subject only to the matters disclosed above and
in Section 2.9(b) of the Seller Disclosure Letter. Such policies are, at the
date hereof, in full force and effect. No claim has been made against any such
policy.
(c) Seller has not failed to obtain and maintain in full force and effect a
certificate, permit or license from any governmental authority having
jurisdiction over any of the Seller Properties which failure, individually or in
the aggregate, would have a Seller Material Adverse Effect. There is no pending
threat of modification or cancellation of any of same which, individually or in
the aggregate, would have a Seller Material Adverse Effect. There is no notice
of any violation of any federal, state or municipal law, ordinance, order,
regulation or requirement issued by any governmental authority which,
individually or in the aggregate, would have a Seller Material Adverse Effect.
There has been no physical damage to any Seller Properties which, individually
or in the aggregate, would have a Seller Material Adverse Effect for which there
is no insurance in effect covering the cost of the restoration.
(d) Neither Seller nor any of the Seller Subsidiaries has received any
notice with respect to any Seller Property to the effect that any condemnation
or rezoning proceedings are pending or threatened which, individually or in the
aggregate, would have a Seller Material Adverse Effect. All work to be
performed, payments to be made and actions to be taken by Seller or the Seller
Subsidiaries prior to the date hereof pursuant to any agreement entered into
with a governmental body or authority in connection with a site approval, zoning
reclassification or other similar action (e.g., Local Improvement District, Road
Improvement District, Environmental Mitigation) material to Seller and the
Seller Subsidiaries taken as a whole have been performed, paid or taken, as the
case may be, and Seller has no Knowledge of any planned or proposed work,
payments or actions that may be required after the date hereof pursuant to such
agreements that are material to Seller and the Seller Subsidiaries taken as a
whole.
(e) Except as set forth in Section 2.9(e) of the Seller Disclosure Letter,
all of the Seller's Properties are self-managed.
(f) The rent roll for the Seller's Properties as of February 1, 1999 has
been previously delivered to Buyer and was complete and correct in all material
respects as of the date thereof.
(g) Except as set forth in Section 2.9(g) of the Seller Disclosure Letter,
no Seller Property is currently under development or subject to any agreement
with respect to development, and neither Seller nor any Seller Subsidiary shall
enter into any such agreements between the date hereof and the Effective Time
without the prior written approval of Buyer; provided, however, that
"development" shall not include capital improvements made in the ordinary course
of business to existing Seller Properties and repairs made to existing Seller
Properties.
(h) No Governmental Entity having jurisdiction over any Seller Property
under development has denied or rejected any applications by Seller for a
certificate, permit or license with respect to such Seller Property, which
denial or rejection, individually or in the aggregate, would have a Seller
Material Adverse Effect.
(i) For purposes of this Section 2.9, all individual items that are
qualified by Seller Material Adverse Effect and do not cause a representation
set forth in this Section 2.9 to be untrue because such items individually do
not have a Seller Material Adverse Effect shall be aggregated and the
representations set forth in this Section 2.9 shall be deemed to be untrue if
the aggregate of all of such individual matters has a Seller Material Adverse
Effect.
(j) All buildings, structures and other improvements in, on or within the
Seller Properties are in good operating condition and repair, subject to
continued repair and replacement in accordance with past practice except for any
failures to be in such condition and repair that would not, individually or in
the aggregate, have a Seller Material Adverse Effect.
13
<PAGE>
2.10 Environmental Matters.
(a) Except as disclosed in the Seller SEC Documents and Seller's
Environmental Reports (as defined below) previously made available to Buyer, to
Seller's knowledge, none of Seller, any of the Seller Subsidiaries or any other
Person has caused or permitted (i) the presence of any hazardous substances,
hazardous materials, toxic substances or waste materials, pollutants,
contaminants, and materials regulated or defined or designated as hazardous,
extremely or imminently hazardous, dangerous, or toxic pursuant to any local,
county, state, territorial or federal governmental authority or with respect to
which such a governmental authority otherwise requires environmental
investigation, monitoring, reporting or remediation (collectively, "Hazardous
Materials") on any of the Seller Properties that is not in compliance with, or
that would result in any liability under, any Environmental Law or (ii) any
spills, releases, discharges or disposal of Hazardous Materials to have occurred
or be presently occurring on or from the Seller Properties as a result of any
construction on or operation and use of the Seller Properties, which presence or
occurrence would, individually or in the aggregate, have a Seller Material
Adverse Effect; and in connection with the construction on or operation and use
of the Seller Properties, Seller and the Seller Subsidiaries have complied with
all applicable local, state and federal Environmental Laws, including all
regulations, ordinances and administrative and judicial orders relating to the
generation, recycling, reuse, sale, storage, handling, transport and disposal of
any Hazardous Materials, except to the extent such failure to comply,
individually or in the aggregate, would not have a Seller Material Adverse
Effect. With respect to each Seller Property, since the date of the most recent
Seller's Environmental Report relating to such Seller Property, except where the
failure of any of the following to be true individually or in the aggregate
would not have a Seller Material Adverse Effect, (i) the assets, properties,
businesses and operations of Seller and its Subsidiaries are and have been in
compliance with applicable Environmental Laws, (ii) Seller and its Subsidiaries
have obtained, currently maintain and, as currently operating, are in compliance
with all Seller Permits necessary under any Environmental Law for the conduct of
the business and operations of Seller and its Subsidiaries in the manner now
conducted, and there are no actions or proceedings pending or threatened to
revoke or materially modify such Seller Permits, (iii) no Hazardous Materials
have been used, stored, manufactured, treated, processed or transported to or
from any such Seller Property except as necessary to the customary conduct of
business and in compliance with law and in a manner that does not result in
liability under Environmental Laws; (iv) there have been no spills, releases,
discharges or disposals of Hazardous Materials on or from such Seller Property;
and (v) Seller and Seller Subsidiaries have not received any notice of potential
responsibility, letter of inquiry or notice of alleged liability from any Person
regarding such Seller Property or the business conducted thereon. For the
purposes of this Paragraph 2.10 only, "Seller Properties" shall be deemed to
include all property formerly owned, operated or leased by Seller or Seller
Subsidiaries; solely, however, as to the period of time when such property was
so owned, operated or leased by Seller or the Seller Subsidiaries. Seller has
previously delivered or made available to Buyer complete copies of all final
versions of environmental investigations and testing or analysis (other than
those which have been superseded by more recent investigations, testing or
analyses) that are in the possession, custody or control of any of Seller or any
of the Seller Subsidiaries with respect to the environmental condition of the
Seller Properties, all of which are listed in Section 2.10 of the Seller
Disclosure Letter ("Seller's Environmental Reports").
(b) Except as set forth in Seller's Environmental Reports, (i) there are no
asbestos-containing materials, lead-based paints, or radon at, in or part of any
facility owned, operated or leased by Seller or any of its Subsidiaries, the
presence of which, individually or in the aggregate, would reasonably be
expected to result in Seller incurring Environmental Liabilities and Costs
aggregating $30 million or more and (ii) there are no underground storage tanks
owned, operated or controlled by Seller or its Subsidiaries on any real property
owned, operated or leased by Seller, the presence of which, individually or in
the aggregate, would be reasonably expected to result in Seller incurring
Environmental Liabilities and Costs aggregating $30 million or more.
14
<PAGE>
(c) For purposes of this Agreement, the terms below shall have the following
meanings:
"ENVIRONMENTAL LAW" means any law (including, without limitation, common
law), regulation, ordinance, guideline, code, decree, judgment, order, permit or
authorization or other legally enforceable requirement of any Governmental
Entity relating to or imposing liability with respect to worker or public safety
or the indoor or outdoor environment or natural resources, including, without
limitation, pollution, contamination, Hazardous Materials, cleanup, regulation
and protection of the air, natural resources, water or soils in the indoor or
outdoor environment; and
"ENVIRONMENTAL LIABILITIES AND COSTS" means all losses, liabilities,
damages, fines, penalties, obligations, costs or expenses (including, without
limitation, fees, disbursements, expenses of legal counsel, experts and
engineers and the costs of investigation and cleanup studies and to remove,
treat or clean up Hazardous Materials) incurred, assessed or levied pursuant to
any Environmental Law.
2.11 Related Party Transactions. Set forth in Section 2.11 of the Seller
Disclosure Letter is a list of all arrangements, agreements and contracts
entered into by Seller or any of the Seller Subsidiaries with any Person who is
an officer, director or Affiliate (as defined below) of Seller, or any entity of
which any of the foregoing is an Affiliate, except those of a type available to
Seller employees generally. Such documents, copies of all of which have
previously been delivered or made available to Buyer, are listed in Section 2.11
of the Seller Disclosure Letter. As used in this Agreement, the term "Affiliate"
shall have the same meaning as such term is defined in Rule 405 promulgated
under the Securities Act.
2.12 Employee Benefits. As used herein, the term "Employee Plan" includes
any pension, retirement, savings, disability, medical, dental, health, life,
death benefit, group insurance, profit sharing, deferred compensation, stock
option, bonus, incentive, vacation pay, tuition reimbursement, severance pay, or
other material employee benefit plan, trust, employment agreement, contract,
agreement, policy or commitment (including, without limitation, any pension
plan, as defined in Section 3(2) of the Employee Retirement Income Security Act
of 1974, as amended and the rules and regulations promulgated thereunder
("ERISA") ("Pension Plan"), and any welfare plan as defined in Section 3(1) of
ERISA ("Welfare Plan")), whether any of the foregoing is funded, insured or
self-funded, written or oral, (i) sponsored or maintained by Seller or its
Subsidiaries (each a "Controlled Group Member") and covering any Controlled
Group Member's active or former employees (or their beneficiaries), (ii) to
which any Controlled Group Member is a party or by which any Controlled Group
Member (or any of the rights, properties or assets thereof) is bound or (iii)
with respect to which any current Controlled Group Member may otherwise have any
material liability (whether or not such Controlled Group Member still maintains
such Employee Plan). Each Employee Plan is listed in Section 2.12 of the Seller
Disclosure Letter. With respect to the Employee Plans:
(a) Except as disclosed in Section 2.12 of the Seller Disclosure Letter, no
Controlled Group Member has any continuing liability under any Welfare Plan
which provides for continuing benefits or coverage for any participant or any
beneficiary of a participant after such participant's termination of employment,
except as may be required by Section 4980B of the Internal Revenue Code of 1986,
as amended (the "Code"), or Section 601 (et seq.) of ERISA, or under any
applicable state law, and at the expense of the participant or the beneficiary
of the participant.
(b) Each Employee Plan complies in all material respects with the applicable
requirements of ERISA and any other applicable law governing such Employee Plan,
and each Employee Plan has at all times been properly administered in all
material respects in accordance with all such requirements of law, and in
accordance with its terms and the terms of any applicable collective bargaining
agreement to the extent consistent with all such requirements of law. Each
Pension Plan which is intended to be qualified is qualified under Section 401(a)
of the Code, has received a favorable determination letter from the IRS stating
that such Plan meets the requirements of Section 401(a) of the Code and that the
trust associated with such Plan is tax exempt under Section 501(a) of the Code
15
<PAGE>
and to the Knowledge of Seller no event has occurred which would jeopardize the
qualified status of any such plan or the tax exempt status of any such trust
under Sections 401(a) and Section 501(a) of the Code, respectively, except in
circumstances in which, individually or in the aggregate, the failure to so
qualify or be tax exempt would not have a Seller Material Adverse Effect. No
lawsuits, claims (other than routine claims for benefits) or complaints to, or
by, any Person or Governmental Entity have been filed or are pending which,
individually or in the aggregate, would have a Seller Material Adverse Effect
and, to the Knowledge of Seller, there is no fact or contemplated event which
would be expected to give rise to any such lawsuit, claim (other than routine
claims for benefits) or complaint with respect to any Employee Plan that would
have a Seller Material Adverse Effect. Without limiting the foregoing, except in
the case of the following clauses (i) through (vi) as would not individually or
in the aggregate have a Seller Material Adverse Effect, the following are true
with respect to each Employee Plan:
(i) all Controlled Group Members have filed or caused to be filed every
material return, report statement, notice, declaration and other document
required by any law or governmental agency, federal, state and local
(including, without limitation, the Internal Revenue Service and the
Department of Labor) with respect to each such Employee Plan, each of such
filings has been complete and accurate in all material respects and no
Controlled Group Member has incurred any material liability in connection
with such filings;
(ii) all Controlled Group Members have delivered or caused to be
delivered to every participant, beneficiary and other party entitled to such
material, all material plan descriptions, returns, reports, schedules,
notices, statements and similar materials, including, without limitation,
summary plan descriptions and summary annual reports, as are required under
Title I of ERISA, the Code, or both, and no Controlled Group Member has
incurred any material liability in connection with such deliveries;
(iii) all contributions and payments with respect to Employee Plans that
are required to be made by a Controlled Group Member with respect to periods
ending on or before the Closing Date (including periods from the first day
of the current plan or policy year to the Closing Date) have been, or will
be, made or accrued before the Closing Date in accordance with the
appropriate plan document, actuarial report, collective bargaining
agreements or insurance contracts or arrangements or as otherwise required
by ERISA or the Code;
(iv) with respect to each such Employee Plan, to the extent applicable,
Seller has delivered to or has made available to Buyer true and complete
copies of (A) plan documents, or any and all other documents that establish
the existence of the plan, trust, arrangement, contract, policy or
commitment and all amendments thereto, (B) the most recent determination
letter, if any, received from the Internal Revenue Service, (C) the three
most recent Form 5500 Annual Reports (and all schedules and reports relating
thereto) and actuarial reports and (D) all related trust agreements,
insurance contract or other funding agreements that implement each such
Employee Plan;
(v) no payment made or to be made to an officer, director or employee
pursuant to an Employee Plan either before, on, or after consummation of the
transactions contemplated by this Agreement shall constitute an "excess
parachute payment" within the meaning of Section 280G of the Code; and
(vi) consummation of the transactions contemplated by this Agreement
shall not (A) give rise to a severance pay obligation with respect to those
employees who continue employment with the Surviving Corporation or (B)
enhance or trigger (including acceleration of vesting, payment or funding)
any benefits under any Employee Plan.
(c) With respect to each Employee Plan, there has not occurred, and no
Person or entity is contractually bound to enter into, any "prohibited
transaction" within the meaning of Section 4975(c)
16
<PAGE>
of the Code of Section 406 of ERISA, which transaction is not exempt under
Section 4975(d) of the Code or Section 408 of ERISA which, individually or in
the aggregate, would have a Seller Material Adverse Effect.
(d) No Controlled Group Member has maintained or been obligated to
contribute to any Employee Plan subject to Code Section 412 or Title IV of
ERISA.
2.13 Employee Matters. Neither Seller nor any of the Seller Subsidiaries
is a party to, or bound by, any collective bargaining agreement, contract or
other agreement or understanding with a labor union or other labor organization,
nor has Seller or any of the Seller Subsidiaries agreed that any unit of its
employees is appropriate for collective bargaining. No union or other labor
organization has been certified as bargaining representative for any of Seller's
employees. To the Knowledge of Seller, there are no organizational efforts with
respect to the formation of a collective bargaining unit presently being made or
threatened involving employees of Seller or any of the Seller Subsidiaries.
2.14 Taxes.
(a) Each of Seller and the Seller Subsidiaries and any consolidated,
combined, unitary or aggregate group for tax purposes of which Seller or any
Seller Subsidiary is or has been a member has timely filed all Tax Returns (as
defined below) required to be filed by it (after giving effect to any timely
filed extension properly granted by a Tax Authority (as defined below) having
authority to do so) and has timely paid (or Seller has timely paid on its
behalf) all Taxes (as defined below) shown on such Tax Returns as required to be
paid by it except (i) as set forth in Section 2.14 of the Seller Disclosure
Letter, (ii) Taxes that are being contested in good faith by appropriate
proceedings and for which Seller or the applicable Seller Subsidiary shall have
set aside on its books adequate reserves or (iii) where the failure to file such
Tax Returns or pay such Taxes would not have a Seller Material Adverse Effect.
Each such Tax Return is complete and accurate except where any failure to be
complete and accurate would not have a Seller Material Adverse Effect. The most
recent audited financial statements contained in the Seller SEC Documents
reflect an adequate reserve for all Taxes payable by Seller and the Seller
Subsidiaries for all taxable periods and portions thereof through the date of
such financial statements except where any failure would not have a Seller
Material Adverse Effect. Since the Seller Financial Statement Date, Seller has
incurred no liability for Taxes under Sections 857(b), 857(f), 860(c) or 4981 of
the Code, including without limitation any Tax arising from a prohibited
transaction described in Section 857(b)(6) of the Code, and neither Seller nor
any Seller Subsidiary has incurred any material liability for Taxes other than
in the ordinary course of business. No event has occurred, and no condition or
circumstance exists, which presents a risk that any Tax described in the
preceding sentence will be imposed upon Seller or any Seller Subsidiary except
where any failure would not have a Seller Material Adverse Effect. No material
deficiencies for any Taxes have been proposed, asserted or assessed against
Seller or any Seller Subsidiary, and no requests for waivers of the time to
assess any such Taxes are pending and no extensions of time to assess any such
Taxes are in effect. All Taxes required to be withheld, collected and paid over
to any Tax Authority by the Seller and any Seller Subsidiary have been timely
withheld, collected and paid over to the proper Tax Authority except where
failure to do so would not have a Seller Material Adverse Effect. Except as set
forth in Section 2.14 of the Seller Disclosure Letter, there are no material
pending actions or proceedings by any Taxing Authority for assessment or
collection of any Tax. Complete copies of all federal, state and local income or
franchise Tax Returns that have been filed by Seller and each Seller Subsidiary
for all taxable years beginning on or after January 1, 1996, all extensions
filed with any Tax Authority that are currently in effect and all written
communications with a Taxing Authority relating thereto, have been or will
hereafter promptly be delivered to the Buyer and the representatives of the
Buyer. No claim has been made by a Taxing Authority in a jurisdiction where
Seller or any Seller Subsidiary does not file Tax Returns that it is or may be
subject to taxation by the jurisdiction except where the failure to file such
Tax Return would not have a Seller Material Adverse Effect. Neither the Seller
nor any Seller Subsidiary holds any material asset (A) the disposition of which
would be subject to rules similar to
17
<PAGE>
Section 1374 of the Code as a result of an election under Internal Revenue
Service Notice 88-19, or (B) that is subject to a consent filed pursuant to
Section 341(f) of the Code and the regulations thereunder. Except as set forth
in Section 2.14 of the Seller Disclosure Letter, neither the Seller, nor any
Seller Subsidiary is obligated to make after the Closing any payment that would
not be deductible pursuant to Section 162(m) of the Code except where the lack
of such deduction would not have a Seller Material Adverse Effect. Except as set
forth in Section 2.14 of the Seller Disclosure Letter, neither Seller nor any
Seller Subsidiary is party to, nor has any liability under (including liability
with respect to any predecessor entity), any indemnification, allocation or
sharing agreement with respect to Taxes. As used in this Agreement, "Tax" or
"Taxes" shall include all federal, state, local and foreign income, property,
sales, use, occupancy, transfer, recording, withholding, franchise, employment,
excise and other taxes, tariffs or governmental charges of any nature
whatsoever, together with penalties, interest or additions to tax with respect
thereto. As used in this Agreement, "Tax Return" or "Tax Returns" shall include
all original and amended returns and reports (including elections, claims,
declarations, disclosures, schedules, estimates, computations and information
returns) required to be supplied to a Tax Authority in any jurisdiction. As used
in this Agreement, "Tax Authority" shall mean the Internal Revenue Service and
any other domestic or foreign bureau, department, entity, agency or other
Governmental Entity responsible for the administration of any Tax.
(b) Seller (i) for all taxable years commencing with its initial taxable
year through December 31, 1998 has been properly subject to taxation as a real
estate investment trust (a "REIT") within the meaning of Section 856 of the Code
and has qualified as a REIT for such years, (ii) has operated since December 31,
1998, and will continue to operate to the Closing, in such a manner as to
qualify as a REIT for the taxable year beginning January 1, 1999 determined as
if the taxable year of the REIT ended as of the Closing and (iii) has not taken
or omitted to take any action which would reasonably be expected to result in a
challenge to its status as a REIT, and no such challenge is pending or to
Seller's Knowledge threatened. Each Seller Subsidiary which is a partnership,
joint venture or limited liability company (i) has been since its formation and
continues to be treated for federal income tax purposes as a partnership or
disregarded as a separate entity, as the case may be, and has not been treated
for federal income tax purposes as a corporation or an association taxable as a
corporation and (ii) has not since the later of its formation or the acquisition
by Seller of a direct or indirect interest therein owned any assets (including,
without limitation, securities) that would cause Seller to violate Section
856(c)(4) of the Code. The nature of the assets of the Seller and the Seller
Subsidiaries is such that the sale of all of the assets owned by them would not
cause the Seller to be disqualified as a REIT under Code Section 856(c)(2) or
856(c)(3) or otherwise. The Seller has not elected and will not elect to pay Tax
on any capital gain recognized on or after January 1, 1999. Each Seller
Subsidiary which is a corporation has been since its formation a qualified REIT
subsidiary under Section 856(i) of the Code. Seller Partnership is not a
publicly traded partnership within the meaning of Section 7704 of the Code, and
the interests in the Seller Partnership are not considered to be (i) traded on
an established securities market or (ii) readily tradable on a secondary market
or the substantial equivalent thereof under either Internal Revenue Service
Notice 88-75 or Treasury Regulations Section 1.7704-1. In the case of a partner
of Seller Partnership that is a Flow-Through Entity (as defined below), no
Person owning an interest in such Flow-Through Entity (directly or through
another Flow-Through Entity) is treated as a partner of the Seller Partnership
under either Internal Revenue Service Notice 88-75 or Treasury Regulation
Section 1.7704-1(h)(3). For purposes of this Section 2.14(b), "Flow-Through
Entity" means an entity classified as a partnership, a grantor trust or an S
corporation for federal income tax purposes.
(c) For purposes of this Section 2.14, all individual items that are
qualified by Seller Material Adverse Effect and do not cause a representation
set forth in this Section 2.14 to be untrue because such items individually do
not have a Seller Material Adverse Effect shall be aggregated and the
representations set forth in this Section 2.14 shall be deemed to be untrue if
the aggregate of all of such individual matters has a Seller Material Adverse
Effect.
18
<PAGE>
2.15 No Payments to Employees, Officers or Directors. Section 2.15 of the
Seller Disclosure Letter contains a true and complete list of all cash and
non-cash payments, rights to property or other contract rights which will become
payable, accelerated or vested to or in each employee, officer or director of
Seller or any Seller Subsidiary as a result of the Merger. There is no
employment or severance contract, or other agreement requiring payments or an
increase in existing payments, cancellation of indebtedness or other obligation
to be made on a change of control or otherwise as a result of the consummation
of any of the transactions contemplated by this Agreement, with respect to any
employee, officer or director of Seller or any Seller Subsidiary.
2.16 Brokers. No broker, investment banker, financial advisor or other
Person, other than Lazard Freres & Co. LLC ("Lazard"), Lehman Brothers Inc.
("Lehman") and Prudential Securities Incorporated ("Prudential"), the fees and
expenses of which are as described in the engagement letters dated May 22, 1998,
as amended on July 27, 1998, May 26, 1998, and December 17, 1998, respectively,
and, in the case of Prudential, as further amended on April 13, 1999, true and
correct copies of which have previously been given to Buyer, is entitled to any
broker's, finder's, financial advisor's or other similar fee or commission in
connection with the transactions contemplated hereby based upon arrangements
made by or on behalf of Seller or any Seller Subsidiary.
2.17 Compliance With Laws. Except as set forth on Section 2.17 of the
Seller Disclosure Letter, (i) neither Seller nor any of the Seller Subsidiaries
has violated or failed to comply with any statute, law, ordinance, regulation,
rule, judgment, decree or order of any Governmental Entity applicable to its
business, properties or operations, except to the extent that such violation or
failure has not had or would not reasonably be expected to have a Seller
Material Adverse Effect; (ii) Seller and its Subsidiaries have, and are in
compliance with, all permits, licenses, certificates, franchises, registrations,
variances, exemptions, orders and approvals of all Governmental Entities which
are material to the operation of their businesses, taken as a whole ("Seller
Permits"), except where the failure to comply has not had or would not
reasonably be expected to have a Seller Material Adverse Effect; and (iii) no
investigation by any Governmental Entity with respect to the Seller or the
Seller Subsidiaries is pending or, to the knowledge of the Seller, threatened,
other than investigations which, individually or in the aggregate, would not
reasonably be expected to have a Seller Material Adverse Effect.
2.18 Contracts; Debt Instruments.
(a) Except as disclosed in the Seller SEC Documents, there is no contract or
agreement that purports to limit in any material respect the geographic location
in which Seller or any Seller Subsidiary may conduct its business. Neither
Seller nor any Seller Subsidiary (i) is in violation of or in default under any
material loan or credit agreement, note, bond, mortgage, indenture, lease,
permit, concession, franchise, license or any other material contract,
agreement, arrangement or understanding, to which it is a party or by which it
or any of its properties or assets is bound (each, a "Material Contract"), nor
(ii) to the Knowledge of Seller does such a violation or default exist, except
to the extent that such violation or default referred to in clauses (i) or (ii),
individually or in the aggregate, would not have a Seller Material Adverse
Effect. Each Material Contract which has not been filed as an Exhibit to any of
the Seller SEC Documents has been previously delivered to Sullivan & Cromwell or
made available to Buyer's representatives at the offices of Hale and Dorr LLP on
or prior to February 18, 1999, and a list of all Material Contracts that have
not been so filed is set forth in Section 2.18(a) of the Seller Disclosure
Letter. Seller has previously delivered to Sullivan & Cromwell or made available
to Buyer's representatives at the offices of Hale and Dorr LLP on or prior to
February 18, 1999, all contracts and other agreements relating to the
contribution of assets to Seller Partnership in exchange for Seller OP Units
(the "Seller Contribution Agreements"). Except as set forth in Section 2.18(a)
of the Seller Disclosure Letter, neither Seller nor any of its Subsidiaries is
in default in any respect in the performance, observance or fulfillment of any
of the obligations, covenants or conditions contained in any Material Contract
to which it is a party where such default, individually or in the aggregate,
would reasonably be expected to have a Seller Material Adverse Effect.
