INTERESTS UNDER THIS AGREEMENT SHALL OCCUR SIMULTANEOUSLY WITH THE
MERGER, AS DEFINED IN THE MERGER AGREEMENT, AT 10:00 A.M., EASTERN TIME, AT THE
OFFICES OF DLA PIPER US LLP AT 6225 SMITH AVENUE, BALTIMORE, MARYLAND 21209, OR
AT SUCH OTHER PLACE, AT SUCH OTHER TIME, OR ON SUCH OTHER DATE AS THE PARTIES
MAY MUTUALLY AGREE UPON IN WRITING (SUCH DATE, THE "CLOSING DATE").
6.
CLOSING DOCUMENTS.
AT THE CLOSING, SELLER AND BUYER SHALL EACH
EXECUTE AND DELIVER TO THE OTHER AN ASSIGNMENT OF MEMBERSHIP/BENEFICIAL/
PARTNERSHIP INTERESTS AND AMENDMENT TO OPERATING AGREEMENT/DECLARATION OF
TRUST/PARTNERSHIP AGREEMENT WITH RESPECT TO EACH OF THE NPI ENTITIES IN THE FORM
ATTACHED HERETO AS EXHIBIT B AND, UPON REQUEST OF EITHER PARTY, SUCH OTHER
DOCUMENTS AS MAY BE REASONABLY NECESSARY OR REQUESTED TO CONSUMMATE THE
TRANSACTION CONTEMPLATED BY THIS AGREEMENT.
7.
PRORATIONS AND ADJUSTMENTS.
AT CLOSING, INCOME AND EXPENSES WITH
RESPECT TO THE MEMBERSHIP INTERESTS AND TRUST INTERESTS SHALL BE ADJUSTED AND
PRORATED AS OF MIDNIGHT OF THE DAY PRIOR TO THE CLOSING DATE IN THE MANNER
PROVIDED FOR IN SECTION 8.04 OF THE MERGER AGREEMENT.
THERE SHALL BE NO
ADJUSTMENT WITH RESPECT TO THE PARTNERSHIP INTERESTS, AS THE ADJUSTMENTS FOR THE
UNDERLYING PROPERTIES SHALL OCCUR AT THE CLOSING UNDER THE MERGER AGREEMENT NOT
UNDER THIS AGREEMENT.
8.
REPRESENTATIONS AND WARRANTIES.
IT IS INTENDED BY SELLER AND
BUYER THAT THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THE MERGER AGREEMENT
SHALL BE THE SOLE REPRESENTATIONS AND WARRANTIES RELATING TO THE PROPERTIES AND
THE NPI ENTITIES, THAT SUCH REPRESENTATIONS AND WARRANTIES SHALL REMAIN IN FULL
FORCE AND EFFECT AND BINDING UPON THE PARTIES TO THE MERGER AGREEMENT AS
PROVIDED UNDER MERGER AGREEMENT, AND THAT SELLER IS NOT MAKING ANY
REPRESENTATIONS OR WARRANTIES IN RESPECT THEREOF.
4
9.
TERMINATION.
THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE IF THE
MERGER AGREEMENT SHALL HAVE TERMINATED FOR ANY REASON PRIOR TO THE CLOSING DATE.
10.
CONDITIONS TO CLOSING.
THE BUYER'S OBLIGATIONS TO BE PERFORMED AT
THE CLOSING SHALL BE SUBJECT TO THE SATISFACTION OF THE FOLLOWING CONDITIONS:
(a)
There shall not have been a breach of any warranty, representation
or covenant as given by NVI in the Merger Agreement relating to the NPI Entities
or the Properties;
(b)
The NPI Entities shall own good and marketable title to the
Properties free and clear of all liens and encumbrances, other than the
Permitted Liens (as defined in the Merger Agreement);
(c)
NPI shall own all of the Ownership Interests free and clear of all
liens and encumbrances; and
(d)
None of the Properties shall be encumbered by any mortgage
indebtedness other than the Woods Property (in which case the maximum amount of
indebtedness as of Closing shall be $11,391,579) and the Rivers Property (in
which case the maximum amount of indebtedness as of Closing shall be $3,213,010)
and the Nottingham Associates Property (in which case the maximum amount of
indebtedness as of Closing shall be $5,631,974).
If any condition precedent to Closing set forth above is not satisfied prior to
or on the Closing