19
<PAGE>
(b) Section 2.18(b) of the Seller Disclosure Letter sets forth a list as of
the date hereof of each loan or credit agreement, note, bond, mortgage,
indenture and any other agreement and instrument pursuant to which any
Indebtedness (as defined below) of Seller or any of Seller Subsidiaries, other
than Indebtedness payable to Seller or a Seller Subsidiary, is outstanding or
may be incurred in an amount in excess of $50,000, together with the amount
outstanding thereunder as of the date hereof. For purposes of this Section 2.18,
"Indebtedness" shall mean (i) indebtedness for borrowed money, whether secured
or unsecured, (ii) obligations under conditional sale or other title retention
agreements relating to property purchased by such Person, (iii) capitalized
lease obligations, (iv) obligations under interest rate cap, swap, collar or
similar transaction or currency hedging transactions (valued at the termination
value thereof) and (v) guarantees of any such indebtedness of any other Person.
(c) To the extent not set forth in response to the requirements of Section
2.18(b), Section 2.18 of the Seller Disclosure Letter sets forth as of the date
hereof each interest rate cap, interest rate collar, interest rate swap,
currency hedging transaction, and any other agreement relating to a similar
transaction, in each case involving $50,000 or more, to which Seller or any
Seller Subsidiary is a party or an obligor with respect thereto.
(d) Neither Seller nor any of the Seller Subsidiaries is a party to any
agreement relating to the management of any of the Seller Properties by any
Person other than Seller Partnership.
(e) Neither Seller nor any of the Seller Subsidiaries is a party to any
agreement pursuant to which Seller or any Seller Subsidiary manages any real
properties other than Seller Properties, except for the agreements described in
Section 2.18 of the Seller Disclosure Letter (the "Outside Property Management
Agreements"). The Outside Property Management Agreements constitute legal,
valid, binding and enforceable obligations of Seller and, to Seller's Knowledge,
of each other party thereto, and there exists no default of Seller or, to
Seller's Knowledge, any other party thereto, except for any defaults that would
not reasonably be expected to have a Seller Material Adverse Effect.
(f) Section 2.18 of the Seller Disclosure Letter lists all agreements
entered into by Seller or any of the Seller Subsidiaries relating to the
development or construction of, or additions or expansions to, any Seller
Properties which are currently in effect and under which Seller or any of the
Seller Subsidiaries currently has, or expects to incur, any obligation in excess
of $1,000,000 per Seller Property or $10,000,000 in the aggregate. True and
correct copies of such agreements have previously been delivered or made
available to Buyer.
(g) Section 2.18(g) of the Seller Disclosure Letter lists all agreements
entered into by Seller or any of the Seller Subsidiaries providing for the sale
or exchange of, or option to sell or exchange, any Seller Properties or the
purchase of or exchange, or option to purchase or exchange, any real estate
which are currently in effect.
(h) Neither Seller nor any Seller Subsidiary has any continuing contractual
liability (i) for indemnification or otherwise under any agreement relating to
the sale of real estate previously owned, whether directly or indirectly, by
Seller or any Seller Subsidiary,(ii) to pay any additional purchase price for
any of the Seller Properties, or (iii) to make any reprorations or adjustments
to prorations involving an amount in excess of $100,000 that may previously have
been made with respect to any property currently or formerly owned by Seller.
(i) Neither Seller nor any Seller Subsidiary has entered into or is subject,
directly or indirectly, to any "Tax Protection Agreements." As used herein, a
Tax Protection Agreement is an agreement, oral or written, (A) that has as one
of its purposes to permit a Person to take the position that such Person could
defer federal taxable income that otherwise might have been recognized upon a
transfer of property to Seller Partnership or any other Seller Subsidiary that
is treated as a partnership for federal income tax purposes, and (B) that (i)
prohibits or restricts in any manner the disposition of any assets
20
<PAGE>
of Seller or any Seller Subsidiary, (ii) requires that Seller or any Seller
Subsidiary maintain, or put in place, or replace, indebtedness, secured by one
or more of the Seller Properties, or (iii) requires that Seller or any Seller
Subsidiary offer to any Person at any time the opportunity to guarantee or
otherwise assume, directly or indirectly, the risk of loss for federal income
tax purposes for indebtedness or other liabilities of Seller or any Seller
Subsidiary.
(j) Except as set forth in Section 2.18(j) of Seller Disclosure Letter and
except for obligations to provide funds to the Seller Partnership or to Seller
Subsidiaries owned entirely by Seller and/or Seller Partnership, there are no
material outstanding contractual obligations of Seller or its Subsidiaries to
provide any funds to, or make investments in, any other Person.
(k) Except as set forth in Section 2.18(k) of the Seller Disclosure Letter
and Section 2.18(i), neither Seller nor any of the Seller Subsidiaries is party
to any agreement which would restrict any of them from prepaying any of their
Indebtedness without penalty or premium at any time or which requires any of
them to maintain any amount of Indebtedness with respect to any of the Seller
Properties.
2.19 Opinions of Financial Advisors. Seller has received the opinions of
Lazard, Lehman and Prudential, each dated April 13, 1999, a signed copy of each
of which is being provided to Buyer concurrently with the execution and delivery
of this Agreement, with respect to the fairness of the cash consideration to be
received by the holders (other than Parent and its Subsidiaries) of Seller
Common Shares and Seller OP Units in connection with the Merger and the
Partnership Merger.
2.20 State Takeover Statutes. Seller has taken all action necessary to
exempt the transactions contemplated by this Agreement, including without
limitation the Merger and the Alternative Merger, among Parent, Buyer and Seller
and their respective Affiliates from the operation of any "fair price,"
"moratorium," "control share acquisition" or any other anti-takeover statute or
similar statute other than Section 203 of the DGCL enacted under the state or
federal Laws of the United States or similar statute or regulation (a "Takeover
Statute"). Assuming the accuracy of the representation and warranty of Parent
and Buyer set forth in Section 3.14, the action of the Board of Directors of the
Seller in approving the Merger and this Agreement (and the transactions provided
for herein) is sufficient to render inapplicable to the Merger and this
Agreement (and the transactions provided for herein, including without
limitation the Alternative Merger) the restrictions on "business combinations"
(as defined in Section 203 of the DGCL) set forth in Section 203 of the DGCL.
2.21 Proxy Statement and Consent Solicitation Statement. The information
relating to Seller and the Seller Subsidiaries included in the Proxy Statement
(as defined in Section 5.1(a)) and the Consent Solicitation Statement (as
defined in Section 5.1(a)) will not, as of the date of mailing of the Proxy
Statement and the Consent Solicitation Statement, respectively, contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
2.22 Investment Company Act of 1940. Neither Seller nor any of Seller
Subsidiaries is, or at the Effective Time will be, required to be registered
under the Investment Company Act of 1940, as amended (the "1940 Act").
2.23 Definition of Knowledge of Seller. As used in this Agreement, the
phrase "Knowledge of Seller" (or words of similar import) means the knowledge of
those individuals identified in Section 2.23 of the Seller Disclosure Letter.
2.24 Insurance. Seller and Seller Subsidiaries maintain insurance coverage
for Seller and Seller Subsidiaries and their respective properties and assets of
a type and in amounts typical of similar companies engaged in the respective
businesses in which Seller and Seller Subsidiaries are engaged. All such
insurance policies (a) are in full force and effect, and with respect to all
policies neither of Seller nor any Seller Subsidiary is delinquent in the
payment of any premiums thereon, and no notice of
21
<PAGE>
cancellation or termination has been received with respect to any such policy,
and (b) are sufficient for compliance with all requirements of law and of all
agreements to which Seller or the Seller Subsidiaries are a party or otherwise
bound and are valid, outstanding, collectible, and enforceable policies, subject
to any exception in the case of either clause (a) or (b), as would not, alone or
in the aggregate, be reasonably expected to have a Seller Material Adverse
Effect or prevent or materially delay the ability of Seller to consummate the
transactions contemplated by this Agreement. Neither Seller nor any Seller
Subsidiary has received written notice within the last 12 months from any
insurance company or board of fire underwriters of any defects or inadequacies
that would materially adversely affect the insurability of, or cause any
material increase in the premiums for, insurance covering either Seller or any
Seller Subsidiary or any of their respective properties or assets that have not
been cured or repaired to the satisfaction of the party issuing the notice,
except as would not have a Seller Material Adverse Effect.
2.25 Board Recommendation. The Board of Directors of Seller, at a meeting
duly called and held on April 13, 1999, based upon the recommendations of a
special committee of the Board of Directors of the Seller consisting of four
directors unaffiliated with Parent or Buyer, unanimously adopted resolutions
adopting this Agreement and approving the transactions contemplated hereby,
including the Merger and the Alternative Merger. The Board of Directors of the
general partner of the Seller Partnership (the "Seller General Partner"), at a
meeting duly called and held on April 13, 1999, unanimously adopted resolutions
adopting the Partnership Merger Agreement and approving the transactions
contemplated thereby, including, without limitation, the Partnership Merger
(such transactions, together with the transactions contemplated by this
Agreement, including, without limitation, the Merger and the Alternative Merger,
are hereinafter collectively referred to as the "Transactions"). The Board of
Directors of the Seller recommended that Seller's stockholders adopt this
Agreement and approve the Merger and the Alternative Merger and the Board of
Directors of the Seller General Partner recommended that the Seller Unit Holders
adopt the Partnership Merger Agreement and approve the Partnership Merger. Such
recommendations shall not be withdrawn, modified or amended, other than as
expressly permitted under Section 4.1.
2.26 Representations in Partnership Merger Agreement. The representations
and warranties of the Seller General Partner and the Seller Partnership set
forth in the Partnership Merger Agreement are true and correct.
22
<PAGE>
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF PARENT AND BUYER
Parent and Buyer, jointly and severally, represent and warrant to Seller,
except as set forth in the letter of even date herewith signed by a general
partner of Parent and the sole member of Buyer and delivered to Seller prior to
the execution hereof (the "Buyer Disclosure Letter") (it being understood that
the Buyer Disclosure Letter shall be arranged in sections corresponding to the
sections contained in this Article 3, and the disclosures in any section of the
Buyer Disclosure Letter shall qualify all of the representations in the
corresponding section of this Article 3 and, in addition, other sections in this
Article 3 to the extent it is clear from a reading of the disclosure that such
disclosure is applicable to such other sections) as follows:
3.1 Organization, Standing and Power of Parent and Buyer.
(a) Parent is a limited partnership duly organized and validly existing
under the Laws of Delaware and has the requisite power and authority to carry on
its business as now being conducted. Parent is duly qualified or licensed to do
business as a foreign limited partnership and is in good standing in each
jurisdiction in which the nature of its business or the ownership or leasing of
its properties makes such qualification or licensing necessary, other than in
such jurisdictions where the failure to be so qualified or licensed,
individually or in the aggregate, would not have a material adverse effect on
the ability of Parent and Buyer to consummate the transactions contemplated by
this Agreement or the Partnership Merger Agreement ("Parent Material Adverse
Effect"). Parent has delivered to Seller complete and correct copies of its
organizational documents (including the partnership agreement of Parent) as
amended or supplemented to the date of this Agreement.
(b) Buyer is a limited liability company duly organized and validly existing
under the Laws of Delaware and has the requisite power and authority to carry on
its business as now being conducted. Buyer is duly qualified or licensed to do
business as a foreign limited liability company and is in good standing in each
jurisdiction in which the nature of its business or the ownership or leasing of
its properties makes such qualifications or licensing necessary, other than in
such jurisdictions where the failure to be so qualified or licensed,
individually or in the aggregate, would not have a material adverse effect on
the ability of Buyer to consummate the transactions contemplated by this
Agreement or the Partnership Merger Agreement (a "Buyer Material Adverse
Effect"). Buyer has delivered to Seller complete and correct copies of its
organizational documents as amended or supplemented to the date of this
Agreement.
(c) Parent and Buyer are newly formed and, except for activities incident to
the acquisition of Seller, neither Parent nor Buyer has (i) engaged in any
business activities of any type or kind whatsoever or (ii) acquired any property
of any type or kind whatsoever.
3.2 [Intentionally Omitted].
3.3 Ownership of Parent and Buyer. All of Parent's partnership interests
are owned by affiliates of The Berkshire Companies Limited Partnership,
Whitehall Street Real Estate Limited Partnership XI and Blackstone Real Estate
Acquisitions III L.L.C. Buyer is a wholly owned Subsidiary of Parent.
3.4 Authority; Noncontravention; Consents.
(a) Each of Parent and Buyer has the requisite power and authority to enter
into this Agreement and to consummate the transactions contemplated by this
Agreement to which it is a party. The execution and delivery of this Agreement
by Parent and Buyer and the consummation by Parent and Buyer of the transactions
contemplated by this Agreement to which Parent and/or Buyer is a party have been
duly authorized by all necessary partnership or limited liability company action
on the part of Parent and Buyer. This Agreement has been duly executed and
delivered by Parent and Buyer and constitutes a valid and binding obligation of
each of Parent and Buyer, enforceable against each of
23
<PAGE>
Parent and Buyer in accordance with and subject to its terms, subject to
applicable bankruptcy, insolvency, moratorium or other similar Laws relating to
creditors' rights and general principles of equity.
(b) The execution and delivery of this Agreement by each of Parent and Buyer
does not, and the consummation of the transactions contemplated by this
Agreement to which Parent and/or Buyer is a party and compliance by each of
Parent and Buyer with the provisions of this Agreement will not, conflict with,
or result in any violation of or default (with or without notice or lapse of
time, or both) under, or give rise to a right of termination, cancellation or
acceleration of any material obligation or to loss of a material benefit under,
or result in the creation of any Lien upon any of the properties or assets of
Parent or any of its Subsidiaries under, (i) the organizational documents of
Parent or Buyer or the comparable certificate of incorporation or organizational
documents or partnership or similar agreement (as the case may be) of any other
Subsidiary of the Parent, each as amended or supplemented to the date of this
Agreement, (ii) any loan or credit agreement, note, bond, mortgage, indenture,
reciprocal easement agreement, lease or other agreement, instrument, permit,
concession, franchise or license applicable to Parent or any of its Subsidiaries
or their respective properties or assets or (iii) subject to the governmental
filings and other matters referred to in the following sentence, any Laws
applicable to Parent or any of its Subsidiaries or their respective properties
or assets, other than, in the case of clause (ii) or (iii), any such conflicts,
violations, defaults, rights, loss or Liens that individually or in the
aggregate would not reasonably be expected to (x) have a Parent Material Adverse
Effect or a Buyer Material Adverse Effect or (y) prevent the consummation of the
transactions contemplated by this Agreement. No consent, approval, order or
authorization of, or registration, declaration or filing with, any Governmental
Entity is required by or with respect to Parent or any of its Subsidiaries in
connection with the execution and delivery of this Agreement by Parent or Buyer
or the consummation by Parent or Buyer of any of the transactions contemplated
by this Agreement, except for (i) any filings required under the Exchange Act
(including Schedule 13E-3), (ii) the filing of the Certificate of Merger with
the Secretary of State of the State of Delaware, (iii) the filing of a
certificate of merger with the Secretary of State of the State of Delaware with
respect to the Partnership Merger, (iv) such filings as may be required in
connection with the payment of any Transfer Taxes (as defined in Section 5.6),
(v) any filings required under the HSR Act, (vi) the filing of a Form D with the
SEC with respect to the transaction contemplated by the Partnership Merger
Agreement and (vii) such other consents, approvals, orders, authorizations,
registrations, declarations and filings (A) as may be required under federal,
state or local environmental Laws, (B) as may be required under the "blue sky"
laws of various states, to the extent applicable, or (C) which, if not obtained
or made, would not prevent or delay beyond December 31, 1999 the consummation of
any of the transactions contemplated by this Agreement or otherwise prevent
Parent or Buyer from performing its obligations under this Agreement in any
material respect or have, individually or in the aggregate, a Parent Material
Adverse Effect.
3.5 Litigation. As of the date of this Agreement, there is no suit, action
or proceeding pending (in which service of process has been received by an
employee of Parent or any of its Subsidiaries) or, to the Knowledge of Parent
(as defined in Section 3.15), threatened in writing against or affecting Parent
or any of its Subsidiaries that, individually or in the aggregate, would
reasonably be expected to prevent or delay beyond December 31, 1999 the
consummation of any of the material transactions contemplated by this Agreement,
nor, as of the date of this Agreement, is there any judgment, decree,
injunction, rule or order of any Governmental Entity or arbitrator outstanding
against Parent or any of its Subsidiaries having, or which, insofar as
reasonably can be foreseen, in the future would have, any such effect.
3.6 Undisclosed Liability. Neither Parent nor Buyer has any liabilities or
obligations of any nature (whether accrued, absolute, contingent or otherwise)
required by GAAP to be set forth on a
24
<PAGE>
consolidated balance sheet of Parent or Buyer or in the notes thereto and which,
individually or in the aggregate, would have a Parent Material Adverse Effect or
Buyer Material Adverse Effect.
3.7 Brokers. No broker, investment banker, financial advisor or other
Person, other than Greenhill & Co., LLC, the fees and expenses of which will be
paid by Parent, is entitled to any broker's, finder's, financial advisor's or
other similar fee or commission in connection with the Merger based upon
arrangements made by or on behalf of Parent or any of its Subsidiaries.
3.8 Compliance With Laws. Neither Parent nor any of its Subsidiaries has
violated or failed to comply with any statute, law, ordinance, regulation, rule,
judgment, decree or order of any Governmental Entity applicable to its business,
properties or operations, except to the extent that such violation or failure
would not reasonably be expected to have a Parent Material Adverse Effect or
Buyer Material Adverse Effect.
3.9 Contracts; Debt Instruments. Neither Parent nor any of its
Subsidiaries (i) has received a written notice that Parent or any of its
Subsidiaries is in violation of or in default under any material loan or credit
agreement, note, bond, mortgage, indenture, lease, permit, concession,
franchise, license or any other material contract, agreement, arrangement or
understanding, to which it is a party or by which it or any of its properties or
assets is bound, nor (ii) to the Knowledge of Buyer (as defined in Section 3.15)
does such a violation or default exist, except to the extent such violation or
default referred to in clauses (i) or (ii), individually or in the aggregate,
would not have a Parent Material Adverse Effect or a Buyer Material Adverse
Effect.
3.10 Solvency. Immediately after giving effect to the transactions
contemplated by this Agreement, the Partnership Merger Agreement and the Equity
Commitments and the closing of any financing to be obtained by the Parent, Buyer
or Buyer Operating Partnership in order to effect the transactions contemplated
by this Agreement, the Surviving Company and the Surviving Operating Partnership
shall be able to pay their respective debts as they become due and shall each
own property having a fair saleable value greater than the amounts required to
pay its debts (including a reasonable estimate of the amount of all contingent
liabilities). Immediately after giving effect to the transactions contemplated
by this Agreement, the Partnership Merger Agreement and the Equity Commitments
and the closing of any financing to be obtained by Parent, Buyer or Buyer
Operating Partnership in order to effect the transactions contemplated by this
Agreement and the Partnership Merger Agreement, the Surviving Company and the
Surviving Operating Partnership shall have adequate capital to carry on their
respective businesses. No transfer of property is being made and no obligation
is being incurred in connection with the transactions contemplated by this
Agreement and the Partnership Merger Agreement and the closing of any financing
to be obtained by Parent, Buyer or Buyer Operating Partnership in order to
effect the transactions contemplated by this Agreement and the Partnership
Merger Agreement with the intent to hinder, delay or defraud either present or
future creditors of Parent, Buyer, Buyer Operating Partnership, the Surviving
Company or the Surviving Operating Partnership.
3.11 [Intentionally Omitted].
3.12 Proxy Statement and Consent Solicitation Statement. The information
provided by Parent or Buyer with respect to Parent and its Subsidiaries for
inclusion in the Proxy Statement and the Consent Solicitation Statement will
not, as of the date of mailing of the Proxy Statement and the Consent
Solicitation Statement, respectively, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein, or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
3.13 Investment Company Act of 1940. Neither Parent nor any of its
Subsidiaries is, or at the Effective Time will be, required to be registered
under the 1940 Act.
25
<PAGE>
3.14 Parent and Buyer Not Interested Stockholders. Neither Parent nor
Buyer is an "interested stockholder" of Seller within the meaning of Section 203
of the DGCL.
3.15 Definition of Knowledge. As used in this Agreement, the phrase
"Knowledge of Parent" or "Knowledge of Buyer" (or words of similar import) means
the knowledge of those individuals identified in Section 3.15 of the Buyer
Disclosure Letter.
3.16 [Intentionally Omitted].
3.17 Sufficient Funds. After giving effect to Parent's equity commitments
provided in the partnership agreement of Parent (the "Equity Commitments"), and
to borrowings under Parent's financing commitments attached as Exhibit A (the
"Financing Commitments"), the Surviving Company and the Surviving Operating
Partnership will have sufficient funds available to:
(a) refinance or repay in cash all indebtedness for borrowed money of Seller
or any Seller Subsidiary that will become due as a result of the transactions
contemplated by this Agreement or the Partnership Merger Agreement, plus unpaid
interest accrued thereon, and any prepayment, breakage or other costs associated
with the repayment or refinancing, as the case may be;
(b) pay all amounts required to be paid pursuant to this Agreement and the
Partnership Merger Agreement;
(c) pay all fees, costs and expenses incurred by Seller and the Seller
Partnership in connection with this Agreement, the Partnership Merger Agreement
and the transactions contemplated herein and therein assuming such fees, costs
and expenses (other than severance costs) are not in excess of $11 million; and
(d) pay all fees, costs and expenses incurred by Parent, Buyer and Buyer
Operating Partnership in connection with this Agreement, the Partnership Merger
Agreement and the other transactions contemplated herein and therein.
3.18 Pro Forma Capitalization Table. Attached hereto as Exhibit B is a
true and correct pro forma capitalization table of Parent and its Subsidiaries,
giving effect to the Equity Commitments, the Financing Commitments and
consummation of the transactions contemplated by this Agreement and the
Partnership Merger Agreement.
3.19 Representations in Partnership Merger Agreement. The representations
and warranties of Parent and the Buyer Operating Partnership set forth in the
Partnership Merger Agreement are true and correct.
26
<PAGE>
ARTICLE 4
COVENANTS
4.1 Acquisition Proposals. During the period from the date hereof and
continuing through the Effective Time or the earlier termination of this
Agreement in accordance with its terms, Seller agrees that:
(a) neither it nor any of the Seller Subsidiaries shall initiate, solicit or
knowingly encourage, directly or indirectly, any inquiries or the making or
implementation of any proposal or offer (including, without limitation, any
proposal or offer to its stockholders) with respect to a merger, acquisition,
tender offer, exchange offer, consolidation, sale of assets or similar
transaction involving all or any significant portion of the assets or any equity
securities of, Seller or any of its Subsidiaries, other than the transactions
contemplated by this Agreement (any such proposal or offer being hereinafter
referred to as an "Acquisition Proposal") or engage in any negotiations
concerning or provide any confidential information or data to, or have any
discussions with, any Person relating to an Acquisition Proposal, or otherwise
facilitate any effort or attempt to make or implement an Acquisition Proposal;
(b) it shall direct and use its best efforts to cause its officers,
directors, employees, agents or financial advisors not to engage in any of the
activities described in Section 4.1(a);
(c) it will immediately cease and cause to be terminated any existing
activities, discussions or negotiations with any parties conducted heretofore
with respect to any of the foregoing and will take the necessary steps to inform
the individuals or entities referred to in Section 4.1(b) of the obligations
undertaken in this Section 4.1; and
(d) it will notify Buyer promptly if Seller receives any such inquiries or
proposals, or any requests for such information, or if any such negotiations or
discussions are sought to be initiated or continued with it;
provided, however, that nothing contained in this Agreement shall prohibit the
Board of Directors of Seller (and the officers, directors, employees, agents and
financial advisors of Seller acting at the direction of the Board of Directors)
from prior to the Seller Shareholders Meeting (as defined below) furnishing
information to or entering into discussions or negotiations with, any Person
that makes an unsolicited Acquisition Proposal, if, and only to the extent that
(A) the Board of Directors of Seller determines in good faith that such action
is required for the Board of Directors to comply with its duties to stockholders
imposed by law and such proposal is a Superior Acquisition Proposal (as defined
below), (B) prior to furnishing such information to, or entering into
discussions or negotiations with, such Person, Seller provides written notice to
Buyer to the effect that it is furnishing information to, or entering into
discussions with, such Person and (C) subject to any confidentiality agreement
with such Person, Seller keeps Buyer informed of the status (not the terms) of
any such discussions or negotiations (Seller agreeing that it will not enter
into any confidentiality agreement with any Person subsequent to the date hereof
which prohibits Seller from providing such information to Buyer); and (ii) to
the extent applicable, taking and disclosing to the Seller stockholders a
position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange
Act with regard to an Acquisition Proposal; provided, however, that the Board of
Directors of Seller may not approve or recommend an Acquisition Proposal, or
withdraw or modify its approval or recommendation of this Agreement and the
Merger, unless such Acquisition Proposal is a Superior Acquisition Proposal.
Nothing in this Section 4.1 shall (x) permit Seller to terminate this Agreement
(except as specifically provided in Article 7 hereof), (y) permit Seller to
enter into an agreement with respect to an Acquisition Proposal during the term
of this Agreement (other than a confidentiality agreement in customary form
executed as provided above) or (z) affect any other obligation of Seller under
this Agreement; provided, however, that the Board of Directors of Seller may
approve and recommend a Superior Acquisition Proposal and, in connection
therewith, withdraw or modify its approval or recommendation of this
27
<PAGE>
Agreement and the Merger. As used herein, "Superior Acquisition Proposal" means
a bona fide Acquisition Proposal made by a third party which the Board of
Directors of Seller (or a duly constituted committee thereof charged with
considering Acquisition Proposals) determines in good faith (after consultation
with its financial advisor) to be more favorable to Seller's stockholders than
the Merger and which the Board of Directors of Seller (or any such committee)
determines is reasonably capable of being consummated.
4.2 Conduct of Seller's Business Pending Merger. During the period from
the date hereof and continuing through the Effective Time, except as consented
to in writing by Buyer or as contemplated by this Agreement, specifically
including Section 1.7(b), and except as set forth on Section 4.2 of the Seller
Disclosure Letter, Seller shall, and shall cause each of the Seller Subsidiaries
to:
(a) conduct its business only in the usual, regular and ordinary course and
in substantially the same manner as heretofore conducted and take all action
necessary to continue to qualify as a REIT;
(b) use its reasonable efforts to (i) preserve intact its business
(corporate or otherwise) organizations and goodwill; PROVIDED that Seller may
cause Seller General Partner to be converted into a Delaware limited liability
company on or prior to the Closing Date and take such actions to cause the
conversions and liquidations contemplated by Section 6.2(g) to occur, (ii) keep
available the services of its officers and key employees and (iii) keep intact
the relationship with its customers, tenants, suppliers and others having
business dealings with Seller and Seller's Subsidiaries;
(c) confer on a regular basis with one or more representatives of Buyer to
report operational matters of materiality and, subject to Section 4.1, any
proposals to engage in material transactions;
(d) promptly notify Buyer of any material emergency or other material
adverse change in the condition (financial or otherwise), business, properties,
assets, liabilities or the normal course of its businesses or in the operation
of its properties, or of any material governmental complaints, investigations or
hearings (or communications indicating that the same may be contemplated);
(e) promptly deliver to Buyer true and correct copies of any report,
statement or schedule to be filed with the SEC subsequent to the date of this
Agreement and prior to the Closing Date;
(f) maintain its books and records in accordance with GAAP consistently
applied and not change in any material manner any of its methods, principles or
practices of accounting in effect at the Seller Financial Statement Date, except
as may be required by the SEC, applicable law or GAAP;
(g) duly and timely file all material Tax Returns and other documents
required to be filed with federal, state, local and other Tax Authorities,
subject to timely extensions permitted by law, provided Seller notifies Buyer
that it is availing itself of such extensions and provided such extensions do
not adversely affect Seller's status as a qualified REIT under the Code;
(h) not make or rescind any material express or deemed election relative to
Taxes (unless required by law or necessary to preserve Seller's status as a REIT
or the status of any Seller Subsidiary as a partnership for federal income tax
purposes or as a qualified REIT subsidiary under Section 856(i) of the Code, as
the case may be);
(i) not acquire, enter into any option to acquire, or exercise an option or
contract to acquire, additional real property, incur additional indebtedness
except for working capital under its revolving lines of credit, encumber assets
or commence construction of, or enter into any agreement or commitment to
develop or construct, other real estate projects, except with respect to the
construction of the multi-family residential projects described in the Seller
SEC Documents or the Seller Disclosure Letter as being under development in
accordance with the agreements in existence on the date of this Agreement and
previously furnished to Buyer (the "Development Agreements");
28
<PAGE>
(j) not (except as contemplated by this Agreement) amend its certificate of
incorporation or By-laws, or the articles or certificate of incorporation,
bylaws, code of regulations, partnership agreement, operating agreement or joint
venture agreement or comparable charter or organization document of any Seller
Subsidiary;
(k) make no change in the number of its shares of capital stock, membership
interests or units of limited partnership interest (as the case may be) issued
and outstanding or reserved for issuance, other than pursuant to (i) the
exercise of options or other rights disclosed in Section 2.3 of the Seller
Disclosure Letter, (ii) the conversion of Seller Preferred Shares, or (iii) the
conversion or redemption of Seller OP Units pursuant to the Seller Partnership
Agreement for Seller Common Shares or cash, at Seller's option;
(l) except as set forth in Section 4.2(l) of the Seller Disclosure Letter,
grant no options or other rights or commitments relating to its shares of
capital stock, membership interests or units of limited partnership interest or
any security convertible into its shares of capital stock, membership interests
or units of limited partnership interest, or any security the value of which is
measured by shares of capital stock, or any security subordinated to the claim
of its general creditors and, except as contemplated by this Agreement, not
amend or waive any rights under any of the Seller Options;
(m) except as provided in Section 5.9 and in connection with the use of
Seller Common Shares to pay the exercise price or tax withholding in connection
with equity-based employee benefit plans by the participants therein, not (i)
authorize, declare, set aside or pay any dividend or make any other distribution
or payment with respect to any Seller Common Shares, Seller Preferred Shares or
Seller OP Units or (ii) directly or indirectly redeem, purchase or otherwise
acquire any shares of capital stock, membership interests or units of
partnership interest or any option, warrant or right to acquire, or security
convertible into, shares of capital stock, membership interests, or units of
partnership interest, except for (a) redemptions of Seller Common Shares
required under Article V of the Restated Certificate of Incorporation of Seller
in order to preserve the status of Seller as a REIT under the Code or (b)
conversions or redemptions of Seller OP Units, whether or not outstanding on the
date of this Agreement, for cash or Seller Common Shares in accordance with the
terms of the Seller Partnership Agreement;
(n) not sell, lease, mortgage, subject to any material Lien or otherwise
dispose of any of the Seller Properties;
(o) not sell, lease, mortgage, subject to any material Lien or otherwise
dispose of any of its personal property or intangible property, except sales of
equipment which are not material to Seller and its Subsidiaries taken as a whole
which are made in the ordinary course of business;
(p) not make any loans, advances or capital contributions to, or investments
in, any other Person, other than loans, advances and capital contributions to
Seller Subsidiaries in existence on the date hereof;
(q) not pay, discharge or satisfy any claims, liabilities or obligations
(absolute, accrued, asserted or unasserted, contingent or otherwise) which are
material to Seller and its Subsidiaries taken as a whole, other than the
payment, discharge or satisfaction, in the ordinary course of business
consistent with past practice or in accordance with their terms, of liabilities
reflected or reserved against in, or contemplated by, the most recent
consolidated financial statements (or the notes thereto) furnished to Buyer or
incurred in the ordinary course of business consistent with past practice
(collectively, "Ordinary Course Liabilities"), nor fail to pay Ordinary Course
Liabilities as they come due consistent with past practice;
(r) except as provided in Section 4.2(i) above, not enter into any
commitment, contractual obligation or transaction (each, a "Commitment") for the
purchase of any real estate; provided that
29
<PAGE>
expansion or improvements made in the ordinary course of business to existing
real property shall not be considered a purchase of real property;
(s) not guarantee the indebtedness of another Person, enter into any "keep
well" or other agreement to maintain any financial statement condition of
another Person or enter into any arrangement having the economic effect of any
of the foregoing;
(t) not enter into any contractual obligation with any officer, director or
Affiliate of Seller;
(u) not increase any compensation or enter into or amend any employment,
severance or other agreement with any of its officers, directors or employees
earning a base salary of more than $100,000 per annum, other than as required by
any contract or Employee Plan or pursuant to waivers by employees of benefits
under such agreements;
(v) not adopt any new employee benefit plan or amend, terminate or increase
any existing plans or rights, not grant any additional options, warrants, rights
to acquire stock, stock appreciation rights, phantom stock, dividend
equivalents, performance units or performance stock to any officer, employee or
director, or accelerate vesting with respect to any grant of Seller Common
Shares to employees which are subject to any risk of forfeiture, except for
changes which are required by law and changes which are not more favorable to
participants than provisions presently in effect;
(w) not change the ownership of any of its Subsidiaries, except changes
which arise as a result of the conversion of Seller OP Units into Seller Common
Shares or cash;
(x) not accept a promissory note in payment of the exercise price payable
under any option to purchase Seller Common Shares;
(y) not enter into or amend or otherwise modify or waive any material rights
under any agreement or arrangement for the Persons that are executive officers
or directors of Seller or any Seller
Subsidiary;
(z) not directly or indirectly or through a subsidiary, merge or consolidate
with, acquire all or substantially all of the assets of, or acquire the
beneficial ownership of a majority of the outstanding capital stock or a
majority of any other equity interest in, any Person;
(aa) perform all agreements required to be performed by the Seller and its
Subsidiaries (including the Seller General Partner and the Seller Partnership)
under the Partnership Merger Agreement;
(bb) not make or revoke any material tax election or settle or compromise
any material tax liability; and
(cc) not agree, commit or arrange to take any action prohibited under this
Section.
Notwithstanding anything in this Agreement to the contrary, Seller shall
have the right, in accordance (except with respect to timing) with the
applicable provisions of its Restated Certificate of Incorporation, as amended,
to submit to its stockholders a proposal to liquidate the Seller (the
"Liquidation Vote") and to make all required filings with the SEC and take all
such other necessary or appropriate actions in connection therewith.
4.3 Conduct of Parent's and Buyer's Business Pending Merger. Prior to the
Effective Time, except as (i) contemplated by this Agreement, or (ii) consented
to in writing by Seller, Parent shall, and shall cause Buyer to:
(a) use its reasonable efforts to preserve intact its business organizations
and goodwill and keep available the services of its officers and employees;
(b) promptly notify Seller of any material emergency or other material
change in the condition (financial or otherwise), business, properties, assets,
liabilities, prospects or the normal course of its
30
<PAGE>
businesses or in the operation of its properties, or of any material
governmental complaints, investigations or hearings (or communications
indicating that the same may be contemplated);
(c) not amend its certificate of limited partnership or limited partnership
agreement, or the articles or certificate of incorporation, bylaws, code of
regulations, partnership agreement, operating agreement or joint venture
agreement or comparable charter or organization document of any Subsidiary of
the Parent; provided, however, that any such amendment may be made (1) in
connection with the financing of Parent, Buyer and Buyer Operating Partnership
in accordance with the terms of the Equity Commitments and the Financing
Commitments, so long as any such amendment would not reasonably be expected to
materially adversely affect Seller's stockholders, the Seller Unit Holders, the
Merger or the transactions contemplated by the Partnership Merger Agreement or
(2) so long as such amendment would not, under Sections 3.7 or 11.1 of the
limited partnership agreement of Parent, require the consent of any holder of
Class A Preferred Units or Class B Units if such securities were issued and
outstanding at the time of such amendment and the holders of such securities
were then limited partners of the Partnership;
(d) not enter into any Commitment for the acquisition of any interest in
real property if the amount of such Commitment would cause the aggregate amount
of all such Commitments subsequent to the date hereof to exceed $1,000,000
unless such Commitment has been approved by Seller;
(e) not directly or indirectly, through a subsidiary or otherwise, merge or
consolidate with, or acquire all or substantially all of the assets of, or the
beneficial ownership of a majority of the outstanding capital stock or other
equity interests in any Person whose securities are registered under the
Exchange Act unless such transaction has been approved by Seller;
(f) except as contemplated by this Agreement, not issue any Buyer or Buyer
Operating Partnership securities pursuant to a Registration Statement filed with
the SEC relating to the public offering of any Buyer or Buyer Operating
Partnership securities from the date hereof until the date of the Proxy
Statement (as defined in Section 5.1(a)) unless such issuance has been approved
by Seller;
(g) use reasonable best efforts to do all necessary things required to close
the equity funding contemplated by the Equity Commitments and the borrowings
contemplated by the Financing Commitments and to cause such equity funding and
such borrowings to be made available to Parent, Buyer and Buyer Operating
Partnership as provided therein; and
(h) not agree, commit or arrange to take any action prohibited under this
Section.
4.4 Other Actions. Each of Seller on the one hand and Parent and Buyer on
the other hand shall not knowingly take, and shall use commercially reasonable
efforts to cause their Subsidiaries not to take, any action that would result in
(i) any of the representations and warranties of such party (without giving
effect to any "knowledge" qualification) set forth in this Agreement that are
qualified as to materiality becoming untrue, (ii) any of such representations
and warranties (without giving effect to any "knowledge" qualification) that are
not so qualified becoming untrue in any material respect or (iii) except as
contemplated by Section 4.1, any of the conditions to the Merger set forth in
Article 6 not being satisfied.
4.5 Partnership Merger Agreement. Parent shall, and shall cause its
Subsidiaries to, perform all agreements required to be performed by the Parent
and its Subsidiaries (including the Buyer Operating Partnership) under the
Partnership Merger Agreement.
4.6 Private Placement. Parent shall take all actions necessary for Parent
to offer and sell interests in Parent to holders of Seller OP Units in the
manner contemplated by the Partnership Merger Agreement and Section 5.1 hereof
and as shall be required for the offering and sale of such units of limited
partnership interest to be exempt from the registration requirements of the
Securities Act pursuant to Rule 506 of Regulation D.
31
<PAGE>
4.7 Irrevocable Letter of Credit. (a) Parent has delivered to American
Stock Transfer and Trust Company (the "ESCROW AGENT") $29,500,000 (the "CASH
COLLATERAL") in cash to secure the obligation of Parent and Buyer to pay certain
fees and expenses pursuant to Section 7.2 and to be held in accordance with the
terms of an Escrow Agreement dated as of date hereof among the Escrow Agent,
Seller, Seller Partnership and Parent (the "ESCROW AGREEMENT"). At the election
of Parent and if Seller has not given a notice to the Escrow Agent directing the
Escrow Agent to terminate Parent's right to receive any part of the Cash
Collateral, Parent may deliver to the Escrow Agent an irrevocable letter of
credit in the amount of the Cash Collateral, substantially in the form attached
hereto as Exhibit C, with such changes as shall be reasonably satisfactory to
Seller and from a bank reasonably satisfactory to Seller (the "LETTER OF
CREDIT"). Upon delivery of such Letter of Credit and if Seller has not given a
notice to the Escrow Agent directing the Escrow Agent to terminate Parent's
right to receive any part of the Cash Collateral, the full amount of the Cash
Collateral then held by the Escrow Agent shall be immediately returned to Buyer.
Seller shall, simultaneously with delivering any direction to the Escrow Agent
to terminate Parent's right to receive any part of the Cash Collateral as
provided in the Escrow Agreement or to make a draw under the Letter of Credit,
deliver to Parent and Buyer a certificate confirming that Seller is entitled to
make such direction pursuant to Section 7.2 and, if such certification is false
or Seller is not otherwise entitled to make such direction pursuant to Section
7.2, Parent and Buyer shall be entitled to all remedies available at law or in
equity (including recovery of any amounts improperly withdrawn or drawn);
provided, however, that Parent and Buyer shall notify the Seller within 30 days
after receiving such certificate if they wish to assert that Seller is not
entitled to so direct the Escrow Agent and any failure to provide such notice
within such 30 day period shall irrevocably prohibit Parent and Buyer from
maintaining that Seller was not so entitled.
(b) If Parent elects to extend the Closing Date as contemplated under
Section 1.2(b), then on or prior to the Additional Collateral Date (as defined
below), Parent shall increase the Cash Collateral by either delivering an
additional $25,000,000 to the Escrow Agent in cash to be held in accordance with
the terms of the Escrow Agreement or, if Parent has previously delivered a
Letter of Credit to the Escrow Agent as contemplated under Section 4.7(a), by
amending such Letter of Credit to increase the amount available thereunder by an
additional $25,000,000. As used herein, the term "Additional Collateral Date"
shall mean the first business day following the Satisfaction Date; provided,
however, that if the conditions set forth in Sections 6.1 and 6.2 (other than
Sections 6.2(g) and 6.2(i)) are satisfied (or waived by Parent and Buyer), and
if the certificates and other documents required to be delivered pursuant to
Section 6.2 are delivered, in each case as of the Satisfaction Date and at or
prior to 9:30 a.m. on such date, then the term "Additional Collateral Date"
shall mean the Satisfaction Date.
32
<PAGE>
ARTICLE 5
ADDITIONAL COVENANTS
5.1 Preparation of the Proxy Statement; Seller Stockholders Meeting.
(a) The parties shall cooperate and promptly prepare and Seller shall file
with the SEC as soon as practicable a proxy statement with respect to the
meeting of the stockholders of Seller in connection with the Merger (the "Proxy
Statement"). The parties shall cooperate and promptly prepare and the
appropriate party shall file with the SEC as soon as practicable any other
filings required under the Exchange Act ("Additional Filings"), including
without limitation, a Rule 13e-3 Transaction Statement on Schedule 13E-3 with
respect to the Merger to be filed jointly by Seller, Parent and Buyer, together
with any required amendments thereto. The parties shall cooperate and promptly
prepare a Consent Solicitation/Information Statement of Seller Partnership and
Parent for use in connection with the solicitation of consents to the matters
described in the definition of Seller Partner Approval and the offering of units
of limited partnership interest in Parent (the "Consent Solicitation
Statement"). Each of Seller, Seller Partnership, Parent, Buyer and Buyer
Operating Partnership agrees that the information provided by it for inclusion
in the Proxy Statement, the Additional Filings, the Consent Solicitation
Statement and each amendment or supplement thereto, at the time of mailing
thereof and at the time of the meeting of stockholders of Seller and at the time
of the taking of consent in respect of the Seller Partner Approval, will not
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. Parent,
Buyer and Buyer Operating Partnership shall, with respect to the Seller Partner
Approval and the offering of units of limited partnership interest in Parent to
holders of Seller OP Units, comply with Regulation D of the Securities Act, as
applicable. Seller will use its reasonable best efforts, and Parent, Buyer and
Buyer Operating Partnership will cooperate with Seller to (i) file a preliminary
Proxy Statement with the SEC and (ii) cause the Proxy Statement to be mailed to
Seller's stockholders, in each case, as promptly as practicable (including
clearing the Proxy Statement with the SEC). Seller will use its reasonable best
efforts, and Parent, Buyer and Buyer Operating Partnership will cooperate with
Seller, to cause the Consent Solicitation Statement to be mailed to the Seller
Unit Holders as promptly as practicable after the SEC has cleared the Proxy
Statement. Seller will notify Buyer promptly of the receipt of any comments from
the SEC and of any request by the SEC for amendments or supplements to the Proxy
Statement or the Additional Filings or for additional information and will
supply Buyer with copies of all correspondence between such party or any of its
representatives and the SEC, with respect to the Proxy Statement or the
Additional Filings. The parties shall cooperate to cause the Proxy Statement,
the Consent Solicitation Statement and any Additional Filings to comply in all
material respects with all applicable requirements of law. Whenever any event
occurs which is required to be set forth in an amendment or supplement to the
Proxy Statement, the Additional Filings or the Consent Solicitation Statement,
Seller on the one hand, and Parent and Buyer on the other hand, shall promptly
inform the other of such occurrence and cooperate in filing with the SEC and/or
mailing to the stockholders of Seller or holders of Seller OP Units, as
applicable, such amendment or supplement to the Proxy Statement or the Consent
Solicitation Statement.
(b) It shall be a condition to the mailing of the Proxy Statement and the
Consent Solicitation Statement that if they so request, Buyer and Buyer
Operating Partnership shall have received a "comfort" letter or an "agreed upon
procedures" letter from PricewaterhouseCoopers LLP, independent public
accountants for Seller and Seller Partnership, of the kind contemplated by the
Statement of Auditing Standards with respect to Letters to Underwriters
promulgated by the American Institute of Certified Public Accountants (the
"AICPA Statement"), dated as of the date on which the Proxy Statement is to be
mailed to the stockholders of Seller, addressed to Parent, Buyer and Buyer
Operating Partnership, in form and substance reasonably satisfactory to Buyer
and Buyer Operating
33
<PAGE>
Partnership, concerning the procedures undertaken by PricewaterhouseCoopers LLP
with respect to the financial statements and information of Seller, Seller
Partnership and their Subsidiaries contained in the Proxy Statement and the
other matters contemplated by the AICPA Statement and otherwise customary in
scope and substance for letters delivered by independent public accountants in
connection with transactions such as those contemplated by this Agreement.
(c) Seller will, as soon as practicable following the date of this Agreement
duly call, give notice of, convene and hold a meeting of its stockholders, such
meeting to be held no sooner than 20 business days nor later than 45 days
following the date the Proxy Statement is mailed to the stockholders of Seller
(the "Seller Shareholders Meeting") for the purpose of obtaining the Seller
Shareholder Approval. Seller shall be required to hold the Seller Shareholders
Meeting, regardless of whether the Board of Directors of Seller has withdrawn,
amended or modified its recommendation that its stockholders adopt this
Agreement and approve the Merger, unless this Agreement has been terminated
pursuant to the provisions of Section 7.1. Seller will, through its Board of
Directors, recommend that its stockholders adopt this Agreement and approve the
transactions contemplated hereby, including the Merger and the Alternative
Merger; provided, that prior to the Seller Shareholders Meeting, such
recommendation may be withdrawn, modified or amended if Seller shall have
received a Superior Acquisition Proposal, but only to the extent expressly
permitted under Section 4.1.
(d) If on the date for the Seller Shareholders Meeting established pursuant
to Section 5.1(c) of this Agreement, Seller has not received duly executed
proxies which, when added to the number of votes represented in person at the
meeting by Persons who intend to vote to adopt this Agreement, will constitute a
sufficient number of votes to adopt this Agreement (but less than a majority of
the outstanding Seller Common Shares (including the Seller Preferred Shares
voting with the Seller Common Shares on an as-converted basis) have indicated
their intention to vote against, or have submitted duly executed proxies voting
against, the adoption of this Agreement), then Seller shall recommend the
adjournment of its stockholders meeting until the date ten (10) days after the
originally scheduled date of the stockholders meeting.
5.2 Access to Information: Confidentiality. Subject to the requirements of
confidentiality agreements with third parties, each of Seller, Parent and Buyer
shall, and shall cause each of its Subsidiaries to, afford to the other party
and to the officers, employees, accountants, counsel, financial advisors and
other representatives of such other party, reasonable access during normal
business hours prior to the Effective Time to all their respective properties,
books, contracts, commitments, personnel and records and, during such period,
each of Seller, Parent and Buyer shall, and shall cause each of its Subsidiaries
to, furnish promptly to the other party all other information concerning its
business, properties and personnel as such other party may reasonably request.
Parent and Buyer shall have the right to conduct non-intrusive environmental and
engineering inspections at the Seller Properties; provided that in no event
shall Parent or Buyer have the right to conduct so-called "Phase II"
environmental tests. Notwithstanding anything in this Section 5.2 to the
contrary, all of Parent's and Buyer's activities pursuant to this Section 5.2
must be conducted in a manner that does not unreasonably interfere with the
ongoing operations of Seller and Seller Subsidiaries.
5.3 Reasonable Best Efforts; Notification.
(a) Subject to the terms and conditions herein provided, Seller, Parent and
Buyer shall: (i) use all reasonable best efforts to cooperate with one another
in (A) determining which filings are required to be made prior to the Effective
Time with, and which consents, approvals, permits or authorizations are required
to be obtained prior to the Effective Time from, governmental or regulatory
authorities of the United States, the several states and foreign jurisdictions
and any third parties in connection with the execution and delivery of this
Agreement, and the consummation of the transactions contemplated hereby,
including without limitation any required filings and consents under the HSR
Act, and
34
<PAGE>
(B) timely making all such filings and timely seeking all such consents,
approvals, permits and authorizations; (ii) use all reasonable best efforts
(other than the payment of money) to obtain in writing any consents required
from third parties to effectuate the Merger and avoid defaults or acceleration
of the rights of third parties under contracts with Seller or Seller
Subsidiaries as a result of the consummation of the Merger, such consents to be
in form reasonably satisfactory to Seller and Buyer; and (iii) use all
reasonable best efforts to take, or cause to be taken, all other action and do,
or cause to be done, all other things necessary, proper or appropriate to
consummate and make effective the transactions contemplated by this Agreement.
In furtherance thereof, Seller agrees to vote in favor of the transactions
contemplated by the Partnership Merger Agreement in its capacity as a limited
partner of the Seller Partnership, and to cause the Seller General Partner to so
vote in its capacity as a general partner of the Seller Partnership. If at any
time after the Effective Time any further action is necessary or desirable to
carry out the purpose of this Agreement, Parent and the Surviving Company shall
take all such necessary action.
(b) Seller shall give prompt notice to Parent and Buyer, and Parent and
Buyer shall give prompt notice to Seller, (i) if any representation or warranty
made by it or them contained in this Agreement that is qualified as to
materiality becomes untrue or inaccurate in any respect or any such
representation or warranty that is not so qualified becomes untrue or inaccurate
in any material respect or (ii) of the failure by it or them to comply with or
satisfy in any material respect any covenant, condition or agreement to be
complied with or satisfied by it under this Agreement; provided, however, that
no such notification shall affect the representations, warranties, covenants or
agreements of the parties or the conditions to the obligations of the parties
under this Agreement.
5.4 Tax Treatment. The Surviving Operating Partnership will use the
"traditional method" under Treasury Regulations Section 1.704-3(b) for purposes
of making allocations under Section 704(c) of the Code with respect to the
properties of or interests in the Seller Partnership as of the Effective Time.
The Surviving Company shall prepare and file all Tax Returns of Seller and
Seller Subsidiaries due after the Effective Time.
5.5 Public Announcements. Parent, Buyer and Seller will consult with each
other before issuing, and provide each other the opportunity to review and
comment upon, any press release or other written public statements with respect
to the transactions contemplated by this Agreement, and shall not issue any such
press release or make any such written public statement prior to such
consultation, except as may be required by applicable law, court process or by
obligations pursuant to any listing agreement with any national securities
exchange. The parties agree that the initial press release to be issued with
respect to the transactions contemplated by this Agreement will be in the form
agreed to by the parties hereto prior to the execution of this Agreement.
5.6 Transfer Taxes. Buyer and Seller shall cooperate in the preparation,
execution and filing of all returns, questionnaires, applications or other
documents regarding any real property transfer, sales, use, transfer, value
added, stock transfer and stamp taxes, any transfer, recording, registration and
other fees and any similar taxes which become payable in connection with the
transactions contemplated by this Agreement (together with any related
interests, penalties or additions to tax, "Transfer Taxes"). From and after the
Effective Time, the Surviving Company shall, or shall cause the Surviving
Operating Partnership, as appropriate, to pay or cause to be paid, without
deduction or withholding from any amounts payable to the holders of Seller
Common Shares or Seller OP Units, all Transfer Taxes.
5.7 Benefit Plans. After the Effective Time, all employees of Seller who
are employed by the Surviving Company shall, at the option of the Surviving
Company, either continue to be eligible to participate in an "employee benefit
plan," as defined in Section 3(3) of ERISA, of Seller which is, at the option of
the Surviving Company, continued by the Surviving Company, or alternatively
shall be eligible to participate in any "employee benefit plan," as defined in
Section 3(3) of ERISA, established,
35
<PAGE>
sponsored or maintained by the Surviving Company after the Effective Time. With
respect to each such employee benefit plan not formerly maintained by Seller,
service with Seller or any Seller Subsidiary (as applicable) shall be included
for purposes of determining eligibility to participate, vesting (if applicable)
and entitlement to benefits and all pre-existing condition exclusions shall be
waived and expenses incurred by any employee for deductibles and copayments in
the portion of the year prior to the date employee first becomes a participant
in such employee benefit plan shall be credited to the benefit of such employee
under such employee benefit plan for the year in which the employee's
participation commences.
5.8 Indemnification.
(a) From and after the Effective Time, the Surviving Company shall provide
exculpation and indemnification for each Person who is now or has been at any
time prior to the date hereof or who becomes prior to the Effective Time, an
officer, employee or director of Seller or any Seller Subsidiary (the
"Indemnified Parties") which is the same as the exculpation and indemnification
provided to the Indemnified Parties by Seller and the Seller Subsidiaries
immediately prior to the Effective Time in their respective certificate of
incorporation and Bylaws or other organizational documents, as in effect on the
date hereof; provided, that such exculpation and indemnification covers actions
on or prior to the Effective Time, including, without limitation, all
transactions contemplated by this Agreement.
(b) In addition to the rights provided in Section 5.8(a) above, in the event
of any threatened or actual claim, action, suit, proceeding or investigation,
whether civil, criminal or administrative, including without limitation, any
action by or on behalf of any or all security holders of Seller, Parent or
Buyer, or any Subsidiary of the Seller or Parent, or by or in the right of
Seller, Parent or Buyer, or any Subsidiary of the Seller or Parent, or any
claim, action, suit, proceeding or investigation (collectively, "Claims") in
which any Indemnified Party is, or is threatened to be, made a party based in
whole or in part on, or arising in whole or in part out of, or pertaining to (i)
the fact that he is or was an officer, employee or director of Seller or any of
the Seller Subsidiaries or any action or omission or alleged action or omission
by such Person in his capacity as an officer, employee or director, or (ii) this
Agreement or the Partnership Merger Agreement or the transactions contemplated
by this Agreement or the Partnership Merger Agreement, whether in any case
asserted or arising before or after the Effective Time, Parent and the Surviving
Company (the "Indemnifying Parties") shall from and after the Effective Time
jointly and severally indemnify and hold harmless the Indemnified Parties from
and against any losses, claims, liabilities, expenses (including reasonable
attorneys' fees and expenses), judgments, fines or amounts paid in settlement
arising out of or relating to any such Claims. Parent, the Surviving Company and
the Indemnified Parties hereby agree to use their reasonable best efforts to
cooperate in the defense of such Claims. In connection with any such Claim, the
Indemnified Parties shall have the right to select and retain one counsel, at
the cost of the Indemnifying Parties, subject to the consent of the Indemnifying
Parties (which consent shall not be unreasonably withheld or delayed). In
addition, after the Effective Time, in the event of any such threatened or
actual Claim, the Indemnifying Parties shall promptly pay and advance reasonable
expenses and costs incurred by each Indemnified Person as they become due and
payable in advance of the final disposition of the Claim to the fullest extent
and in the manner permitted by law. Notwithstanding the foregoing, the
Indemnifying Parties shall not be obligated to advance any expenses or costs
prior to receipt of an undertaking by or on behalf of the Indemnified Party,
such undertaking to be accepted without regard to the creditworthiness of the
Indemnified Party, to repay any expenses advanced if it shall ultimately be
determined that the Indemnified Party is not entitled to be indemnified against
such expense. Notwithstanding anything to the contrary set forth in this
Agreement, the Indemnifying Parties (i) shall not be liable for any settlement
effected without their prior written consent (which consent shall not be
unreasonably withheld or delayed), and (ii) shall not have any obligation
hereunder to any Indemnified Party to the extent that a court of competent
jurisdiction shall determine in a final and non-appealable order that such
indemnification is prohibited by applicable law. In the event of a final and
36
<PAGE>
non-appealable determination by a court that any payment of expenses is
prohibited by applicable law, the Indemnified Party shall promptly refund to the
Indemnifying Parties the amount of all such expenses theretofore advanced
pursuant hereto. Any Indemnified Party wishing to claim indemnification under
this Section 5.8, upon learning of any such Claim, shall promptly notify the
Indemnifying Parties of such Claim and the relevant facts and circumstances with
respect thereto; provided however, that the failure to provide such notice shall
not affect the obligations of the Indemnifying Parties except to the extent such
failure to notify materially prejudices the Indemnifying Parties' ability to
defend such Claim; and provided, further, however, that no Indemnified Party
shall be obligated to provide any notification pursuant to this Section 5.8(b)
prior to the Effective Time.
(c) At or prior to the Effective Time, Buyer shall purchase directors' and
officers' liability insurance policy coverage for Seller's and each Seller
Subsidiaries' directors and officers for a period of six years which will
provide the directors and officers with coverage on substantially similar terms
as currently provided by Seller and the Seller Subsidiaries to such directors
and officers. At or prior to the Effective Time, Seller shall have the right to
reasonably review and approve any such policy, which approval shall not be
unreasonably withheld.
(d) This Section 5.8 is intended for the irrevocable benefit of, and to
grant third party rights to, the Indemnified Parties and their successors,
assigns and heirs and shall be binding on all successors and assigns of Parent
and Buyer, including without limitation the Surviving Company. Each of the
Indemnified Parties shall be entitled to enforce the covenants contained in this
Section 5.8 and Parent and Buyer acknowledge and agree that each Indemnified
Party would suffer irreparable harm and that no adequate remedy at law exists
for a breach of such covenants and such Indemnified Party shall be entitled to
injunctive relief and specific performance in the event of any breach of any
provision in this Section 5.8.
(e) In the event that the Surviving Company or any of its respective
successors or assigns (i) consolidates with or merges into any other Person and
shall not be the continuing or surviving corporation or entity of such
consolidation or merger or (ii) transfers all or substantially all of its
properties and assets to any Person, then, and in each such case, the successors
and assigns of such entity shall assume the obligations set forth in this
Section 5.8, which obligations are expressly intended to be for the irrevocable
benefit of, and shall be enforceable by, each director and officer covered
hereby.
Parent guarantees, unconditionally and absolutely, the performance of
Surviving Company's and Buyer's obligations under this Section 5.8.
5.9 Declaration of Dividends and Distributions. From and after the date of
this Agreement, Seller shall not make any dividend or distribution to its
stockholders without the prior written consent of Buyer; provided, however, the
written consent of Buyer shall not be required for the authorization and payment
of quarterly distributions (i) with respect to the Seller Common Shares, (a) for
the dividend for the second and third quarters of 1999 (i.e., $.25 per share
with a record date of May 1, 1999 and August 1, 1999) and (b) as permitted under
Section 1.2(g), and (ii) with respect to the Seller Preferred Shares for the
dividend for the second quarter of 1999 and for each quarterly dividend
thereafter in the amounts provided for in the Certificate of Designation in
respect of the Seller Preferred Shares. From and after the date of this
Agreement, Seller Partnership shall not make any distribution to the holders of
Seller OP Units except a distribution per Seller OP Unit in the same amount as a
dividend per Seller Common Share permitted pursuant to this Section 5.9
(including without limitation pursuant to the following paragraph), with the
same record and payment dates as such dividend on the Seller Common Shares. The
foregoing restrictions shall not apply, however, to the extent a distribution by
Seller is necessary for Seller to maintain REIT status or to prevent Seller from
having to pay federal income tax; provided that in the event of such a
distribution, the aggregate cash consideration payable to holders of Seller
Common Shares in the Merger shall be reduced by the
37
<PAGE>
aggregate amount of such distribution, and the Common Merger Consideration per
share shall be reduced accordingly.
Notwithstanding the foregoing, if the Effective Time occurs on a date after
November 1, 1999, the Seller may declare or establish a record date and set
aside funds for payment of a dividend for the period commencing November 1, 1999
and ending on the date on which the Effective Time occurs (the "Partial
Period"). The amount of the dividend per Seller Common Share for such Partial
Period shall equal a fraction, (I) the numerator of which equals (a) $.25, times
(b) the number of days comprising such Partial Period, and (II) the denominator
of which is 90.
5.10 Resignations. On the Closing Date, Seller shall use its best efforts
to cause the directors and officers of Seller or any of the Seller Subsidiaries
to submit their resignations from such positions as may be requested by Buyer,
effective immediately after the Effective Time; provided, however, that by
resigning, such officers and directors will not lose the benefit of any "change
of control" provisions of any employment agreement or other instruments to which
they would otherwise be entitled.
5.11 Outside Property Management Agreements. Seller will not, and will not
permit any of its Subsidiaries to, amend the Outside Property Management
Agreements. Seller will not, and will not permit any of its Subsidiaries to,
renew any Outside Property Management Agreement except as approved by Buyer,
which approval shall not be unreasonably withheld or delayed.
5.12 Stockholder Claims. Seller shall not settle or compromise for an
amount in excess of $10,000,000 any claim relating to the Transactions brought
by any current, former or purported holder of any securities of Seller or the
Seller Partnership without the prior written consent of Buyer, which consent
will not be unreasonably withheld.
5.13 Cooperation with Proposed Financings and Asset Sales. At the request
of the Buyer, the Seller will, at the Buyer's expense, reasonably cooperate with
the Buyer in connection with the proposed financing of the Transactions by the
Parent and its Subsidiaries or proposed post-closing sales of the Seller
Properties, provided that such requested actions do not unreasonably interfere
with the ongoing operations of Seller and Seller Subsidiaries.
38
<PAGE>
ARTICLE 6
CONDITIONS
6.1 Conditions to Each Party's Obligation to Effect the Merger. The
obligations of each party to effect the Merger and to consummate the other
transactions contemplated by this Agreement to occur on the Closing Date shall
be subject to the fulfillment at or prior to the Closing Date of the following
conditions:
(a) Stockholder Approvals. This Agreement shall have been adopted by the
Seller Shareholder Approval.
(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, the Partnership Merger or any of the other
transactions contemplated hereby shall be in effect.
(c) HSR. All applicable waiting periods (and any extensions thereof) under
the HSR Act shall have expired or otherwise been terminated.
6.2 Conditions to Obligations of Parent and Buyer. The obligations of
Parent and Buyer to effect the Merger and to consummate the other transactions
contemplated to occur on the Closing Date are further subject to the following
conditions, any one or more of which may be waived by Buyer:
(a) Representations and Warranties. The representations and warranties of
Seller set forth in this Agreement shall be true and correct in all material
respects (except for the representations set forth in Section 2.3 or
representations having a materiality or Seller Material Adverse Effect
qualification, which shall be correct in all respects) as of the date of this
Agreement and as of the Closing Date, as though made on and as of the Closing
Date, except to the extent the representation or warranty is expressly limited
by its terms to another date, in which case such representation or warranty
shall be true and correct in all material respects (except for representations
having a materiality or Seller Material Adverse Effect qualification, which
shall be correct in all respects) only as of such specific date, and Parent and
Buyer shall have received a certificate (which certificate may be qualified by
Knowledge to the same extent as the representations and warranties of Seller
contained herein are so qualified) signed on behalf of Seller by the chief
executive officer or the chief financial officer of Seller, in such capacity, to
such effect.
(b) Performance of Obligations of Seller. Seller shall have performed in
all material respects all obligations required to be performed by it under this
Agreement at or prior to the Effective Time, and Parent and Buyer shall have
received a certificate signed on behalf of Seller by the chief executive officer
or the chief operating officer of Seller, in such capacity, to such effect.
(c) Material Adverse Change. Since the date of this Agreement through and
including the Satisfaction Date, (i) there shall have been no Seller Material
Adverse Change and (ii) Parent and Buyer shall have received a certificate of
the chief executive officer or chief financial officer of Seller, in such
capacity, certifying to such effect. For purposes of this Section 6.2(c), it is
understood and agreed that a Seller Material Adverse Change shall be deemed to
have occurred, without regard to any certificate provided pursuant to clause
(ii) of the first sentence of this Section 6.2(c), if as a result of a "change
of law" after the date hereof there shall exist at the Effective Time a material
increase in the risk that the Seller would not qualify (at or prior to the
Effective Time) as a REIT. For this purpose, the term "change in law" shall mean
any amendment to or change (including any announced prospective change having a
proposed effective date at or prior to the Effective Time) in the federal tax
laws of the United States, including any statute, regulation or proposed
regulation or any official administrative pronouncement (consisting of the
issuance or revocation of any revenue ruling, revenue procedure, notice, private
letter ruling or technical advice memorandum) or any judicial decision
39
<PAGE>
interpreting such federal tax laws (whether or not such pronouncement or
decision is issued to, or in connection with, a proceeding involving the Seller
or a Seller Subsidiary or is subject to review or appeal).
(d) Tax Opinions Relating to REIT Status of Seller And Partnership Status
of Seller Partnership. Parent and Buyer shall have received an opinion of Hale
and Dorr LLP, or other counsel to Seller reasonably acceptable to Parent and
Buyer, and of Baker & Hostetler LLP, each dated as of the Effective Time, in the
form attached hereto as Exhibit D. Each of such opinions may be based on
certificates in the form of Section 6.2(d) of the Seller Disclosure Letter.
(e) Consents. All consents and waivers (including, without limitation,
waivers of rights of first refusal) from third parties necessary in connection
with the consummation of the transactions contemplated by this Agreement
(including the Merger) shall have been obtained and not subsequently been
revoked, as of the Satisfaction Date other than such consents and waivers from
third parties, which, if not obtained, would not result, individually or in the
aggregate, in a Buyer Material Adverse Effect or a Seller Material Adverse
Effect; provided, however, that the failure to obtain any consent or waiver in
connection with any instrument, obligation or matter set forth in the Seller
Disclosure Letter shall not constitute a failure of the condition set forth in
this Section 6.2(e).
(f) [Intentionally omitted].
(g) Conversion of Corporate Subsidiaries. Seller shall have, at or prior
to the Effective Time, either converted each of its direct or indirect corporate
Subsidiaries into Delaware limited liability companies or liquidated such
subsidiaries into Seller; provided that this condition shall not apply to
corporations that are Subsidiaries of Seller and that serve as general partners
of limited partnerships if the organizational documents of such corporations or
limited partnerships would, as of the date hereof, prevent such conversions or
liquidations; provided that no consequence of Seller's performance of this
condition will be taken into account in determining the satisfaction of any
other conditions to Parent's and Buyer's obligations to effect the Merger.
(h) Partnership Merger Conditions. All conditions set forth in Sections
5.1(c), 5.1(d) and 5.3 of the Partnership Merger Agreement shall have been
waived or satisfied as of the Satisfaction Date in accordance with the terms of
the Partnership Merger Agreement.
(i) Partnership Merger. The Partnership Merger shall have been
consummated.
Notwithstanding anything to the contrary in this Agreement, none of the
initiation, threat or existence of any legal action of any kind with respect to
this Agreement or the Partnership Merger Agreement or any transaction
contemplated hereby or thereby, including without limitation any action
initiated, threatened or maintained by any stockholder of Seller or any partner
in the Seller Partnership, whether alleging rights with respect to Dissenting
Shares, claims under any Federal or state securities law, contract or tort
claims, claims for breach of fiduciary duty or otherwise, will constitute a
failure of the conditions set forth in Section 6.2(a), 6.2(b), 6.2(c), 6.2(e),
6.2(h), 6.3(a), 6.3(b), 6.3(c), 6.3(e) or 6.3(f) (and no such action shall cause
the chief executive officer or chief financial officer of Seller or of Parent or
Buyer to be unable to deliver a certificate attesting to compliance with such
conditions) unless that action has resulted in the granting of injunctive relief
that prevents the consummation of the Merger and the other transactions
contemplated hereby or thereby, and such injunctive relief has not been
dissolved or vacated.
6.3 Conditions to Obligations of Seller. The obligation of Seller to
effect the Merger and to consummate the other transactions contemplated to occur
on the Closing Date is further subject to the following conditions, any one or
more of which may be waived by Seller:
(a) Representations and Warranties. The representations and warranties of
Parent and Buyer set forth in this Agreement shall be true and correct in all
material respects (except for representations having a materiality or Parent
Material Adverse Effect or Buyer Material Adverse Effect qualification,
40
<PAGE>
which shall be correct in all respects) as of the date of this Agreement and as
of the Closing Date, as though made on and as of the Closing Date, except to the
extent the representation or warranty is expressly limited by its terms to
another date, in which case such representation or warranty shall be true and
correct in all material respects (except for representations having a
materiality or Parent Material Adverse Effect or Buyer Material Adverse Effect
qualification, which shall be correct in all respects) only as of such specific
date, and Seller shall have received a certificate (which certificate may be
qualified by Knowledge to the same extent as the representations and warranties
of Parent and Buyer contained herein are so qualified) signed on behalf of
Parent and Buyer by the chief executive officer or the chief financial officer
of such party, in such capacity, to such effect.
(b) Performance of Obligations of Buyer. Each of Parent and Buyer shall
have performed in all material respects all obligations required to be performed
by it under this Agreement at or prior to the Effective Time, and Seller shall
have received a certificate of Parent and Buyer signed on behalf of Buyer by the
chief executive officer or the chief financial officer of Parent and Buyer, in
such capacity, to such effect.
(c) Material Adverse Change. Since the date of this Agreement, there shall
have been no change in the business, financial condition or results of
operations of Parent and its Subsidiaries, taken as a whole, or of Buyer and the
Buyer Subsidiaries, taken as a whole, that has had or would reasonably be
expected to have a material adverse effect on the ability of Parent, Buyer or
Buyer Operating Partnership to consummate the transactions contemplated by this
Agreement and the Partnership Merger Agreement, and Seller shall have received a
certificate of the chief executive officer or chief financial officer of Parent
and Buyer, in such capacity, certifying to such effect.
(d) Tax Opinion Relating to the Partnership Merger. Seller shall have
received an opinion dated the Closing Date from Paul, Weiss, Rifkind, Wharton &
Garrison, special counsel to the Buyer, based upon such certificates and letters
dated the Closing Date as are acceptable to such special counsel, to the effect
that, for federal income tax purposes, Seller Unit Holders (other than persons
that are not United States persons within the meaning of Section 7701(a)(30) of
the Code) who elect to exchange all Seller OP Units held by them for Class A
Preferred Units or Class B Units in Parent pursuant to the Partnership Merger
shall recognize no income, gain or loss upon the exchange. For purposes of such
opinion, counsel may assume that each Seller Unit Holder shall enter into a
guarantee of indebtedness of Parent in accordance with Section 4.8 of the
partnership agreement of Parent in an amount equal to such Seller Unit Holder's
negative tax capital account and that such guarantee shall be effective to cause
the Seller Unit Holder to bear the "economic risk of loss" (within the meaning
of Treasury Regulation Section 1.752-2) associated with the portion of the
indebtedness so guaranteed.
(e) Consents. All consents and waivers (including, without limitation,
waivers of rights of first refusal) from third parties necessary in connection
with the consummation of the transactions contemplated hereby (including the
Merger) shall have been obtained, other than such consents and waivers from
third parties, which, if not obtained, would not result, individually or in the
aggregate, in a Parent Material Adverse Effect, a Buyer Material Adverse Effect
or a Seller Material Adverse Effect; provided, however, that the failure to
obtain any consent or waiver in connection with any instrument, obligation or
matter set forth in the Seller Disclosure Letter shall not constitute a failure
of the condition set forth in this Section 6.3(e).
(f) Partnership Merger. All conditions set forth in Sections 5.1(c),
5.1(d) and 5.2 of the Partnership Merger Agreement shall have been waived or
satisfied in accordance with the terms of the Partnership Merger Agreement.
(g) Solvency Opinion. Seller and the Seller Partnership shall have
received an opinion, by a reputable expert firm selected by Parent and
reasonably acceptable to the Seller, in a customary form for transactions of
this type as to the solvency and adequate capitalization of the Seller and the
Seller Partnership immediately before and of the Surviving Company and the
Surviving Operating Partnership immediately after giving effect to the
Transactions, which opinion shall be reasonably satisfactory to the Seller.
41
<PAGE>
ARTICLE 7
TERMINATION, AMENDMENT AND WAIVER
7.1 Termination. This Agreement may be terminated at any time prior to the
Effective Time, whether before or after the Seller Shareholder Approvals are
obtained:
(a) by mutual written consent duly authorized by Parent and the Board of
Directors of Seller;
(b) by Parent or Buyer, upon a breach of any representation, warranty,
covenant, obligation or agreement on the part of Seller set forth in this
Agreement, in any case such that the conditions set forth in Section 6.2(a) or
Section 6.2(b), as the case may be, are not satisfied or would be incapable of
being satisfied within 30 days after the giving of written notice to Seller;
(c) by Seller, upon a breach of any representation, warranty, covenant
obligation or agreement on the part of Parent or Buyer set forth in this
Agreement, in either case such that the conditions set forth in Section 6.3(a)
or Section 6.3(b), as the case may be, are not satisfied or would be incapable
of being satisfied within 30 days after the giving of written notice to Parent
or Buyer;
(d) by Parent, Buyer or Seller, if any judgment, injunction, order, decree
or action by any Governmental Entity of competent authority preventing the
consummation of the Merger shall have become final and nonappealable (an
"Injunction");
(e) by Parent, Buyer or Seller, if the Merger shall not have been
consummated on or before December 31, 1999; provided, however, that a party may
not terminate pursuant to this clause (e) if the terminating party shall have
breached in any material respect its representations or warranties or its
obligations under this Agreement in any manner that shall have proximately
contributed to the occurrence of the failure referred to in this clause;
(f) by either Seller (unless Seller is in breach of its obligations under
Section 5.1) or Parent or Buyer if, upon a vote at a duly held Seller
Shareholders Meeting or any adjournment thereof, Seller Shareholder Approvals
shall not have been obtained as contemplated by Section 5.1;
(g) by Seller, prior to the Seller Shareholders Meeting, if the Board of
Directors of Seller shall have withdrawn or modified its approval or
recommendation of the Merger or this Agreement in connection with, or approved
or recommended, a Superior Acquisition Proposal; provided, however, that no
termination shall be effective pursuant to this Section 7.1(g) under
circumstances in which a Break-Up Fee (as defined in Section 7.2(a)) is payable
pursuant to Section 7.2(a)(vi), unless within 15 days after such termination,
such Break-Up Fee is paid in full by the Seller and Seller Partnership in
accordance with Section 7.2(a)(vi);
(h) by Parent or Buyer if (i) prior to the Seller Shareholders Meeting, the
Board of Directors of Seller shall have withdrawn or modified in any manner
adverse to Buyer its approval or recommendation of the Merger or this Agreement,
or approved or recommended any Acquisition Proposal; or (ii) Seller shall have
entered into a definitive agreement with respect to any Acquisition Proposal;
(i) by Seller, if Buyer has not closed the equity funding contemplated by
the Equity Commitments and the borrowings contemplated by the Financing
Commitments (x) on or prior to the Satisfaction Date or (y) on or prior to
December 29, 1999, if (1) Parent elects to extend the Closing Date as
contemplated by Section 1.2(b), (2) the conditions set forth in Section 6.1(b)
shall have been satisfied and (3) Seller shall have delivered a written notice
to Parent and Buyer certifying its ability to satisfy the conditions set forth
in Section 6.2(g);
(j) by either Seller or Parent or Buyer, if the stockholders of Seller adopt
the Liquidation Vote; or
(k) by Parent or Buyer, if an Acquisition Proposal that is publicly
announced shall have been commenced or communicated in writing to Seller and
contains a proposal as to price and (i) Seller shall not have rejected such
proposal within ten business days after the date of the receipt thereof by
42
<PAGE>
Seller or after the date of its existence first becomes publicly announced, if
sooner, or (ii) Seller shall have failed to confirm its recommendation described
in Section 2.25 within ten business days after being requested by Buyer to do
so.
7.2 Certain Fees and Expenses.
(a) If this Agreement shall be terminated:
(i) pursuant to Section 7.1(b), and the breach by Seller was willful,
then Seller and Seller Partnership will pay Parent an aggregate amount equal
to the Break-Up Fee (defined below) plus the lesser of $10,500,000 and the
Break-Up Expenses (defined below),
(ii) pursuant to Section 7.1(b), and the breach by Seller was not
willful, then Seller and Seller Partnership will pay Parent an aggregate
amount equal to the lesser of $15,000,000 and the Break-Up Expenses
(provided that, in the case of a termination by Buyer pursuant to Section
7.1(b) on the basis of a breach of the representation in Section 2.10(b),
Buyer shall not be entitled to such amount),
(iii) pursuant to Section 7.1(c), and the breach by Parent or Buyer was
willful, then Parent and Buyer will pay Seller an aggregate amount equal to
the Break-Up Fee plus the lesser of $4,500,000 and the Break-Up Expenses,
(iv) pursuant to Section 7.1(c), and the breach by Parent or Buyer was
not willful, then Parent and Buyer will pay Seller an aggregate amount equal
to the lesser of $4,500,000 and the Break-Up Expenses,
(v) pursuant to Section 7.1(f), then Seller and Seller Partnership will
pay Parent an aggregate amount equal to the lesser of $15,000,000 and the
Break-Up Expenses,
(vi) pursuant to Section 7.1(g), 7.1(h) or 7.1(k), then Seller and
Seller Partnership will pay Parent an aggregate amount equal to the Break-Up
Fee plus the lesser of $10,500,000 and the Break-Up Expenses,
(vii) pursuant to Section 7.1(i), then Parent and Buyer will pay Seller
an aggregate amount equal to the Break-Up Fee plus the lesser of $4,500,000
and the Break-Up Expenses,
(viii) pursuant to Section 7.1(j), then Seller and Seller Partnership
will pay Parent an aggregate amount equal to the lesser of $10,500,000 and
the Break-Up Expenses; and
(ix) pursuant to Section 7.1(d), and the subject of the Injunction (as
defined in Section 7.1(d)) is a stockholder claim that was the subject of a
bona fide settlement proposal with respect to which Buyer withheld its
consent after Seller's request for same pursuant to Section 5.12, then
Parent and Buyer will pay Seller an aggregate amount equal to the lesser of
$4,500,000 and the Break-Up Expenses.
Notwithstanding anything in this Agreement to the contrary, the right of a
party to receive payment of the Break-Up Fee, Break-Up Expenses or other amounts
in accordance with this Section 7.2(a) shall be the exclusive remedy of such
party for the loss suffered by such party as a result of the failure of the
Merger and the Partnership Merger to be consummated, and no party shall have any
other liability to any other party after the payment of the Break-Up Fee,
Break-Up Expenses or other amounts (as applicable). The Break-Up Fee, Break-Up
Expenses or other amounts payable by Seller and Seller Partnership in accordance
with this Section 7.2(a) shall be paid by Seller and Seller Partnership to
Buyer, in immediately available funds within fifteen (15) days after the date
the event giving rise to the obligation to make such payment occurred. Except as
provided in Section 7.2(b), the Break-Up Fee, the Break-Up Expenses or other
amounts payable by Parent and Buyer to Seller in accordance with this Section
7.2(a) shall be paid by Parent or Buyer to Seller, in immediately available
funds within fifteen (15) days after the day the event giving rise to the
obligation to make such payment occurred. As used in this Agreement, "Break Up
Fee" shall be an amount equal to $25,000,000; provided that if the Cash
Collateral has been increased by $25,000,000, or the Letter of
43
<PAGE>
Credit has been amended to increase the amount available thereunder by
$25,000,000, each as provided in Section 4.7(b), the Break-Up Fee payable to
Seller shall be an amount equal to $50,000,000. The "Break-Up Expenses" payable
to Parent or Seller, as the case may be, shall be an amount equal to the
out-of-pocket expenses of such party (and, in the case of Parent, including
Buyer and Parent's general partners and limited partners) incurred in connection
with this Agreement and the transactions contemplated hereby (including, without
limitation, all fees and expenses payable to financing sources or hedging
counterparties, attorneys', accountants' and investment bankers' fees and
expenses). Such Break-Up Expenses shall be reflected on invoices or other means
verifying the incurrence of such Break-Up Expenses.
(b) If this Agreement shall be terminated by Seller and, as provided in
Section 7.2(a), Parent and Buyer are required to pay to Seller a Break-Up Fee or
Break-Up Expenses, then Seller shall be entitled to direct the Escrow Agent (i)
to terminate Parent's rights to receive any part of the Cash Collateral or (ii)
if the Letter of Credit has been delivered to the Escrow Agent in substitution
for the Cash Collateral, to draw on the Letter of Credit in accordance with the
terms thereof. Except as described in the preceding sentence, in no other
circumstances shall Seller have any right to receive any part of the Cash
Collateral or to draw on the Letter of Credit. If this Agreement is terminated
in any circumstance other than as described in the first sentence of this
Section 7.2(b), Seller shall direct the Escrow Agent to return the Cash
Collateral or Letter of Credit, as applicable, to Parent within one business day
of any such termination. Notwithstanding anything in this Agreement to the
contrary, the right of Seller to receive amounts with respect to which Parent's
rights to receive any part of the Cash Collateral is terminated or which are
drawn on the Letter of Credit in accordance with this Section 7.2(b) shall be
the exclusive remedy of Seller, and its stockholders, the Seller Partnership and
the OP Unitholders for any and all losses suffered as a result of the failure of
the Merger and the Partnership Merger to be consummated and upon payment of such
amounts neither Parent nor Buyer shall have any other liability to Seller
hereunder (including under Section 7.2(a)). Any amounts which Seller has the
right to receive pursuant to this Section 7.2(b) shall be applied as set forth
in the Escrow Agreement.
(c) Except as specifically provided in this Section 7.2, each party shall
bear its own expenses in connection with this Agreement and the Transactions.
7.3 Effect of Termination. In the event of termination of this Agreement
by Seller, Buyer or Parent as provided in Section 7.1, this Agreement shall
forthwith become void and have no effect, without any liability or obligation on
the part of Parent, Buyer, or Seller, other than in accordance with Section 7.2,
this Section 7.3 and Article 8.
7.4 Amendment. This Agreement may be amended by Parent, Buyer and Seller
in writing by action of their respective Boards of Directors at any time before
or after any Seller Shareholder Approvals are obtained and prior to the
Effective Time; provided, however, that, after the Seller Shareholder Approvals
are obtained, no such amendment, modification or supplement shall be made which
by law requires the further approval of stockholders without obtaining such
further approval. The parties agree to amend this Agreement in the manner
provided in the immediately preceding sentence to the extent required to
continue the status of Seller as a REIT.
7.5 Extension: Waiver. At any time prior to the Effective Time, the
parties may (a) extend the time for the performance of any of the obligations or
other acts of any other party, (b) waive any inaccuracies in the representations
and warranties of any other party contained in this Agreement or in any document
delivered pursuant to this Agreement or (c) subject to the proviso of Section
7.4, waive compliance with any of the agreements or conditions of any other
party contained in this Agreement. Any agreement on the part of a party to any
such extension or waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party. The failure of any party to this
Agreement to assert any of its rights under this Agreement or otherwise shall
not constitute a waiver of those rights.
44
<PAGE>
ARTICLE 8
GENERAL PROVISIONS
8.1 Nonsurvival of Representations and Warranties. None of the
representations and warranties in this Agreement or in any instrument delivered
pursuant to this Agreement confirming the representations and warranties in this
Agreement shall survive the Effective Time. This Section 8.1 shall not limit any
covenant or agreement of the parties which by its terms contemplates performance
after the Effective Time.
8.2 Notices. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be delivered
personally, sent by overnight courier (providing proof of delivery) to the
parties or sent by telecopy (providing confirmation of transmission) at the
following addresses or telecopy numbers (or at such other address or telecopy
number for a party as shall be specified by like notice):
(a) if to Parent or Buyer, to:
Berkshire Realty Holdings, L.P.
One Beacon Street
Suite 1500
Boston, Massachusetts 02108
Attention: Douglas S. Krupp
Fax: (617) 423-8916
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, NY 10019-6064
Attention: James M. Dubin, Esq.
Michele R. Jenkinson, Esq.
Fax: (212) 757-3990
and
Sullivan & Cromwell
125 Broad Street
New York, NY 10004
Attention: Anthony J. Colletta, Esq.
Fax: (212) 558-3588
and
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, NY 10017-3954
Attention: Gregory J. Ressa, Esq.
Brian M. Stadler, Esq.
Fax: (212) 455-2502
45
<PAGE>
(b) if to Seller, to:
Berkshire Realty Company, Inc.
One Beacon Street
Suite 1550
Boston, Massachusetts 02108
Attention: President
Fax: (617) 646-2373
with a copy to:
Hale and Dorr LLP
60 State Street
Boston, Massachusetts 02109
Attention: David E. Redlick, Esq.
and Kenneth A. Hoxsie, Esq.
Fax: (617) 526-5000
and
Baker & Hostetler LLP
1900 East Ninth Street, Suite 3200
Cleveland, Ohio 44114
Attention: Robert A. Weible, Esq.
Fax: (216) 696-0740
All notices shall be deemed given only when actually received.
8.3 Interpretation. When a reference is made in this Agreement to a
Section, such reference shall be to a Section of this Agreement unless otherwise
indicated. The table of contents and headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
Interpretation of this Agreement. Whenever the words "include," "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation."
8.4 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties.
8.5 Entire Agreement; No Third-Party Beneficiaries. This Agreement, the
Seller Disclosure Letter, the Buyer Disclosure Letter, the Confidentiality
Agreement dated September 16, 1998 between Greenhill & Co., LLC and Lazard on
behalf of Seller, the Partnership Merger Agreement and the other agreements
entered into in connection with the Merger (a) constitute the entire agreement
and supersede all prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter of this Agreement and (b)
except as provided in Section 5.8 (the "Third Party Provision") are not intended
to confer upon any Person other than the parties hereto any rights or remedies.
The Third Party Provision may be enforced by the beneficiaries thereof or on
behalf of the beneficiaries thereof by the directors of Seller who had been
members of the Board of Directors of Seller prior to the Effective Time.
8.6 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, REGARDLESS OF THE LAWS THAT
MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
46
<PAGE>
8.7 Assignment. Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned or delegated, in whole or in
part, by operation of law or otherwise by any of the parties 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.
8.8 Enforcement. The parties agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not performed by
Seller in accordance with their specific terms or were otherwise breached. It is
accordingly agreed that Parent and Buyer shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement by Seller and to enforce
specifically the terms and provisions of this Agreement in any federal court
located in Delaware or in Chancery Court in Delaware, this being in addition to
any other remedy to which they are entitled at law or in equity. The parties
acknowledge that Seller shall not be entitled to an injunction or injunctions to
prevent breaches of this Agreement by Parent or Buyer or to enforce specifically
the terms and provisions of this Agreement and that Seller's sole and exclusive
remedy with respect to any such breach shall be the remedy set forth in Section
7.2. In addition, each of the parties hereto (a) consents to submit itself
(without making such submission exclusive) to the personal jurisdiction of any
federal court located in Delaware or Chancery Court located in Delaware in the
event any dispute arises out of this Agreement or any of the transactions
contemplated by this Agreement and (b) agrees that it will not attempt to deny
or defeat such personal jurisdiction by motion or other request for leave from
any such court.
8.9 Severability. Any term or provision of this Agreement which is invalid
or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
47
<PAGE>
IN WITNESS WHEREOF, Parent, Buyer and Seller have caused this Agreement to
be signed by their respective officers thereunto duly authorized all as of the
date first written above.
<TABLE>
<S> <C> <C>
BERKSHIRE REALTY HOLDINGS, L.P.,
a Delaware limited partnership
By: /s/ DOUGLAS S. KRUPP
-----------------------------------------
Douglas S. Krupp
Authorized Signatory
BRI ACQUISITION, LLC,
a Delaware limited liability company
By: /s/ DOUGLAS S. KRUPP
-----------------------------------------
Douglas S. Krupp
Authorized Signatory
BERKSHIRE REALTY COMPANY, INC.,
a Delaware corporation
By: /s/ DAVID F. MARSHALL
-----------------------------------------
Name: David F. Marshall
Title: Chief Executive Officer
</TABLE>
<TABLE>
<S> <C> <C>
BRI OP LIMITED PARTNERSHIP,
a Delaware limited partnership
joins in this Agreement solely with
respect to Section 7.2
By: Berkshire Apartments, Inc.
By: /s/ DAVID F. MARSHALL
-------------------------------------
Name: David F. Marshall
Title: President and Chief Executive Officer
</TABLE>
48
<PAGE>
BERKSHIRE REALTY COMPANY, INC.
One Beacon Street, Suite 1550
Boston, Massachusetts 02108
August 27, 1999
Berkshire Realty Holdings, L.P.
BRI Acquisition, LLC
One Beacon Street, Suite 1550
Boston, Massachusetts 02108
Gentlemen:
Reference is made to the Agreement and Plan of Merger, dated as of April 13,
1999, by and among Berkshire Realty Holdings, L.P., BRI Acquisition, LLC and
Berkshire Realty Company, Inc. (the "Merger Agreement"). Capitalized terms used
herein and not otherwise defined shall have the respective meanings given them
in the Merger Agreement.
A. The parties hereto desire to amend the Merger Amendment. Accordingly, the
parties hereby agree that the Merger Agreement is amended as follows:
1. The following sentence is hereby added at the end of Section 3.17 of the
Merger Agreement:
"The Surviving Company and the Surviving Operating Partnership also will
have sufficient funds available to take the actions described in clauses (a)
through (d) of this Section 3.17 after giving effect to the Equity
Commitments and to borrowings under the Freddie Mac Commitment Letter (as
defined in Section 7.1(i))."
2. Section 4.3(g) of the Merger Agreement is hereby deleted and the
following new Section 4.3(g) is hereby substituted therefor:
"(g) use reasonable best efforts to do all necessary things required to
close the equity funding contemplated by the Equity Commitments and
either the borrowings contemplated by the Financing Commitments or
the borrowings contemplated by the Freddie Mac Commitment Letter, and
to cause such equity funding and such borrowings to be made available
to Parent, Buyer and Buyer Operating Partnership as provided therein;
and"
3. Section 7.1(i) of the Merger Agreement is hereby deleted and the
following new Section 7.1(i) is hereby substituted therefor:
"(i) by Seller, if Buyer has not closed the equity funding contemplated by
the Equity Commitments and the borrowings contemplated by either (A) the
Financing Commitments or (B) the Final Commitment, dated July 29, 1999,
between Reilly Mortgage Group, Inc. and Parent (as that commitment may be
amended from time to time in a manner not adverse to Seller or Seller
Operating Partnership, the "Freddie Mac Commitment Letter") (x) on or prior
to the Satisfaction Date or (y) on or prior to December 29, 1999, if (1)
Parent elects to extend the Closing Date as contemplated by Section 1.2(b),
(2) the conditions set forth in Section 6.1(b) shall have been satisfied and
(3) Seller shall have delivered a written notice to Parent and Buyer
certifying its ability to satisfy the conditions set forth in Section
6.2(g);"
49
<PAGE>
B. Parent shall provide to Seller, not later than the date the Proxy
Statement is mailed to stockholders of Seller, a true and correct pro forma
capitalization table of Parent and its Subsidiaries, giving effect to the Equity
Commitments, the Freddie Mac Commitment Letter and the consummation of the
transactions contemplated by this Agreement and the Partnership Merger
Agreement. Parent and Buyer, jointly and severally, represent and warrant to
Seller that such pro forma capitalization table will not be inconsistent with
the representation in Section 3.17 of the Merger Agreement.
Except as set forth herein, the Merger Agreement remains in full force and
effect.
Very truly yours,
BERKSHIRE REALTY COMPANY, INC.
By: /s/ David F. Marshall
-----------------------------------
Name: David F. Marshall
Title: President and Chief
Executive Officer
Accepted and Agreed to the
foregoing as of the date first
above written:
BERKSHIRE REALTY HOLDINGS, L.P.
By: /s/ Douglas S. Krupp
-----------------------------------------
Name: Douglas S. Krupp
Title: Authorized Signatory
BRI ACQUISITION, LLC
By: /s/ Douglas S. Krupp
-----------------------------------------
Name: Douglas S. Krupp
Title: Authorized Signatory
50
<PAGE>
APPENDIX B
<TABLE>
<CAPTION>
<S> <C>
[LOGO] [LOGO]
</TABLE>
April 13, 1999
The Board of Directors
Berkshire Realty Company, Inc.
One Beacon Street
Boston, MA 02108
Dear Members of the Board:
We understand that (i) Berkshire Realty Company, Inc. ("Berkshire"),
Berkshire Realty Holdings, L.P. ("Parent") and BRI Acquisitions, LLC ("Berkshire
Acquisitionco") have entered into an Agreement and Plan of Merger dated as of
April 12, 1999 (the "Berkshire Merger Agreement"), pursuant to which Berkshire
Acquisitionco will merge with and into Berkshire with Berkshire as the surviving
entity (or, alternatively, pursuant to Section 1.11 of the Berkshire Merger
Agreement, Berkshire will merge with and into Parent or Berkshire Acquisitionco
with Parent or Berkshire Acquisitionco as the surviving entity) and (ii) BRI OP
Limited Partnership ("Berkshire OP"), Berkshire Apartments, Inc., Parent and BRI
Acquisition Sub, LP ("OP Acquisitionco"), have entered into an Agreement and
Plan of Merger dated as of April 13, 1999 (the "OP Merger Agreement" and,
collectively with the Berkshire Merger Agreement, the "Merger Agreements"),
pursuant to which OP Acquisitionco will merge with and into Berkshire OP with
Berkshire OP as the surviving entity (collectively, the "Acquisition").
You have requested our opinion as to the fairness, from a financial point of
view to the holders of Common Stock of Berkshire (other than Parent or any of
its affiliates) and the holders of limited partnership interests in Berkshire OP
(other than Parent or any of its affiliates) who elect to receive the cash
consideration being offered to such holders in the Acquisition, taken as a
whole, of the aggregate cash consideration to be paid in the Acquisition. In
connection with this opinion, we have:
(i) Reviewed the financial terms and conditions of the Merger Agreements;
(ii) Analyzed certain historical business and financial information relating
to Berkshire;
(iii) Reviewed various financial forecasts and other data provided to us by
Berkshire and relating to its businesses;
(iv) Held discussions with members of the senior managements of Berkshire
with respect to the businesses and prospects of Berkshire and the
strategic objectives of Berkshire;
(v) Reviewed public information with respect to certain other companies in
lines of businesses we
believe to be generally comparable to the businesses of Berkshire;
(vi) Reviewed the financial terms of certain business combinations involving
companies in lines of businesses we believe to be generally comparable to
those of Berkshire;
(vii) Reviewed the historical stock prices and trading volumes of the
Berkshire common stock; and
(viii)Conducted such other financial studies, analyses and investigations as
we deemed appropriate.
We have relied upon the accuracy and completeness of the foregoing
information, and have not assumed any responsibility for any independent
verification of such information or any independent valuation or appraisal of
any of the assets or liabilities of Berkshire, or concerning the solvency or
fair
<PAGE>
value of Berkshire, Berkshire OP, Berkshire Apartments, Inc., Parent, Berkshire
Acquisitionco, OP Acquisitionco or any other entity. With respect to financial
forecasts, we have assumed that they have been reasonably prepared on bases
reflecting the best currently available estimates and judgments of management of
Berkshire as to the future financial performance of Berkshire. We assume no
responsibility for and express no view as to such forecasts or the assumptions
on which they are based.
Further, our opinion is necessarily based on economic, monetary, market and
other conditions as in effect on, and the information made available to us as
of, the date hereof.
In rendering our opinion, we have assumed that the Acquisition will be
consummated on the terms described in the Merger Agreements, without any waiver
of any material terms or conditions by Berkshire or Berkshire OP and that
obtaining the necessary regulatory approvals for the Acquisition will not have
an adverse effect on Berkshire or Berkshire OP. In our review and analysis and
in arriving at our opinion, we have not attempted to value any of the non-cash
consideration being offered to the holders of limited partnership interests in
Berkshire OP, and it is expressly understood that we are not rendering any
opinion with respect to any such non-cash consideration. In addition, we have
not attempted to evaluate the tax consequences of the Acquisition to the holders
of the limited partnership interest in Berkshire OP.
Lazard Freres & Co. LLC is acting as investment banker to Berkshire in
connection with the Acquisition and will receive a fee for our services upon the
closing of the Acquisition.
Our engagement and the opinion expressed herein are for the benefit of
Berkshire's Board of Directors and are not on behalf of, and our opinion does
not constitute a recommendation as to how the holders of Common Stock of
Berkshire and the holders of limited partnership interests in Berkshire OP
should vote with respect to the matters contemplated by the Merger Agreements.
Except as provided in the engagement letter dated May 21, 1998, between
Berkshire and us, it is understood that this letter may not be disclosed or
otherwise referred to without our prior consent, except as may otherwise be
required by law or by a court of competent jurisdiction.
Based on and subject to the foregoing, we are of the opinion that as of the
date hereof, the aggregate cash consideration to be paid in the Acquisition is
fair, from a financial point of view, to the holders of Common Stock of
Berkshire (other than Parent or any of its affiliates) and the holders of
limited partnership interests in Berkshire OP (other than Parent or any of its
affiliates) who elect to receive the cash consideration being offered to such
holders in the Acquisition, taken as a whole.
Very truly yours,
<TABLE>
<S> <C> <C>
LAZARD FRERES & CO. LLC
By: /s/ MATTHEW J. LUSTIG
-----------------------------------------
Matthew J. Lustig
MANAGING DIRECTOR
</TABLE>
<PAGE>
APPENDIX C
[LOGO]
April 13, 1999
Board of Directors
Berkshire Realty Company, Inc.
One Beacon Street, Suite 1550
Boston, MA 02108
Members of the Board:
We understand that Berkshire Realty Company, Inc. (the "Company") proposes
to enter into an agreement providing for the merger of BRI Acquisition, L.L.C.,
a subsidiary of Berkshire Realty Holdings, L.P., with and into the Company and
that upon the effectiveness of such merger, or such alternative structure as
provided by the terms of the Agreement (as defined below), each share of common
stock of the Company will be converted into the right to receive $12.25 in cash
(the "Proposed Transaction"). The terms and conditions of the Proposed
Transaction are set forth in more detail in Agreement and Plan of Merger dated
April 13, 1999 by and among the Company, Berkshire Realty Holdings, L.P. and BRI
Acquisition, L.L.C. (the "Agreement").
We have been requested by the Board of Directors of the Company to render
our opinion with respect to the fairness, from a financial point of view, to the
Company's stockholders of the consideration to be received by such stockholders
in the Proposed Transaction. We have not been requested to opine as to, and our
opinion does not in any manner address, the Company's underlying business
decision to proceed with or effect the Proposed Transaction.
In arriving at our opinion, we reviewed and analyzed: (1) the Agreement and
the specific terms of the Proposed Transaction, (2) publicly available
information concerning the Company that we believe to be relevant to our
analysis, including its Annual Report on Form 10-K for the fiscal year ended
December 31, 1998, (3) financial and operating information with respect to the
business, operations and prospects of the Company furnished to us by the
Company, (4) a trading history of the Company's common stock from April 12, 1997
to the present and a comparison of that trading history with those of other
companies that we deemed relevant, (5) a comparison of the historical financial
results and present financial condition of the Company with those of other
companies that we deemed relevant, (6) a comparison of the financial terms of
the Proposed Transaction with the financial terms of certain other transactions
that we deemed relevant and (7) the results of the Company's and Lazard Freres &
Co., L.L.C.'s efforts to solicit indications of interest to purchase all or a
portion of the Company's business. In addition, we have had discussions with the
management of the Company concerning its business, operations, assets, financial
condition and prospects and have undertaken such other studies, analyses and
investigations as we deemed appropriate.
In arriving at our opinion, we have assumed and relied upon the accuracy and
completeness of the financial and other information used by us without assuming
any responsibility for independent verification of such information and have
further relied upon the assurances of management of the Company that they are
not aware of any facts or circumstances that would make such information
inaccurate or misleading. With respect to the financial projections of the
Company, upon advice of the Company we have assumed that such projections have
been reasonably prepared on a basis reflecting the best currently available
estimates and judgments of the management of the Company as to the future
financial performance of the Company and that the Company will perform
substantially in accordance with such projections. In arriving at our opinion,
we have conducted only a limited physical
<PAGE>
Board of Directors
Berkshire Realty Company, Inc.
April 13, 1999
Page 2
inspection of the properties and facilities of the Company and have not made or
obtained any evaluations or appraisals of the assets or liabilities of the
Company. Our opinion necessarily is based upon market, economic and other
conditions as they exist on, and can be evaluated as of, the date of this
letter.
Based upon and subject to the foregoing, we are of the opinion as of the
date hereof that, from a financial point of view, the consideration to be
received by the stockholders of the Company in the Proposed Transaction is fair
to such stockholders.
We have acted as financial advisor to the Company in connection with the
Proposed Transaction and will receive a fee for our services, a portion of which
is contingent upon the consummation of the Proposed Transaction. In addition,
the Company has agreed to indemnify us for certain liabilities that may arise
out of the rendering of this opinion. We also have performed various investment
banking services for the Company in the past and have received customary fees
for such services. In the ordinary course of our business, we actively trade in
the equity securities of the Company for our own account and for the accounts of
our customers and, accordingly, may at any time hold a long or short position in
such securities.
This opinion is for the use and benefit of the Board of Directors of the
Company and is rendered to the Board of Directors in connection with its
consideration of the Proposed Transaction. This opinion is not intended to be
and does not constitute a recommendation to any stockholder of the Company as to
how such stockholder should vote with respect to the Proposed Transaction.
Very truly yours
LEHMAN BROTHERS
<PAGE>
[LOGO]
APPENDIX D
Prudential Securities
Incorporated
One New York Plaza, New York, NY
10292
(212) 778-1000
April 13, 1999
The Special Committee of the Board of Directors
Berkshire Realty Company, Inc.
One Beacon Street
Suite 1500
Boston, MA 02108
Members of the Special Committee of the Board of Directors.
We understand that Berkshire Realty Company, Inc., a Delaware corporation
(the "Company"), Berkshire Realty Holdings, L.P., a Delaware limited partnership
("Parent") and BRI Acquisition, LLC, a Delaware limited liability corporation
and subsidiary of Parent ("Acquisition") propose to enter into an Agreement and
Plan of Merger (the "Merger Agreement") pursuant to which Acquisition will merge
with an into the Company (the "Merger"). At the effective time of the Merger,
each outstanding share of common stock, par value $0.01, of the Company (the
"Company Common Stock") will be converted into the right to receive $12.25 in
cash (the "Common Stock Consideration") and each outstanding share of preferred
stock, par value $0.01, of the Company (the "Company Preferred Stock") will be
converted into the right to receive $28.75 in cash together with 115% of any
accrued dividends on the Company Preferred Stock (the "Preferred
Consideration"). We further understand that BRI OP Limited Partnership, a
Delaware limited partnership (the "OP"), Parent and BRI Acquisition Sub, LP, a
Delaware limited partnership ("Acquisition OP") propose to enter into a merger
agreement (the "OP Merger Agreement") pursuant to which Acquisition OP will
merge with and into the OP (the "OP Merger" and together with the Merger, the
"Transactions") with the OP being the surviving entity (the "Surviving OP"). At
the effective time of the OP Merger, each unit of limited partnership interest
in the OP (each a OP Unit") will be converted into the right to receive either:
(i) $12.25 in cash (the "OP Cash Consideration"), (ii) one class A preferred
unit of limited partnership interest in the Surviving OP with a cumulative
preferred return of 7.5%, or (iii) one class B unit of limited partnership
interest in the Surviving OP ((i), (ii), and (iii) together the "OP
Consideration" and together with the Common Stock Consideration and the
Preferred Consideration, the "Transaction Consideration").
You have requested our opinion as to the fairness, from a financial point of
view of the Common Stock Consideration, and OP Consideration to respective
security holders in the OP to be paid in the Transactions to the respective
security holders of the Company and the OP.
In conducting our analysis and arriving at the opinion expressed herein, we
have reviewed such materials and considered such financial and other factors as
we deemed relevant under the circumstances, including:
(i) a draft of the Merger Agreement, dated April 11, 1999;
(ii) a draft of the OP Merger Agreement, dated April 11, 1999;
(iii) certain publicly available historical financial and operating data
concerning the Company including, but not limited to, the Annual Reports
on Form 10-K of the Company for fiscal years ended December 31, 1996,
1997 and 1998,
(iv) historical stock market prices and trading volumes for the Company
Common Stock;
(v) publicly available financial, operating and stock market data concerning
certain companies engaged in businesses we deemed comparable to the
businesses of the Company, or otherwise relevant to our inquiry;
<PAGE>
[LOGO]
PRUDENTIAL SECURITIES
INCORPORATED
(vi) the financial terms of certain recent transactions we deemed relevant
to our inquiry;
(vii) an appraisal dated October 31, 1998 of the Company's properties
prepared by Cushman & Wakefield; and
(viii)such other financial studies, analyses and investigations that we
deemed appropriate.
We have assumed, with your consent, that the drafts of the Merger Agreement
and the OP Merger Agreement we reviewed will conform in all material respects to
those documents when in final form. We have further assumed, with your consent,
that each OP Unit Holder will elect to receive the OP Cash Consideration.
We have discussed with senior management of the Company; (1) the past and
current operating and financial condition of the Company, (ii) the prospects for
the Company, (iii) their estimates of the Company's future financial performance
and (iv) such other matters we deemed relevant.
In connection with our review and analysis and in arriving at our opinion,
we have relied upon the accuracy and completeness of the financial and other
information that is publicly available or was provided to us by the Company and
we have not undertaken any independent verification of such information or any
independent valuation or appraisal of any of the assets or liabilities of the
Company. With respect to certain financial forecasts for the Company provided to
us by the management of the Company, we have assumed that such information (and
the assumption and bases therefor) represents management's best currently
available estimate as to the future financial performance of the Company.
Further, our opinion is based on economic, financial and market conditions as
they currently exist and can only be evaluated as of the date hereof and we
assume no responsibility to update or revise our opinion based upon events or
circumstances occurring after the date hereof.
Our opinion does not address, nor should it be construed to address, the
relative merits of the Transactions, on the one hand, or any alternative
business strategies that may be available to the Company, on the other hand.
We have been retained by the Special Committee of the Board of Directors of
the Company to render this opinion and provide other financial advisory services
in connection with the Transactions and will receive an advisory fee for such
services. In the ordinary course of business we may actively trade the common
stock of the Company for our own account and for the accounts of customers and,
accordingly, may at any time hold a long or short position in such securities.
This letter and the opinion expressed herein are for the use of the Special
Committee of the Board of Directors of the Company. This opinion does not
constitute a recommendation to the stockholders of the Company as to how such
stockholders should vote in connection with the Merger or as to any other action
such stockholders should take regarding the Merger. This opinion may not be
reproduced, summarized, excerpted from or otherwise publicly referred to or
disclosed in any manner without our prior written consent.
Based upon and subject to the foregoing, we are of the opinion that, as of
the date hereof, the Common Stock Consideration, and OP Consideration to
respective security holders in the OP to be paid in the Transactions is fair to
the respective security holders of the Company and the OP from a financial point
of view. This opinion does not address the fairness of the OP Consideration
other than the OP Cash Consideration.
Very truly yours,
/s/ PRUDENTIAL SECURITIES INCORPORATED
-----------------------------------------
PRUDENTIAL SECURITIES INCORPORATED
<PAGE>
APPENDIX E
DELAWARE GENERAL CORPORATION LAW
SEC. 262 APPRAISAL RIGHTS.
(a) Any stockholder of a corporation of this State who holds shares of stock
on the date of the making of a demand pursuant to subsection (d) of this section
with respect to such shares, who continuously holds such shares through the
effective date of the merger or consolidation, who has otherwise complied with
subsection (d) of this section and who has neither voted in favor of the merger
or consolidation nor consented thereto in writing pursuant to Section228 of this
title shall be entitled to an appraisal by the Court of Chancery of the fair
value of the stockholder's shares of stock under the circumstances described in
subsections (b) and (c) of this section. As used in this section, the word
"stockholder" means a holder of record of stock in a stock corporation and also
a member of record of a nonstock corporation; the words "stock" and "share" mean
and include what is ordinarily meant by those words and also membership or
membership interest of a member of a nonstock corporation; and the words
"depository receipt" mean a receipt or other instrument issued by a depository
representing an interest in one or more shares, or fractions thereof, solely of
stock of a corporation, which stock is deposited with the depository.
(b) Appraisal rights shall be available for the shares of any class or
series of stock of a constituent corporation in a merger or consolidation to be
effected pursuant to Section251 (other than a merger effected pursuant to
Section251(g) of this title), Section252, Section254, Section257, Section258,
Section263 or Section264 of this title:
(1) Provided, however, that no appraisal rights under this section shall
be available for the shares of any class or series of stock, which stock, or
depository receipts in respect thereof, at the record date fixed to
determine the stockholders entitled to receive notice of and to vote at the
meeting of stockholders to act upon the agreement of merger or
consolidation, were either (i) listed on a national securities exchange or
designated as a national market system security on an interdealer quotation
system by the National Association of Securities Dealers, Inc. or (ii) held
of record by more than 2,000 holders; and further provided that no appraisal
rights shall be available for any shares of stock of the constituent
corporation surviving a merger if the merger did not require for its
approval the vote of the stockholders of the surviving corporation as
provided in subsection (f) of Section251 of this title.
(2) Notwithstanding paragraph (1) of this subsection, appraisal rights
under this section shall be available for the shares of any class or series
of stock of a constituent corporation if the holders thereof are required by
the terms of an agreement of merger or consolidation pursuant to
SectionSection251, 252, 254, 257, 258, 263 and 264 of this title to accept
for such stock anything except:
a. Shares of stock of the corporation surviving or resulting from
such merger or consolidation, or depository receipts in respect thereof;
b. Shares of stock of any other corporation, or depository receipts
in respect thereof, which shares of stock (or depository receipts in
respect thereof) or depository receipts at the effective date of the
merger or consolidation will be either listed on a national securities
exchange or designated as a national market system security on an
interdealer quotation system by the National Association of Securities
Dealers, Inc. or held of record by more than 2,000 holders;
c. Cash in lieu of fractional shares or fractional depository
receipts described in the foregoing subparagraphs a. and b. of this
paragraph; or
E-1
<PAGE>
d. Any combination of the shares of stock, depository receipts and
cash in lieu of fractional shares or fractional depository receipts
described in the foregoing subparagraphs a., b. and c. of this paragraph.
(3) In the event all of the stock of a subsidiary Delaware corporation
party to a merger effected under Section253 of this title is not owned by
the parent corporation immediately prior to the merger, appraisal rights
shall be available for the shares of the subsidiary Delaware corporation.
(c) Any corporation may provide in its certificate of incorporation that
appraisal rights under this section shall be available for the shares of any
class or series of its stock as a result of an amendment to its certificate of
incorporation, any merger or consolidation in which the corporation is a
constituent corporation or the sale of all or substantially all of the assets of
the corporation. If the certificate of incorporation contains such a provision,
the procedures of this section, including those set forth in subsections (d) and
(e) of this section, shall apply as nearly as is practicable.
(d) Appraisal rights shall be perfected as follows:
(1) If a proposed merger or consolidation for which appraisal rights are
provided under this section is to be submitted for approval at a meeting of
stockholders, the corporation, not less than 20 days prior to the meeting,
shall notify each of its stockholders who was such on the record date for
such meeting with respect to shares for which appraisal rights are available
pursuant to subsections (b) or (c) hereof that appraisal rights are
available for any or all of the shares of the constituent corporations, and
shall include in such notice a copy of this section. Each stockholder
electing to demand the appraisal of SUCH STOCKHOLDER'S shares shall deliver
to the corporation, before the taking of the vote on the merger or
consolidation, a written demand for appraisal of SUCH STOCKHOLDER'S shares.
Such demand will be sufficient if it reasonably informs the corporation of
the identity of the stockholder and that the stockholder intends thereby to
demand the appraisal of SUCH STOCKHOLDER'S shares. A proxy or vote against
the merger or consolidation shall not constitute such a demand. A
stockholder electing to take such action must do so by a separate written
demand as herein provided. Within 10 days after the effective date of such
merger or consolidation, the surviving or resulting corporation shall notify
each stockholder of each constituent corporation who has complied with this
subsection and has not voted in favor of or consented to the merger or
consolidation of the date that the merger or consolidation has become
effective; or
(2) If the merger or consolidation was approved pursuant to Section228
or Section253 of this title, each constituent corporation, either before the
effective date of the merger or consolidation or within ten days thereafter,
shall notify each of the holders of any class or series of stock of such
constituent corporation who are entitled to appraisal rights of the approval
of the merger or consolidation and that appraisal rights are available for
any or all shares of such class or series of stock of such constituent
corporation, and shall include in such notice a copy of this section;
provided that, if the notice is given on or after the effective date of the
merger or consolidation, such notice shall be given by the surviving or
resulting corporation to all such holders of any class or series of stock of
a constituent corporation that are entitled to appraisal rights. Such notice
may, and, if given on or after the effective date of the merger or
consolidation, shall, also notify such stockholders of the effective date of
the merger or consolidation. Any stockholder entitled to appraisal rights
may, within 20 days after the date of mailing of such notice, demand in
writing from the surviving or resulting corporation the appraisal of such
holder's shares. Such demand will be sufficient if it reasonably informs the
corporation of the identity of the stockholder and that the stockholder
intends thereby to demand the appraisal of such holder's shares. If such
notice did not notify stockholders of the effective date of the merger or
consolidation, either (i) each such constituent corporation shall send a
second notice before the effective date of the merger or consolidation
notifying each of the holders of any class or series of stock of such
constituent
E-2
<PAGE>
corporation that are entitled to appraisal rights of the effective date of
the merger or consolidation or (ii) the surviving or resulting corporation
shall send such a second notice to all such holder on or within 10 days
after such effective date; provided, however, that if such second notice is
sent more than 20 days following the sending of the first notice, such
second notice need only be sent to each stockholder who is entitled to
appraisal rights and who has demanded appraisal of such holder's shares in
accordance with this subsection. An affidavit of the secretary or assistant
secretary or of the transfer agent of the corporation that is required to
give either notice that such notice has been given shall, in the absence of
fraud, be prima facie evidence of the facts stated therein. For purposes of
determining the stockholders entitled to receive either notice, each
constituent corporation may fix, in advance, a record date that shall be not
more than 10 days prior to the date the notice is given, provided, that if
the notice is given on or after the effective date of the merger or
consolidation, the record date shall be such effective date. If no record
date is fixed and the notice is given prior to the effective date, the
record date shall be the close of business on the day next preceding the day
on which the notice is given.
(e) Within 120 days after the effective date of the merger or consolidation,
the surviving or resulting corporation or any stockholder who has complied with
subsections (a) and (d) hereof and who is otherwise entitled to appraisal
rights, may file a petition in the Court of Chancery demanding a determination
of the value of the stock of all such stockholders. Notwithstanding the
foregoing, at any time within 60 days after the effective date of the merger or
consolidation, any stockholder shall have the right to withdraw SUCH
STOCKHOLDER'S demand for appraisal and to accept the terms offered upon the
merger or consolidation. Within 120 days after the effective date of the merger
or consolidation, any stockholder who has complied with the requirements of
subsections (a) and (d) hereof, upon written request, shall be entitled to
receive from the corporation surviving the merger or resulting from the
consolidation a statement setting forth the aggregate number of shares not voted
in favor of the merger or consolidation and with respect to which demands for
appraisal have been received and the aggregate number of holders of such shares.
Such written statement shall be mailed to the stockholder within 10 days after
SUCH STOCKHOLDER'S written request for such a statement is received by the
surviving or resulting corporation or within 10 days after expiration of the
period for delivery of demands for appraisal under subsection (d) hereof,
whichever is later.
(f) Upon the filing of any such petition by a stockholder, service of a copy
thereof shall be made upon the surviving or resulting corporation, which shall
within 20 days after such service file in the office of the Register in Chancery
in which the petition was filed a duly verified list containing the names and
addresses of all stockholders who have demanded payment for their shares and
with whom agreement as to the value of their shares have not been reached by the
surviving or resulting corporation. If the petition shall be filed by the
surviving or resulting corporation, the petition shall be accompanied by such a
duly verified list. The Register in Chancery, if so ordered by the Court, shall
give notice of the time and place fixed for the hearing of such petition by
registered or certified mail to the surviving or resulting corporation and to
the stockholders shown on the list at the addresses therein stated. Such notice
shall also be given by 1 or more publications at least 1 week before the day of
the hearing, in a newspaper of general circulation published in the City of
Wilmington, Delaware or such publication as the Court deems advisable. The forms
of the notices by mail and by publication shall be approved by the Court, and
the costs thereof shall be borne by the surviving or resulting corporation.
(g) At the hearing on such petition, the Court shall determine the
stockholders who have complied with this section and who have become entitled to
appraisal rights. The Court may require the stockholders who have demanded an
appraisal for their shares and who hold stock represented by certificates to
submit their certificates of stock to the Register in Chancery for notation
thereon of the pendency of the appraisal proceedings; and if any stockholder
fails to comply with such direction, the Court may dismiss the proceedings as to
such stockholder.
E-3
<PAGE>
(h) After determining the stockholders entitled to an appraisal, the Court
shall appraise the shares, determining their fair value exclusive of any element
of value arising from the accomplishment or expectation of the merger or
consolidation, together with a fair rate of interest, if any, to be paid upon
the amount determined to be the fair value. In determining such fair value, the
Court shall take into account all relevant factors. In determining the fair rate
of interest, the Court may consider all relevant factors, including the rate of
interest which the surviving or resulting corporation would have had to pay to
borrow money during the pendency of the proceeding. Upon application by the
surviving or resulting corporation or by any stockholder entitled to participate
in the appraisal proceeding, the Court may, in its discretion, permit discovery
or other pretrial proceedings and may proceed to trial upon the appraisal prior
to the final determination of the stockholder entitled to an appraisal. Any
stockholder whose name appears on the list filed by the surviving or resulting
corporation pursuant to subsection (f) of this section and who has submitted
SUCH STOCKHOLDER'S certificates of stock to the Register in Chancery, if such is
required, may participate fully in all proceedings until it is finally
determined that SUCH STOCKHOLDER is not entitled to appraisal rights under this
section.
(i) The Court shall direct the payment of the fair value of the shares,
together with interest, if any, by the surviving or resulting corporation to the
stockholders entitled thereto. Interest may be simple or compound, as the Court
may direct. Payment shall be so made to each such stockholder, in the case of
holders of uncertificated stock forthwith, and the case of holders of shares
represented by certificates upon the surrender to the corporation of the
certificates representing such stock. The Court's decree may be enforced as
other decrees in the Court of Chancery may be enforced, whether such surviving
or resulting corporation be a corporation of this State or of any state.
(j) The costs of the proceeding may be determined by the Court and taxed
upon the parties as the Court deems equitable in the circumstances. Upon
application of a stockholder, the Court may order all or a portion of the
expenses incurred by any stockholder in connection with the appraisal
proceeding, including, without limitation, reasonably attorney's fees and the
fees and expenses of experts, to be charged pro rata against the value of all
the shares entitled to an appraisal.
(k) From and after the effective date of the merger or consolidation, no
stockholder who has demanded appraisal rights as provided in subsection (d) of
this section shall be entitled to vote such stock for any purpose or to receive
payment of dividends or other distributions on the stock (except dividends or
other distributions payable to stockholders of record at a date which is prior
to the effective date of the merger or consolidation); provided, however, that
if no petition for an appraisal shall be filed within the time provided in
subsection (e) of this section, or if such stockholder shall deliver to the
surviving or resulting corporation a written withdrawal of SUCH STOCKHOLDER'S
demand for an appraisal and an acceptance of the merger or consolidation, either
within 60 days after the effective date of the merger or consolidation as
provided in subsection (e) of this section or thereafter with the written
approval of the corporation, then the right of such stockholder to an appraisal
shall cease. Notwithstanding the foregoing, no appraisal proceeding in the Court
of Chancery shall be dismissed as to any stockholder without the approval of the
Court, and such approval may be conditioned upon such terms as the Court deems
just.
(l) The shares of the surviving or resulting corporation to which the shares
of such objecting stockholders would have been converted had they assented to
the merger or consolidation shall have the status of authorized and unissued
shares of the surviving or resulting corporation. (Last amended by Ch. 339, L.
"98, eff. 7-1-98.)
E-4
<PAGE>
APPENDIX F
The name, position and present principal occupation of each manager and
executive officer of WXI/ BRH Gen-Par, L.L.C. are set forth below.
The business address of all the executive officers and managers listed below
except Edward M. Siskind, G. Douglas Gunn, Todd A. Williams and Angie D. Madison
is 85 Broad Street, New York, New York 10004. The business address of Edward M.
Siskind is 133 Fleet Street, London EC4A 2BB, England. The business address of
G. Douglas Gunn, Todd A. Williams and Angie Madison is 100 Crescent Court, Suite
1000, Dallas, TX 75201.
All executive officers and managers listed below are United States citizens.
<TABLE>
<CAPTION>
NAME POSITION PRESENT PRINCIPAL OCCUPATION
- ------------------------------------ ------------------------------------ ------------------------------------
<S> <C> <C>
Rothenberg, Stuart M. Manager/Vice President Managing Director of
Goldman, Sachs & Co.
Neidich, Daniel M. Manager/President Managing Director of
Goldman, Sachs & Co.
Weil, David M. Vice President Managing Director of
Goldman, Sachs & Co.
Rosenberg, Ralph F. Manager/Vice President/ Assistant Managing Director of
Secretary Goldman, Sachs & Co.
Williams, Todd A. Vice President/ Assistant Secretary/ Managing Director of
Assistant Treasurer Goldman, Sachs & Co.
Naughton, Kevin D. Vice President/Secretary/ Treasurer Vice President of
Goldman, Sachs & Co.
Siskind, Edward M. Vice President/ Assistant Treasurer Managing Director of
Goldman Sachs International
Klingher, Michael K. Vice President Managing Director of
Goldman, Sachs & Co.
Kava, Alan S. Vice President Vice President of
Goldman, Sachs & Co.
Feldman, Steven M. Vice President Managing Director of
Goldman, Sachs & Co.
Lauer, Kate Vice President/ Assistant Secretary Vice President of
Goldman, Sachs & Co.
Sack, Susan L. Vice President/ Assistant Secretary Vice President of
Goldman, Sachs & Co.
Burban, Elizabeth M. Vice President/ Assistant Secretary Vice President of
Goldman, Sachs & Co.
Lahey, Brian J. Vice President Vice President of
Goldman, Sachs & Co.
Gunn, G. Douglas Vice President Vice President of
Goldman, Sachs & Co.
</TABLE>
F-1
<PAGE>
<TABLE>
<CAPTION>
NAME POSITION PRESENT PRINCIPAL OCCUPATION
- ------------------------------------ ------------------------------------ ------------------------------------
<S> <C> <C>
Madison, Angie D. Vice President Vice President of
Goldman, Sachs & Co.
Bernstein, Ronald L. Vice President Vice President of
Goldman, Sachs & Co.
Brooks, Adam Assistant Vice President Associate of
Goldman, Sachs & Co.
</TABLE>
F-2
<PAGE>
APPENDIX G
The name, position and present principal occupation of each manager and
executive officer of WH Advisors, L.L.C. XI, which is the sole general partner
of Whitehall Street Real Estate Limited Partnership XI, are set forth below.
The business address of all the executive officers and managers listed below
except G. Douglas Gunn, Todd A. Williams, Angie D. Madison, Edward M. Siskind,
Paul R. Milosevich, Elizabeth A. O'Brien, Zubin P. Irani and Eli Muraidekh is 85
Broad Street, New York, New York 10004. The business address of G. Douglas Gunn,
Todd A. Williams, Angie D. Madison and Paul R. Milosevich is 100 Crescent Court,
Suite 1000, Dallas, TX 75201. The business address of Edward M. Siskind, Zubin
P. Irani and Eli Muraidekh is 133 Fleet Street, London EC4A 2BB, England. The
business address of Elizabeth A. O'Brien is 3 Garden Road, Central, Hong Kong.
Except for Brahm S. Cramer, who is a Canadian citizen, all executive
officers and managers listed below are United States citizens.
<TABLE>
<CAPTION>
NAME POSITION PRESENT PRINCIPAL OCCUPATION
- ------------------------------------ ------------------------------------ ------------------------------------
<S> <C> <C>
Rothenberg, Stuart M. Manager/Vice President Managing Director of
Goldman, Sachs & Co.
Neidich, Daniel M. Manager/President Managing Director of
Goldman, Sachs & Co.
O'Brien, Elizabeth A. Vice President/Assistant Secretary Vice President of
Goldman Sachs (Asia) L.L.C.
Weil, David M. Vice President Managing Director of
Goldman, Sachs & Co.
Rosenberg, Ralph F. Manager/Vice President/ Assistant Managing Director of
Secretary Goldman, Sachs & Co.
Williams, Todd A. Vice President/Assistant Managing Director of
Secretary/Assistant Treasurer Goldman, Sachs & Co.
Naughton, Kevin D. Vice President/Secretary/ Treasurer Vice President of
Goldman, Sachs & Co.
Siskind, Edward M. Vice President/Assistant Treasurer Managing Director of
Goldman Sachs International
Klingher, Michael K. Vice President Managing Director of
Goldman, Sachs & Co.
Gunn, G. Douglas Vice President/Assistant Secretary Vice President of
Goldman, Sachs & Co.
Lahey, Brian J. Vice President/Assistant Treasurer Vice President of
Goldman, Sachs & Co.
Kava, Alan S. Vice President Vice President of
Goldman, Sachs & Co.
Feldman, Steven M. Vice President Managing Director of
Goldman, Sachs & Co.
Madison, Angie D. Vice President/Assistant Secretary Vice President of
Goldman, Sachs & Co.
</TABLE>
G-1
<PAGE>
<TABLE>
<CAPTION>
NAME POSITION PRESENT PRINCIPAL OCCUPATION
- ------------------------------------ ------------------------------------ ------------------------------------
<S> <C> <C>
Weiss, Mitchell S. Assistant Treasurer Vice President of
Goldman, Sachs & Co.
Cramer, Brahm S. Vice President Vice President of
Goldman, Sachs & Co.
Karr, Jerome S. Vice President Vice President of
Goldman, Sachs & Co.
Lauer, Kate Vice President/Assistant Secretary Vice President of
Goldman, Sachs & Co.
Milosevich, Paul R. Vice President Vice President of
Goldman, Sachs & Co.
Mortelliti, Josephine Vice President Vice President of
Goldman, Sachs & Co.
Muraidekh, Eli Vice President Vice President of
Goldman Sachs International
Sack, Susan L. Vice President/Assistant Secretary Vice President of
Goldman, Sachs & Co.
Burban, Elizabeth M. Vice President/Assistant Secretary Vice President of
Goldman, Sachs & Co.
Bernstein, Ronald L. Assistant Vice President/ Assistant Vice President of
Secretary Goldman, Sachs & Co.
Irani, Zubin P. Assistant Vice President/ Assistant Vice President of
Secretary Goldman Sachs International
</TABLE>
G-2
<PAGE>
APPENDIX H
The name of each director of The Goldman Sachs Group, Inc. is set forth
below.
The business address of each person listed below except John L. Thornton,
Sir John Browne and James A. Johnson is 85 Broad Street, New York, NY 10004. The
business address of John L. Thornton is 133 Fleet Street, London EC4A 2BB,
England. The business address of Sir John Browne is BP Amoco plc, Brittanic
House, 1 Finsbury Circus, London EC2M, England. The business address of James A.
Johnson is Fannie Mae, 3900 Wisconsin Avenue NW, Washington, D.C. 20016.
Each person is a citizen of the United States of America except for Sir John
Browne, who is a citizen of the United Kingdom. The present principal occupation
or employment of each of the listed persons is set forth below.
<TABLE>
<CAPTION>
NAME PRESENT PRINCIPAL OCCUPATION
- -------------------------------------------------------- --------------------------------------------------------
<S> <C>
Henry M. Paulson, Jr.................................... Chairman and Chief Executive Officer of The Goldman
Sachs Group, Inc.
Robert J. Hurst......................................... Vice Chairman of The Goldman Sachs Group, Inc.
John A. Thain........................................... President and Co-Chief Operating Officer of The Goldman
Sachs Group, Inc.
John L. Thornton........................................ President and Co-Chief Operating Officer of The Goldman
Sachs Group, Inc.
Sir John Browne......................................... Group Chief Executive of BP Amoco plc
James A. Johnson........................................ Chairman of the Executive Committee of the Board of
Fannie Mae
John L. Weinberg........................................ Senior Chairman of The Goldman Sachs Group, Inc.
</TABLE>
H-1
<PAGE>
APPENDIX I
<TABLE>
<S> <C>
[LOGO] [LOGO]
</TABLE>
December 1, 1998
Berkshire Realty Company, Inc. (NYSE-BRI)
One Beacon Street, Suite 1550
Boston, MA 02108
Re: Appraisal of Real Property
Real Estate Assets of Berkshire
Realty Company, Inc., a publicly
traded Real Estate Investment Trust
Ladies and Gentlemen:
In fulfillment of our agreement as outlined in the Letter of Engagement,
Cushman & Wakefield, Inc. and its affiliates are pleased to transmit a summary
appraisal estimating the market value of the fee simple estate in the referenced
real property. This appraisal is a summary of our conclusions as stated in each
of our complete, self-contained reports on each asset. Our complete,
self-contained reports that detail our analyses, and valuation conclusions have
been delivered to you under separate cover. The value conclusions stated within
this report are subject to the assumptions and limiting conditions attached and
those contained in each individual report.
This report is intended to comply with the reporting requirements set forth
under Standards Rule 2-2 (c) of the Uniform Standards of Professional Appraisal
Practice for a complete summary appraisal report. As such, it does not include a
discussion of data, reasoning and analyses that were used in the appraisal
process to develop the appraisers' opinion of value. Reliance upon this report
by the client, is limited to the extent that we have not included supporting
data nor our work files. However, supporting data has been included in our
complete, self-contained reports which you have received under separate cover.
The effective date of value is October 15, 1998. The properties which are
the subject of this report were inspected at various dates during the months of
September and October 1998 by the preparers of each individual report. This
summary report was prepared by Douglas H. Larson and Matthew C. Mondanile, MAI,
while the self-contained appraisal reports were prepared by Cushman & Wakefield
Valuation Advisory Services personnel of the various affiliates of Cushman &
Wakefield, Inc.
The purpose of this appraisal is to estimate the market value of the fee
simple estate, as of the valuation date. The function of the report is for the
internal business decisions of Berkshire Realty Company, Inc. ("BRI"). This
report may also be furnished to BRI's stockholders. The definition of market
value, taken from Uniform Standards of Professional Appraisal Practice of the
Appraisal Foundation, is presented as follows:
The most probable price which a property should bring in a competitive and
open market under all conditions requisite to a fair sale, the buyer and
seller, each acting prudently and knowledgeably, and assuming the price is
not affected by undue stimulus. Implicit in this definition is the
consummation of a sale as of a specified date and the passing of title from
seller to buyer under conditions whereby:
1. Buyer and seller are typically motivated;
I-1
<PAGE>
[LOGO]
2. Both parties are well informed or well advised, and acting in what they
consider their own best interests;
3. A reasonable time is allowed for exposure in the open market;
4. Payment is made in terms of cash in US dollars or in terms of financial
arrangements comparable thereto; and
5. The price represents the normal consideration for the property sold
unaffected by special or creative financing or sales concessions granted
by anyone associated with the sale.
EXPOSURE TIME
Under Paragraph 3 of the Definition of Market Value, the value estimate
presumes that "A reasonable time is allowed for exposure in the open
market". Exposure time is defined as the estimated length of time the
property interest being appraised would have been offered on the market
prior to the hypothetical consummation of a sale at the market value on the
effective date of the appraisal. Exposure time is presumed to precede the
effective date of the appraisal.
Based on our research of recent sales of apartment complexes considered to
be reasonably comparable to those contained within BRI, as well as our
discussions with local brokers and buyers/sellers of multi-family projects,
we have concluded that the probable exposure time for the properties would
have been approximately twelve months. In fact, the majority of the
apartment sales included within our self-contained appraisal reports, were
exposed on the market for a period of approximately six to twelve months
prior to closing. Thus, the aforementioned exposure time appears reasonable.
The following definitions of pertinent terms are taken from the DICTIONARY
OF REAL ESTATE APPRAISAL, THIRD EDITION (1993), published by the APPRAISAL
INSTITUTE.
FEE SIMPLE ESTATE
Absolute ownership unencumbered by any other interest or estate, subject
only to the limitations imposed by the governmental powers of taxation,
eminent domain, police power, and escheat.
DIRECT CAPITALIZATION
1. A method used to convert an estimate of a single year's income
expectancy into an indication of value in one direct step, either by
dividing the income estimate by an appropriate rate or by multiplying the
income estimate by an appropriate factor.
2. A capitalization technique that employs capitalization rates and
multipliers extracted from sales. Only the first year's income is
considered. Yield and value change are implied, but not identified.
DISCOUNTED CASH FLOW ANALYSIS
The procedure in which a discount rate is applied to a set of projected
income streams and a reversion. The analyst specifies the quantity,
variability, timing, and duration of the income streams as well as the
quantity and timing of the reversion and discounts each to its present value
at a specified yield rate. Discounted Cash Flow Analysis can be applied with
any yield capitalization technique and may be performed on either a
lease-by-lease or aggregate basis.
I-2
<PAGE>
[LOGO]
MARKET VALUE AS IS ON APPRAISAL DATE
The value of specific ownership rights to an identified parcel of real
estate as of the effective date of the appraisal; related to what physically
exists and is legally permissible and excludes all assumptions concerning
hypothetical market conditions or possible rezoning.
PROSPECTIVE VALUE ON REACHING STABILIZED OCCUPANCY
The value of a property as of a point in time when all improvements have
been physically constructed and the property has been leased to its optimum
level of long term occupancy. At such point, all capital outlays for tenant
improvements, leasing commissions, marketing costs, and other carrying
charges are assumed to have been absorbed.
In preparing our self-contained appraisal reports, Cushman & Wakefield
personnel inspected each of the properties. Our appraisers were able to inspect
those areas of the properties and immediate area that would be inspected during
the course of a typical appraisal assignment. We reviewed economic and
demographic trends for each market, taking into account the impact of both the
existing competitive inventory and proposed additions to the market. We have
also compiled and analyzed recent market sales, as well as projecting future
anticipated income and expenses. During the course of their research and
analysis, our appraisers concluded that each property's highest and best use is
its existing or proposed use, multi-family construction.
BRI is a real estate investment trust which is publicly traded on the New
York Stock Exchange. BRI is a multi-family REIT, specializing in owning,
developing, and managing multi-family apartment complexes in four defined
regions of the United States. The apartment complexes are typically in excess of
200 units in size. As of the effective date of appraisal, BRI owned and managed
a total of 23,827 units. Although primarily an owner and manager, BRI
periodically develops new apartment complexes and renovates and rehabilitates
existing units and complexes.
BRI operates in four areas identified as the Mid-Atlantic, Southeast,
Florida, and Texas regions.
MID-ATLANTIC--BRI owns and manages 6,218 units in this region which
encompasses suburban Washington, D.C. and Baltimore, Maryland. As of August
31, 1998, their portfolio was 98.7 percent occupied in this region. There is
one property owned and managed in Nassau County, New York.
SOUTHEAST--The Southeast region includes complexes located in suburban
Atlanta, Georgia, Charlotte and Raleigh, North Carolina, Greenville and
Mauldin, South Carolina, and Nashville and Knoxville, Tennessee. BRI owns
and manages 5,993 units in this region which are 97.1 percent occupied.
FLORIDA--The BRI holdings in the State of Florida include complexes in
suburban areas of Broward County on the east coast, Orlando in the central
part of the state, and Tampa St. Petersburg on the west coast. BRI owns and
manages 3,161 units in this region which are 95.9 percent occupied.
TEXAS--Similar to their Florida holdings, BRI owns and manages 8,455 units
in suburban areas of the major cities of Dallas, Ft. Worth, Houston, San
Antonio, and Austin. The 8,455 units are 97.9 percent occupied.
I-3
<PAGE>
[LOGO]
In addition to owning and operating 23,827 units as 80 operating properties
within the four regions, BRI has four properties under development and two
future development sites identified as follows:
<TABLE>
<CAPTION>
UNDER DEVELOPMENT CITY STATE NO. OF UNITS
- --------------------------------------------------------------------- ---------- ----- ---------------
<S> <C> <C> <C>
Granite Run.......................................................... Baltimore MD 264
Berkshires @ Crooked Creek........................................... Durham NC 296
Berkshire Commons I.................................................. Clemson SC 177
The Berkshires @ Deerfield I......................................... Atlanta GA 478
<CAPTION>
LAND HELD FOR FUTURE DEVELOPMENT CITY STATE NO. OF UNITS
- --------------------------------------------------------------------- ---------- ----- ---------------
<S> <C> <C> <C>
Inglesby Site........................................................ Greenville SC 488
Garlington Road Site................................................. Greenville SC 452
</TABLE>
PROPERTY DESCRIPTIONS
BRI owns and manages multi-family housing in the form of garden, mid-rise,
and high-rise apartment complexes and buildings. The properties are rental units
where tenants pay a monthly rent which averaged $673 per unit as of August 31,
1998. The complexes are located in municipalities which have not instituted rent
controls or restrictions. These are primarily "market rate" apartments primarily
aimed at middle income tenants, although certain units are rented to low income
and upper income families. BRI also owns and operates seven complexes which have
tax-exempt bond financing in place. This type of financing requires that 20
percent of the units in each complex be rented to families that make no more
than 80 percent of the area median income. Other than these properties, there
are no rent restricted properties.
The BRI holdings are primarily garden apartment complexes. The typical
complex is located in a suburban neighborhood on the outskirts of a major or
mid-sized city. The neighborhoods are typically in the growth phase, or at
minimum the stable phase, based on current demographic information. The
complexes have multiple buildings of two to three stories on campus-like
settings with well landscaped acreage.
The buildings are typically wood frame structures with stucco or clapboard
exterior walls and composition shingle roofs. The apartment units and common
areas are served by electric or gas fueled package unit HVAC; electric and
natural gas for cooking, and public water and sewer supply. All buildings meet
local fire code standards providing smoke alarms and fire extinguishers.
Hallways are carpeted and common areas frequently include swimming pools and
playgrounds, as well as clubhouses with recreation areas.
The apartment units are often one-, two-, and three-bedroom units with a
living room, dining room, and kitchen. They generally contain one to three
bathrooms. Tenants primarily pay monthly rent for an unfurnished apartment to
BRI plus a monthly electric and gas bill directly to the local utility company
for HVAC and interior lighting. BRI typically incurs the cost of providing water
and trash pick-up to the unit.
Two of the complexes, Berkshire Towers in Silver Spring, Maryland and River
Oaks in Houston, Texas, are high-rise properties which differ physically from
the garden properties but are generally operated and managed in a similar way.
These properties do however, command higher monthly rents than the garden
properties in their immediate areas and have achieved higher stabilized
occupancy rates.
I-4
<PAGE>
[LOGO]
APPRAISAL METHODOLOGY
Cushman & Wakefield, Inc. and its affiliates were retained to estimate the
market value of each BRI property as of October 15, 1998. The self-contained
appraisal reports are subject to the assumptions and limiting conditions
contained within each report. The properties were appraised individually,
assuming they were managed by a third party management company. Our appraised
values assume a typical marketing period of twelve months consistent with local
market conditions as reflected in sales of comparable apartment complexes in
each respective market area. Our appraisers employed at least two of the three
traditional approaches to value in their reports, most typically the Sales
Comparison Approach and the Income Capitalization Approach. The properties under
construction, in addition to the Sales and Income Capitalization Approaches,
included the Cost Approach to value.
In the Sales Comparison Approach, our appraisers searched the local market
area for recent sales of comparable apartment complexes. They then analyzed
those sales on the basis of sales price per square foot, sale price per unit,
and the effective gross income multiplier (EGIM). The appraisers correlated the
various value indications into a point estimate from within the range indicated
by the comparable sales.
In developing the Income Capitalization Approach, our appraisers studied
rents in effect in each BRI complex and competing complexes to estimate
potential rental income at market levels. They also included an estimate of
income from sources other than apartment rentals such as laundry income, vending
machine income, and forfeited deposits. The next step in this approach included
an analysis of recent history of operating expenses at the properties and
competing properties in comparison to the BRI budget to estimate an appropriate
level of stabilized expenses and reserves for unit replacement and capital
items. Our appraisers then estimated net operating income by subtracting
stabilized expenses from potential gross income and capitalized the stabilized
net operating income into an indication of capital value. The capitalization
rate employed was based upon prevailing going-in rates abstracted from an
analysis of recent comparable apartment complex sales.
The second phase of the Income Capitalization Approach involved the
application and preparation of a discounted cash flow analysis in which the
estimated income and expenses are analyzed over a ten year forecast period and
the estimated property value at the time of reversion are discounted at an
appropriate rate to estimate present market value. The discount rate employed in
the discounted cash flow analysis was based upon responses to recent surveys of
investors who employ this methodology. The BRI property holdings are primarily
"market rate" apartment complexes and buildings whose rental income will
fluctuate over time depending upon economic conditions in each local market area
as well as competitive supply and demand. In our experience, the direct
capitalization method utilized within the Income Capitalization Approach is the
most common method employed by investors, whether leveraged or unleveraged, who
would seek to buy these assets if placed on the market for sale. In light of
this factor, our appraisers typically concluded at a market value estimate based
upon the direct capitalization method while given consideration to the
conclusions reached by the Sales Comparison Approach and the discounted cash
flow analysis.
COMPLIANCE WITH APPRAISAL STANDARDS AND EXISTING FINANCING
We estimated market value in conformance with the Uniform Standards of
Professional Appraisal Practice, as well as Title XI of the Financial
Institution's Reform, Recovery, and Enforcement Act of 1989 (FIRREA) which
assume a sale price under terms equivalent to cash. Our appraisers employed, as
an underwriting guide, both Federal National Mortgage Association and Federal
Home Loan Bank Board appraisal standards. Consistent with our compliance with
generally accepted appraisal standards, we disregarded existing financing
encumbering the properties which are prepayable. There are however,
I-5
<PAGE>
[LOGO]
eight properties within the BRI holdings which have non-prepayable debt. The
mortgagees are typically the Housing and Urban Development Department (HUD) or
tax exempt bond holders. Our appraisers considered the terms and conditions of
these mortgages in concluding at their final value estimates for each of the
eight properties. Overall, the effect on market value of these eight mortgages
was not material.
DISCUSSIONS AND CONCLUSIONS
The BRI holdings are either Class A or Class B apartment complexes and
buildings located in four regions of the United States. The neighborhoods in
which the properties are located are most often improving subdistricts that are,
at minimum, stable areas. Physically, the properties, both externally and
internally, are in good condition. The buildings are well maintained along with
landscaped public areas with only minor amounts of deferred maintenance noted by
our appraisers and reflected in BRI's capital expenditure budgets on the
effective date of value. Management seems to be responsive to problems and
efficient in their operation of the properties. The BRI holdings have an average
monthly rent of $673 per unit with average operating expenses before reserves of
$2,869 per unit. The average occupancy of the properties was 97.8 percent. These
statistics are reflective of well managed multi-family property and are within
the range found in other apartment complexes which are owned by competing public
companies.
FINAL VALUE ESTIMATES
The final value estimates for these properties total $1,278,650,000. This
represents the sum of the individual market value estimates for each property
and does not represent a bulk value or sale price of the portfolio. The property
list and market value conclusions, as referenced in our complete self-contained
appraisal reports, are exhibited on the following pages.
Respectfully submitted,
Cushman & Wakefield, Inc.
/s/ DOUGLAS H. LARSON
- ----------------------------
Associate Director
Valuation Advisory Services
/s/ MATTHEW C. MONDANILE, MAI
- ----------------------------
Matthew C. Mondanile, MAI
Senior Director
Valuation Advisory Services
I-6
<PAGE>
[LOGO]
BERKSHIRE REALTY COMPANY PORTFOLIO
<TABLE>
<CAPTION>
PROPERTY NAME CITY STATE MARKET VALUE
- ----------------------------------------------------------------- --------------- ----- --------------
<S> <C> <C> <C> <C>
1. Arborview............................................. Belcamp MD $ 20,500,000
2. Liriope............................................... Belcamp MD $ 6,400,000
3. Calvert's Walk........................................ Belair MD $ 17,500,000
4. Ridgeview Chase....................................... Westminster MD $ 14,400,000
5. The Berkshire Towers High Rise........................ Silver Spring MD $ 65,300,000
6. Westchester........................................... Silver Spring MD $ 20,000,000
7. Courtleigh............................................ Baltimore MD $ 16,100,000
8. Coventry.............................................. Baltimore MD $ 7,000,000
9. Diamond Ridge......................................... Baltimore MD $ 5,700,000
10. Heraldy Square........................................ Baltimore MD $ 12,600,000
11. Estates............................................... Pikesville MD $ 14,200,000
12. Fairway Ridge......................................... Baltimore MD $ 9,500,000
13. Hazelcrest............................................ Baltimore MD $ 1,400,000
14. Hilltop............................................... Baltimore MD $ 1,200,000
15. Jamestowne............................................ Baltimore MD $ 11,500,000
16. Kingwood Common I..................................... Baltimore MD $ 10,200,000
17. Kingwood Common II.................................... Baltimore MD $ 10,500,000
18. Old Forge............................................. Baltimore MD $ 9,100,000
19. Rolling Wind.......................................... Baltimore MD $ 22,000,000
20. Stratton Meadows...................................... Baltimore MD $ 15,700,000
21. The Channel (Heritage Hill)........................... Glen Burnie MD $ 7,100,000
22. The Cove (Washington Square).......................... Glen Burnie MD $ 11,200,000
23. The Lighthouse (Lamplighter).......................... Glen Burnie MD $ 11,200,000
24. Harpers Mill.......................................... Glen Burnie MD $ 9,100,000
25. Warren Park........................................... Baltimore MD $ 7,400,000
26. Williston............................................. Baltimore MD $ 3,500,000
27. Granite Run........................................... Baltimore MD $ 25,500,000
28. Altamonte Bay Club.................................... Altamonte FL $ 11,250,000
29. Arbor Keys (Seven Winds).............................. Tamarac FL $ 12,600,000
30. Woodland Meadows...................................... Tamarac FL $ 15,500,000
31. Berkshire West (Polos West)........................... Winter Garden FL $ 10,950,000
32. Lakes at Jacaranda.................................... Plantation FL $ 23,400,000
33. Plantation Colony..................................... Plantation FL $ 17,000,000
34. Lynn Lake............................................. St. Petersburg FL $ 28,700,000
35. Newport............................................... Tampa FL $ 12,900,000
36. Park Colony........................................... Hollywood FL $ 20,750,000
37. Sunchase.............................................. Bradenton FL $ 6,500,000
38. Arbors at Breckinridge................................ Duluth GA $ 33,100,000
39. Avalon on Abernathy................................... Atlanta GA $ 16,900,000
40. Essex House........................................... Atlanta GA $ 7,940,000
41. River Parkway......................................... Atlanta GA $ 25,900,000
42. Highlands @ Briarcliff................................ Atlanta GA $ 9,100,000
43. Huntington Chase...................................... Norcross GA $ 25,940,000
44. Pines @ Dunwoody...................................... Atlanta GA $ 20,700,000
45. The Berkshires @ Deerfield I.......................... Atlanta GA $ 6,500,000
</TABLE>
I-7
<PAGE>
[LOGO]
<TABLE>
<CAPTION>
PROPERTY NAME CITY STATE MARKET VALUE
- ----------------------------------------------------------------- --------------- ----- --------------
<S> <C> <C> <C> <C>
46. British Woods......................................... Nashville TN $ 11,270,000
47. Highland Ridge........................................ Madison TN $ 8,200,000
48. Windover.............................................. Knoxville TN $ 10,200,000
49. Benchmark............................................. Irving TX $ 12,300,000
50. Huntington Ridge...................................... Irving TX $ 9,900,000
51. Berkshire Springs (Country Wood)...................... Dallas TX $ 9,000,000
52. Berkshire @ Addison (Summer Place).................... Addison TX $ 9,600,000
53. Golfside.............................................. Haltom City TX $ 10,500,000
54. Hunters Glen.......................................... Plano TX $ 13,700,000
55. Huntington Brook...................................... Dallas TX $ 15,100,000
56. Huntington Lake....................................... Dallas TX $ 21,300,000
57. Indigo on Forest...................................... Dallas TX $ 57,000,000
58. Pleasant Woods........................................ Dallas TX $ 9,200,000
59. Prescott Place........................................ Mesquite TX $ 11,100,000
60. Prescott Place II..................................... Mesquite TX $ 12,900,000
61. Providence............................................ Dallas TX $ 9,500,000
62. Sweetwater Ranch...................................... Richardson TX $ 21,200,000
63. Cumberland Cove....................................... Raleigh NC $ 38,500,000
64. East Lake Village..................................... Charlotte NC $ 10,200,000
65. The Timbers........................................... Charlotte NC $ 16,600,000
66. Berkshires @ Crooked Creek............................ Durham NC $ 22,000,000
67. Berkshire Commons I................................... Clemson SC $ 15,100,000
68. Inglesby Site......................................... Greenville SC $ 3,650,000
69. Garlington Road Site.................................. Greenville SC $ 1,500,000
70. Brookfield Trace/The Berkshires....................... Mauldin SC $ 18,200,000
71. The Oaks.............................................. Mauldin SC $ 7,800,000
72. Brookwood Valley...................................... Mauldin SC $ 10,200,000
73. Stoneledge............................................ Greenville SC $ 12,400,000
74. Huntington Downs...................................... Greenville SC $ 23,800,000
75. Roper Mountain........................................ Greenville SC $ 8,800,000
76. 6200 Gessner.......................................... Houston TX $ 13,700,000
77. River Oaks High Rise.................................. Houston TX $ 17,500,000
78. Berkshire Crossing (The Lodge)........................ Houston TX $ 6,500,000
79. Yortown............................................... Houston TX $ 29,000,000
80. Kingwood Crossing..................................... Houston TX $ 15,750,000
81. Kingwood Lakes........................................ Houston TX $ 15,150,000
82. Berkshire Hills (Pinto Ridge)......................... Austin TX $ 10,900,000
83. The Bluffs of Berkshire............................... Austin TX $ 17,800,000
84. Carlyle Place......................................... San Antonio TX $ 8,900,000
85. Oaks of Marymont...................................... San Antonio TX $ 12,900,000
86. Southpoint............................................ Massapequa NY $ 18,400,000
--------------
TOTAL............................................................ $1,278,650,000
--------------
--------------
</TABLE>
I-8
<PAGE>
[LOGO]
ASSUMPTIONS AND LIMITING CONDITIONS
"Appraisal" means the appraisal report and opinion of value stated therein, or
the letter opinion of value, to which these Assumptions and Limiting Conditions
are annexed.
"Property" means the subject of the Appraisal.
"C&W" means Cushman & Wakefield, Inc. or its subsidiary which issued the
Appraisal.
"Appraiser(s)" means the employee(s) of C&W who prepared and signed the
Appraisal.
The Appraisal has been made subject to the following assumptions and limiting
conditions:
1. No opinion is intended to be expressed and no responsibility is assumed for
the legal description or for any matters which are legal in nature or
require legal expertise or specialized knowledge beyond that of a real
estate appraiser. Title to the Property is assumed to be good and marketable
and the Property is assumed to be free and clear of all liens unless
otherwise stated. No survey of the Property was undertaken.
2. The information contained in the Appraisal or upon which the Appraisal is
based has been gathered from sources the Appraiser assumes to be reliable
and accurate. Some of such information may have been provided by the owner
of the Property. Neither the Appraiser nor C&W shall be responsible for the
accuracy or completeness of such information, including the correctness of
estimates, opinions, dimensions, sketches, exhibits and factual matters.
3. The opinion of value is only as of the date stated in the Appraisal. Changes
since that date in external and market factors or in the Property itself can
significantly affect property value.
4. The Appraisal is to be used in whole and not in part. No part of the
Appraisal shall be used in conjunction with any other appraisal. Publication
of the Appraisal or any portion thereof without the prior written consent of
C&W is prohibited which consent has been given with respect to the proxy
statement to be sent to shareholders. Except as may be otherwise stated in
the letter of engagement, the Appraisal may not be used by any person other
than the party to whom it is addressed or for purposes other than that for
which it was prepared. No part of the Appraisal shall be conveyed to the
public through advertising, or used in any sales or promotional material
without C&Ws prior written consent. Reference to the Appraisal Institute or
to the MAI designation is prohibited.
5. Except as may be otherwise stated in the letter of engagement, the Appraiser
shall not be required to give testimony in any court or administrative
proceeding relating to the Property or the Appraisal.
6. The Appraisal assumes (a) responsible ownership and competent management of
the Property; (b) there are no hidden or unapparent conditions of the
Property, subsoil or structures that render the Property more or less
valuable (no responsibility is assumed for such conditions or for arranging
for engineering studies that may be required to discover them); (c) full
compliance with all applicable federal, state and local zoning and
environmental regulations and laws, unless noncompliance is stated, defined
and considered in the Appraisal; and (d) all required licenses, certificates
of occupancy and other governmental consents have been or can be obtained
and renewed for any use on which the value estimate contained in the
Appraisal is based.
7. The physical condition of the improvements considered by the Appraisal is
based on visual inspection by the Appraiser or other person identified in
the Appraisal. C&W assumes no
I-9
<PAGE>
[LOGO]
responsibility for the soundness of structural members nor for the condition
of mechanical equipment, plumbing or electrical components.
8. The forecasted potential gross income referred to in the Appraisal may be
based on lease summaries provided by the owner or third parties. The
Appraiser assumes no responsibility for the authenticity or completeness of
lease information provided by others. C&W recommends that legal advice be
obtained regarding the interpretation of lease provisions and the
contractual rights of parties.
9. The forecasts of income and expenses are not predictions of the future.
Rather, they are the Appraiser's best estimates of current market thinking
on future income and expenses. The Appraiser and C&W make no warranty or
representation that these forecasts will materialize. The real estate market
is constantly fluctuating and changing. It is not the Appraiser's task to
predict or in any way warrant the conditions of a future real estate market;
the Appraiser can only reflect what the investment community, as of the date
of the Appraisal, envisages for the future in terms of rental rates,
expenses, supply and demand.
10. Unless otherwise stated in the Appraisal, the existence of potentially
hazardous or toxic materials which may have been used in the construction or
maintenance of the improvements or may be located at or about the Property
was not considered in arriving at the opinion of value. These materials
(such as formaldehyde foam insulation, asbestos insulation and other
potentially hazardous materials) may adversely affect the value of the
Property. The Appraisers are not qualified to detect such substances. C&W
recommends that an environmental expert be employed to determine the impact
of these matters on the opinion of value.
11. Unless otherwise stated in the Appraisal, compliance with the requirements
of the Americans With Disabilities Act of 1990 (ADA) has not been considered
in arriving at the opinion of value. Failure to comply with the requirements
of the ADA may adversely affect the value of the Property. C&W recommends
that an expert in this field be employed.
I-10
<PAGE>
[LOGO]
CERTIFICATION OF APPRAISAL
We certify that, to the best of our knowledge and belief:
1. The undersigned did not inspect each of the properties which are the subject
of this report. The reader is referred to each individual report for names
of those professionals who performed the inspections.
2. The reported analyses, opinions, and conclusions are limited only by the
reported assumptions and limiting conditions, and are our personal, unbiased
professional analyses, opinions, and conclusions.
3. We have no present or prospective interest in the property that is the
subject of this report, and we have no personal interest or bias with
respect to the parties involved.
4. Our compensation is not contingent upon the reporting of a predetermined
value or direction in value that favors the cause of the client, the amount
of the value estimate, the attainment of a stipulated result, or the
occurrence of a subsequent event. The appraisal assignment was not based on
a requested minimum valuation, a specific valuation or the approval of a
loan.
5. No one provided significant professional assistance to the persons signing
this report.
6. Our analyses, opinions, and conclusions were developed, and this report has
been prepared, in conformity with the Uniform Standards of Professional
Appraisal Practice of the Appraisal Foundation and the Code of Professional
Ethics and the Standards of Professional Appraisal Practice of the Appraisal
Institute.
7. The use of this report is subject to the requirements of the Appraisal
Institute relating to review by its duly authorized representatives.
8. As of the date of this report, Matthew C. Mondanile has completed the
requirements of the continuing education program of the Appraisal Institute.
<TABLE>
<S> <C>
/S/ DOUGLAS H. LARSON /S/ MATTHEW C. MONDANILE
- --------------------------------- ---------------------------------
Douglas H. Larson Matthew C. Mondanile, MAI
Associate Director Senior Director
Valuation Advisory Services Valuation Advisory Services
</TABLE>
I-11
<PAGE>
[LOGO]
[LOGO]
June 2, 1999
Berkshire Realty Company, Inc.
One Beacon Street, Suite 1550
Boston, MA 02108
Attn: David F. Marshall
President and Chief Executive Officer
Re: Appraisal of Real Property
Real Estate Assets of Berkshire
Realty Company, Inc., a publicly
traded Real Estate Investment Trust
Dear Mr. Marshall:
In response to your letter dated June 2, 1999 in which you requested a
"bring down" letter which states that the property values set forth in the
appraisals are fair and accurate as of January 1, 1999, we have performed the
following:
1. Discussed market conditions effective January 1, 1999 including occupancy
rates, market rental rates, and capitalization rates with C&W's appraisers
responsible for the appraisal values.
2. Investigated economic statistics including, but not limited to, mortgage
interest rates, unemployment rates and changes in the consumer price index,
effective January 1, 1999.
3. Interviewed Berkshire Realty Company, Inc. executives with regard to any
retrospective or prospective material adverse changes in the properties as
of January 1, 1999. These material adverse changes would include physical,
functional, financial or economic conditions at each property.
Our complete appraisal reports on the above referenced properties, dated
October 15, 1998, including assumptions and limiting conditions ("original
appraisal") are an integral part of this letter and are incorporated by
reference.
This is a restricted report in that it does not contain the data, reasoning,
or analysis upon which our value conclusion is based. The details of our
analyses and findings will be retained in our files as required by the Uniform
Standards of Professional Appraisal Practice to which we are subject. This
report can only be relied upon by a reader familiar with the original
appraisals. In reviewing this update, the reader should consider it in the
context of the original appraisals.
[LOGO]
I-12
<PAGE>
[LOGO]
Mr. David F. Marshall
President and Chief Executive Officer
Based upon these independent investigations and representations made to us
in your June 2, 1999 letter, we are of the opinion that the market values as
estimated in our appraisals effective October 15, 1998, were fair and accurate
as of January 1, 1999.
Respectfully submitted,
Cushman & Wakefield, Inc.
[SIGNATURE]
Mathew C. Mondanile, MAI
Senior Director
Valuation Advisory Services
MCM:ew
cc: Brian R. Corcoran
John D. Busi
I-13
<PAGE>
APPENDIX J
<TABLE>
<S> <C>
[LOGO] [LOGO]
</TABLE>
August 12, 1999
Berkshire Realty Holdings, L.P.
One Beacon Street, Suite 1500
Boston, MA 02108
Re: Appraisal of Real Property
Twenty Two (22) Real Estate Assets of
Berkshire Realty Company, Inc. ("BRI")
Ladies and Gentlemen:
In fulfillment of our agreement as outlined in the Letter of Engagement,
Cushman & Wakefield, Inc. and its affiliates are pleased to transmit a summary
appraisal estimating the market value of the fee simple estate in the referenced
real property. This appraisal is a summary of our conclusions as stated in each
of our complete, self-contained reports on each asset. Our complete,
self-contained reports that detail our analyses, and valuation conclusions have
been delivered to you under separate cover. The value conclusions stated within
this report are subject to the assumptions and limiting conditions attached and
those contained in each individual report.
This report is intended to comply with the reporting requirements set forth
under Standards Rule 2-2 (c) of the Uniform Standards of Professional Appraisal
Practice for a complete summary appraisal report. As such, it does not include a
discussion of data, reasoning and analyses that were used in the appraisal
process to develop the appraisers' opinion of value. Reliance upon this report
by the client, is limited to the extent that we have not included supporting
data nor our work files. However, supporting data has been included in our
complete, self-contained reports which you have received under separate cover.
The effective date of value is July 1, 1999. The properties which are the
subject of this report were inspected at various dates during the months of June
and July 1999 by the preparers of each individual report. This summary report
was prepared by Douglas H. Larson and Matthew C. Mondanile, MAI, while the
self-contained appraisal reports were prepared by Cushman & Wakefield Valuation
Advisory Services personnel of the various affiliates of Cushman & Wakefield,
Inc.
The purpose of this appraisal is to estimate the market value of the fee
simple estate, as of the valuation date. The function of the report is for the
internal business decisions of Berkshire Realty Holdings, L.P. ("BRH"). This
report may also be furnished to BRH's partners. The definition of market value,
taken from Uniform Standards of Professional Appraisal Practice of the Appraisal
Foundation, is presented as follows:
The most probable price which a property should bring in a competitive and
open market under all conditions requisite to a fair sale, the buyer and
seller, each acting prudently and knowledgeably, and assuming the price is
not affected by undue stimulus. Implicit in this definition is the
consummation of a sale as of a specified date and the passing of title from
seller to buyer under conditions whereby:
1. Buyer and seller are typically motivated;
2. Both parties are well informed or well advised, and acting in what they
consider their own best interests;
J-1
[LOGO]
<PAGE>
[LOGO]
Berkshire Realty Holding, L.P. August 12, 1999
3. A reasonable time is allowed for exposure in the open market;
4. Payment is made in terms of cash in US dollars or in terms of financial
arrangements comparable thereto; and
5. The price represents the normal consideration for the property sold
unaffected by special or creative financing or sales concessions granted
by anyone associated with the sale.
EXPOSURE TIME
Under Paragraph 3 of the Definition of Market Value, the value estimate
presumes that "A reasonable time is allowed for exposure in the open
market". Exposure time is defined as the estimated length of time the
property interest being appraised would have been offered on the market
prior to the hypothetical consummation of a sale at the market value on the
effective date of the appraisal. Exposure time is presumed to precede the
effective date of the appraisal.
Based on our research of recent sales of apartment complexes considered to
be reasonably comparable to those contained within BRH portfolio, as well as
our discussions with local brokers and buyers/sellers of multi-family
projects, we have concluded that the probable exposure time for the
properties would have been approximately twelve months. In fact, the
majority of the apartment sales included within our self-contained appraisal
reports, were exposed on the market for a period of approximately six to
twelve months prior to closing. Thus, the aforementioned exposure time
appears reasonable.
The following definitions of pertinent terms are taken from the DICTIONARY
OF REAL ESTATE APPRAISAL, THIRD EDITION (1993), published by the APPRAISAL
INSTITUTE.
FEE SIMPLE ESTATE
Absolute ownership unencumbered by any other interest or estate, subject
only to the limitations imposed by the governmental powers of taxation,
eminent domain, police power, and escheat.
DIRECT CAPITALIZATION
1. A method used to convert an estimate of a single year's income
expectancy into an indication of value in one direct step, either by
dividing the income estimate by an appropriate rate or by multiplying the
income estimate by an appropriate factor.
2. A capitalization technique that employs capitalization rates and
multipliers extracted from sales. Only the first year's income is
considered. Yield and value change are implied, but not identified.
DISCOUNTED CASH FLOW ANALYSIS
The procedure in which a discount rate is applied to a set of projected
income streams and a reversion. The analyst specifies the quantity,
variability, timing, and duration of the income streams as well as the
quantity and timing of the reversion and discounts each to its present value
at a specified yield rate. Discounted Cash Flow Analysis can be applied with
any yield capitalization technique and may be performed on either a
lease-by-lease or aggregate basis.
MARKET VALUE AS IS ON APPRAISAL DATE
The value of specific ownership rights to an identified parcel of real
estate as of the effective date of the appraisal; related to what physically
exists and is legally permissible and excludes all assumptions concerning
hypothetical market conditions or possible rezoning.
PROSPECTIVE VALUE ON REACHING STABILIZED OCCUPANCY
The value of a property as of a point in time when all improvements have
been physically constructed and the property has been leased to its optimum
level of long term occupancy. At such
J-2
<PAGE>
[LOGO]
Berkshire Realty Holding, L.P. August 12, 1999
point, all capital outlays for tenant improvements, leasing commissions,
marketing costs, and other carrying charges are assumed to have been
absorbed.
In preparing our self-contained appraisal reports, Cushman & Wakefield
personnel inspected each of the properties. Our appraisers were able to inspect
those areas of the properties and immediate area that would be inspected during
the course of a typical appraisal assignment. We reviewed economic and
demographic trends for each market, taking into account the impact of both the
existing competitive inventory and proposed additions to the market. We have
also compiled and analyzed recent market sales, as well as projecting future
anticipated income and expenses. During the course of their research and
analysis, our appraisers concluded that each property's highest and best use is
its existing or proposed use, multi-family construction.
PROPERTY DESCRIPTIONS
BHR expects to acquire all of the assets of BRI, including the properties
subject to this report. BRI owns and manages multi-family housing in the form of
garden, mid-rise, and high-rise apartment complexes and buildings. The complexes
are located in municipalities which have not instituted rent controls or
restrictions. These are primarily "market rate" apartments primarily aimed at
middle income tenants, although certain units are rented to low income and upper
income families.
The BRI holdings are primarily garden apartment complexes. The typical
complex is located in a suburban neighborhood on the outskirts of a major or
mid-sized city. The neighborhoods are typically in the growth phase, or at
minimum the stable phase, based on current demographic information. The
complexes have multiple buildings of two to three stories on campus-like
settings with well landscaped acreage.
The buildings are typically wood frame structures with stucco or clapboard
exterior walls and composition shingle roofs. The apartment units and common
areas are served by electric or gas fueled package unit HVAC; electric and
natural gas for cooking, and public water and sewer supply. All buildings meet
local fire code standards providing smoke alarms and fire extinguishers.
Hallways are carpeted and common areas frequently include swimming pools and
playgrounds, as well as clubhouses with recreation areas.
The apartment units are often one-, two-, and three-bedroom units with a
living room, dining room, and kitchen. They generally contain one to three
bathrooms. Tenants primarily pay monthly rent for an unfurnished apartment to
BRI plus a monthly electric and gas bill directly to the local utility company
for HVAC and interior lighting. BRI typically incurs the cost of providing water
and trash pick-up to the unit.
One of the complexes, Berkshire Towers in Silver Spring, Maryland is a
high-rise property which differs physically from the garden properties but is
generally operated and managed in a similar way. The property does however,
command higher monthly rents than garden properties in its immediate area and
has achieved higher stabilized occupancy rates.
APPRAISAL METHODOLOGY
Cushman & Wakefield, Inc. and its affiliates were retained to estimate the
market value of each BRI property as of July 1, 1999. The self-contained
appraisal reports are subject to the assumptions and limiting conditions
contained within each report. The properties were appraised individually,
assuming they were managed by a third party management company. Our appraised
values assume a typical marketing period of twelve months consistent with local
market conditions as reflected in sales of comparable apartment complexes in
each respective market area. Our appraisers employed at least two of the three
traditional approaches to value in their reports, most typically the Sales
Comparison Approach and the Income Capitalization Approach. The properties under
construction, in addition to the Sales and Income Capitalization Approaches,
included the Cost Approach to value.
In the Sales Comparison Approach, our appraisers searched the local market
area for recent sales of comparable apartment complexes. They then analyzed
those sales on the basis of sales price per square foot, sale price per unit,
and the effective gross income multiplier (EGIM). The appraisers
J-3
<PAGE>
[LOGO]
Berkshire Realty Holding, L.P. August 12, 1999
correlated the various value indications into a point estimate from within the
range indicated by the comparable sales.
In developing the Income Capitalization Approach, our appraisers studied
rents in effect in each BRI complex and competing complexes to estimate
potential rental income at market levels. They also included an estimate of
income from sources other than apartment rentals such as laundry income, vending
machine income, and forfeited deposits. The next step in this approach included
an analysis of recent history of operating expenses at the properties and
competing properties in comparison to the BRI budget to estimate an appropriate
level of stabilized expenses and reserves for unit replacement and capital
items. Our appraisers then estimated net operating income by subtracting
stabilized expenses from potential gross income and capitalized the stabilized
net operating income into an indication of capital value. The capitalization
rate employed was based upon prevailing going-in rates abstracted from an
analysis of recent comparable apartment complex sales.
The second phase of the Income Capitalization Approach involved the
application and preparation of a discounted cash flow analysis in which the
estimated income and expenses are analyzed over a ten year forecast period and
the estimated property value at the time of reversion are discounted at an
appropriate rate to estimate present market value. The discount rate employed in
the discounted cash flow analysis was based upon responses to recent surveys of
investors who employ this methodology. The BRI property holdings are primarily
"market rate" apartment complexes and buildings whose rental income will
fluctuate over time depending upon economic conditions in each local market area
as well as competitive supply and demand. In our experience, the direct
capitalization method utilized within the Income Capitalization Approach is the
most common method employed by investors, whether leveraged or unleveraged, who
would seek to buy these assets if placed on the market for sale. In light of
this factor, our appraisers typically concluded at a market value estimate based
upon the direct capitalization method while given consideration to the
conclusions reached by the Sales Comparison Approach and the discounted cash
flow analysis.
COMPLIANCE WITH APPRAISAL STANDARDS AND EXISTING FINANCING
We estimated market value in conformance with the Uniform Standards of
Professional Appraisal Practice, as well as Title XI of the Financial
Institution's Reform, Recovery, and Enforcement Act of 1989 (FIRREA) which
assume a sale price under terms equivalent to cash. Our appraisers employed, as
an underwriting guide, both Federal National Mortgage Association and Federal
Home Loan Bank Board appraisal standards.
DISCUSSIONS AND CONCLUSIONS
The BRI holdings are either Class A or Class B apartment complexes and
buildings located in four regions of the United States. The neighborhoods in
which the properties are located are most often improving subdistricts that are,
at minimum, stable areas. Physically, the properties, both externally and
internally, are in good condition. The buildings are well maintained along with
landscaped public areas with only minor amounts of deferred maintenance noted by
our appraisers and reflected in BRI's capital expenditure budgets on the
effective date of value. Management seems to be responsive to problems and
efficient in their operation of the properties. The BRI holdings have an average
occupancy of approximately 97 percent. This statistic is reflective of well
managed multi-family property and is within the range found in other apartment
complexes which are owned by competing companies.
FINAL VALUE ESTIMATES
The final value estimates for these properties total $342,340,000. This
represents the sum of the individual market value estimates for each property
and does not represent a bulk value or sale price
J-4
<PAGE>
[LOGO]
Berkshire Realty Holding, L.P. August 12, 1999
of the portfolio. The property list and market value conclusions, as referenced
in our complete self-contained appraisal reports, are exhibited on the following
page.
Respectfully submitted,
Cushman & Wakefield, Inc.
/S/ DOUGLAS H. LARSON
Douglas H. Larson
Associate Director
Valuation Advisory Services
MATTHEW C. MONDANILE
Matthew C. Mondanile, MAI
Senior Director
Valuation Advisory Services
<TABLE>
<CAPTION>
NO. COMMUNITY NAME CITY STATE ADDRESS UNITS MARKET VALUE
- --------- ---------------------------- -------------- --------- ---------------------------- --------- -------------
<S> <C> <C> <C> <C> <C> <C>
1 Berkshire Towers at Silver Silver Springs MD 11215 Oakleaf Drive 1,119 $ 65,700,000
Springs
2 Calvert's Walk Belair MD 200 Foxhall Drive 276 $ 18,700,000
3 Fairway Ridge Baltimore MD 5000 West Forest Park Avenue 274 $ 10,600,000
4 Hazelcrest Baltimore MD 19 A-1 Warren Park Drive 48 $ 1,500,000
5 Heraldry Square Baltimore MD 2340 Noonham Road 270 $ 13,400,000
6 Jamestowne Baltimore MD 5364 Jamestown Court 335 $ 11,800,000
7 Kingswood Common I Baltimore MD 2420 Bibury Lane 203 $ 10,400,000
8 Kingswood Common II Baltimore MD 2564 Barnesley Place 203 $ 10,900,000
9 Warren Park Baltimore MD 19 A-1 Warren Park Drive 200 $ 7,800,000
10 Williston Baltimore MD 5364 Jamestown Court 98 $ 3,700,000
11 Courtleigh Baltimore MD 2564 Barnesley Place 280 $ 16,300,000
12 Coventry Baltimore MD 2564 Barnesley Place 122 $ 7,100,000
13 Olde Forge White Marsh MD 1 Olde Forge Lane 144 $ 9,600,000
14 Rolling Wind Baltimore MD 2420 Bibury Lane 280 $ 22,400,000
15 Stratton Meadows Baltimore MD 2 Heatherton Court 268 $ 16,100,000
16 Kings Crossing Kingwood TX 4545 Kingwood Drive 404 $ 17,000,000
17 Kingwood Lakes Kingwood TX 3700 Kingwood Drive 390 $ 16,000,000
18 Plantation Colony Plantation FL 8210 S.W. 12th Street 256 $ 17,200,000
19 River Parkway Atlanta GA 4545 River Parkway 427 $ 26,800,000
20 Berkshires at Dunwoody Atlanta GA 501 North River Parkway 389 $ 22,100,000
21 Highlands at Briarcliff Atlanta GA 2735 Briarcliff Road 140 $ 9,300,000
22 Essex House Atlanta GA 102 Essex Avenue 120 $ 8,140,000
-------------
Total $ 342,340,000
-------------
-------------
</TABLE>
J-5
<PAGE>
[LOGO]
ASSUMPTIONS AND LIMITING CONDITIONS
"Appraisal" means the appraisal report and opinion of value stated therein,
or the letter opinion of value, to which these Assumptions and Limiting
Conditions are annexed.
"Property" means the subject of the Appraisal.
"C&W" means Cushman & Wakefield, Inc. or its subsidiary which issued the
Appraisal.
"Appraiser(s)" means the employee(s) of C&W who prepared and signed the
Appraisal.
The Appraisal has been made subject to the following assumptions and
limiting conditions:
1. No opinion is intended to be expressed and no responsibility is assumed for
the legal description or for any matters which are legal in nature or
require legal expertise or specialized knowledge beyond that of a real
estate appraiser. Title to the Property is assumed to be good and marketable
and the Property is assumed to be free and clear of all liens unless
otherwise stated. No survey of the Property was undertaken.
2. The information contained in the Appraisal or upon which the Appraisal is
based has been gathered from sources the Appraiser assumes to be reliable
and accurate. Some of such information may have been provided by the owner
of the Property. Neither the Appraiser nor C&W shall be responsible for the
accuracy or completeness of such information, including the correctness of
estimates, opinions, dimensions, sketches, exhibits and factual matters.
3. The opinion of value is only as of the date stated in the Appraisal. Changes
since that date in external and market factors or in the Property itself can
significantly affect property value.
4. The Appraisal is to be used in whole and not in part. No part of the
Appraisal shall be used in conjunction with any other appraisal. Publication
of the Appraisal or any portion thereof without the prior written consent of
C&W is prohibited which consent has been given with respect to the proxy
statement to be sent to BRI shareholders, the consent solicitation/offering
memorandum to be sent to holders of units of BRI OP Limited Partnership and
any required filings with the Securities and Exchange Commission relating
thereto. Except as provided above or as may be otherwise stated in the
letter of engagement, the Appraisal may not be used by any person other than
the party to whom it is addressed or for purposes other than that for which
it was prepared. No part of the Appraisal shall be conveyed to the public
through advertising, or used in any sales or promotional material without
C&W's prior written consent. Reference to the Appraisal Institute or to the
MAI designation is prohibited.
5. Except as may be otherwise stated in the letter of engagement, the Appraiser
shall not be required to give testimony in any court or administrative
proceeding relating to the Property or the Appraisal.
6. The Appraisal assumes (a) responsible ownership and competent management of
the Property; (b) there are no hidden or unapparent conditions of the
Property, subsoil or structures that render the Property more or less
valuable (no responsibility is assumed for such conditions or for arranging
for engineering studies that may be required to discover them); (c) full
compliance with all applicable federal, state and local zoning and
environmental regulations and laws, unless noncompliance is stated, defined
and considered in the Appraisal; and (d) all required licenses, certificates
of occupancy and other governmental consents have been or can be obtained
and renewed for any use on which the value estimate contained in the
Appraisal is based.
7. The physical condition of the improvements considered by the Appraisal is
based on visual inspection by the Appraiser or other person identified in
the Appraisal. C&W assumes no responsibility for the soundness of structural
members nor for the condition of mechanical equipment, plumbing or
electrical components.
J-6
<PAGE>
[LOGO]
8. The forecasted potential gross income referred to in the Appraisal may be
based on lease summaries provided by the owner or third parties. The
Appraiser assumes no responsibility for the authenticity or completeness of
lease information provided by others. C&W recommends that legal advice be
obtained regarding the interpretation of lease provisions and the
contractual rights of parties.
9. The forecasts of income and expenses are not predictions of the future.
Rather, they are the Appraiser's best estimates of current market thinking
on future income and expenses. The Appraiser and C&W make no warranty or
representation that these forecasts will materialize. The real estate market
is constantly fluctuating and changing. It is not the Appraiser's task to
predict or in any way warrant the conditions of a future real estate market;
the Appraiser can only reflect what the investment community, as of the date
of the Appraisal, envisages for the future in terms of rental rates,
expenses, supply and demand.
10. Unless otherwise stated in the Appraisal, the existence of potentially
hazardous or toxic materials which may have been used in the construction or
maintenance of the improvements or may be located at or about the Property
was not considered in arriving at the opinion of value. These materials
(such as formaldehyde foam insulation, asbestos insulation and other
potentially hazardous materials) may adversely affect the value of the
Property. The Appraisers are not qualified to detect such substances. C&W
recommends that an environmental expert be employed to determine the impact
of these matters on the opinion of value.
11. Unless otherwise stated in the Appraisal, compliance with the requirements
of the Americans With Disabilities Act of 1990 (ADA) has not been considered
in arriving at the opinion of value. Failure to comply with the requirements
of the ADA may adversely affect the value of the Property. C&W recommends
that an expert in this field be employed.
J-7
<PAGE>
Mr. David J. Olney October 8, 1998
Berkshire Realty Company, Inc. (NYSE-BRI)
CERTIFICATION OF APPRAISAL
We certify that, to the best of our knowledge and belief:
1. The undersigned did not inspect each of the properties which are the subject
of this report. The reader is referred to each individual report for names
of those professionals who performed the inspections.
2. The reported analyses, opinions, and conclusions are limited only by the
reported assumptions and limiting conditions, and are our personal, unbiased
professional analyses, opinions, and conclusions.
3. We have no present or prospective interest in the property that is the
subject of this report, and we have no personal interest or bias with
respect to the parties involved.
4. Our compensation is not contingent upon the reporting of a predetermined
value or direction in value that favors the cause of the client, the amount
of the value estimate, the attainment of a stipulated result, or the
occurrence of a subsequent event. The appraisal assignment was not based on
a requested minimum valuation, a specific valuation or the approval of a
loan.
5. No one provided significant professional assistance to the persons signing
this report.
6. Our analyses, opinions, and conclusions were developed, and this report has
been prepared, in conformity with the Uniform Standards of Professional
Appraisal Practice of the Appraisal Foundation and the Code of Professional
Ethics and the Standards of Professional Appraisal Practice of the Appraisal
Institute.
7. The use of this report is subject to the requirements of the Appraisal
Institute relating to review by its duly authorized representatives.
8. As of the date of this report, Matthew C. Mondanile has completed the
requirements of the continuing education program of the Appraisal Institute.
<TABLE>
<S> <C>
/s/ DOUGLAS H. LARSON /s/ MATTHEW C. MONDANILE
- --------------------------------- ---------------------------------
Douglas H. Larson Matthew C. Mondanile
Associate Director Senior Director
Valuation Advisory Services Valuation Advisory Services
</TABLE>
J-8
<PAGE>
BERKSHIRE REALTY COMPANY, INC.
PROXY FOR THE SPECIAL MEETING OF STOCKHOLDERS CONCERNING THE MERGER AND
ADOPTION OF THE MERGER AGREEMENT
TO BE HELD __________, 1999
The undersigned, having received notice of the Special Meeting of
Stockholders and the Board of Directors' proxy statement therefor, and
revoking all prior proxies, hereby appoint(s) David F. Marshall and Scott D.
Spelfogel, and each of them, attorneys or attorney of the undersigned (with
full power of substitution in them and each of them) for and in the name(s)
of the undersigned to attend the Special Meeting of Stockholders of BERKSHIRE
REALTY COMPANY, INC. (the "Company") to be held on _________, 1999 at 10:00
a.m. at the offices of Hale and Dorr LLP, 60 State Street, Boston,
Massachusetts, and any adjournments thereof, and there to vote and act upon
the following matters in respect of all shares of common and preferred stock
of the Company which the undersigned may be entitled to vote or act upon,
with all the powers the undersigned would possess if personally present.
CONTINUED AND TO BE SIGNED ON THE REVERSE SIDE
<PAGE>
SPECIAL MEETING OF STOCKHOLDERS CONCERNING THE MERGER AND
ADOPTION OF THE MERGER AGREEMENT
BERKSHIRE COMPANY, INC.
__________, 1999
Whether or not you plan to attend the Special Meeting, you are urged to
complete, date, sign and return this Proxy in the accompanying envelope.
Please Detach and Mail in the Envelopes Provided
A /X/ PLEASE MARK YOUR
VOTES AS INDICATED
IN THIS SAMPLE
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS OF THE COMPANY
AND SHOULD BE RETURNED AS SOON AS POSSIBLE.
A VOTE "FOR" APPROVAL OF THE MERGER AND ADOPTION OF THE MERGER AGREEMENT
- -----------------------------------------------------------------------------
IS RECOMMENDED BY THE BOARD OF DIRECTORS.
- -----------------------------------------
THIS PROXY, WHEN PROPERLY EXECUTED, WILL BE VOTED IN THE MANNER DIRECTED
BY THE UNDERSIGNED STOCKHOLDER(S). IF NO OTHER INDICATION IS MADE, THE
PROXIES SHALL VOTE "FOR" APPROVAL OF THE MERGER AND ADOPTION OF THE MERGER
AGREEMENT, AS RECOMMENDED BY THE BOARD OF DIRECTORS. ATTENDANCE OF THE
UNDERSIGNED AT THE MEETING OR AT ANY ADJOURNMENT THEREOF WILL NOT BE DEEMED
TO REVOKE THIS PROXY UNLESS THE UNDERSIGNED GIVES AFFIRMATIVE NOTICE OF
REVOCATION.
1. To approve the merger of BRI Acquisition, LLC FOR AGAINST ABSTAIN
(the "Acquiror") with and into the Company or, // // //
at the election of Berkshire Realty Holdings, L.P. (the "Parent"), the
merger of the Company with and into the Parent, and to adopt the Agreement
and Plan of Merger, dated as of April 13, 1999, by and among the Parent,
the Acquiror and the Company.
2. Other Business: In their discretion, the proxy holders are authorized to
vote upon such other matters as may properly come before the meeting or any
adjournments thereof.
<TABLE>
<S> <C> <C>
MARK HERE MARK HERE
FOR ADDRESS IF YOU PLAN
CHANGE AND // TO ATTEND //
NOTE AT LEFT THE MEETING
Signature:________________________ Signature if held jointly________________________ Dated:_________, 1999
</TABLE>
NOTE: PLEASE SIGN EXACTLY AS NAME APPEARS HEREON. WHEN SHARES ARE HELD BY
JOINT OWNERS, BOTH SHOULD SIGN. WHEN SIGNED AS ATTORNEY, EXECUTOR,
ADMINISTRATOR, TRUSTEE OR GUARDIAN, PLEASE GIVE FULL TITLE AS SUCH. IF A
CORPORATION, PLEASE SIGN IN FULL CORPORATE NAME BY AUTHORIZED OFFICER, GIVING
FULL TITLE. IF A PARTNERSHIP, PLEASE SIGN IN PARTNERSHIP NAME BY AUTHORIZED
PERSON, GIVING FULL TITLE.
