EXHIBIT 2.2
FIRST AMENDMENT TO AGREEMENT OF PURCHASE AND SALE
THIS FIRST AMENDMENT TO AGREEMENT OF PURCHASE AND SALE (this "First
Amendment") is made effective as of the 29th day of September, 2004, by and
between Essex The Crest, L.P., a California limited partnership, Essex El
Encanto Apartments, L.P., a California limited partnership, Essex Xxxx Club
Apartments, L.P., a California limited partnership, Essex Rosebeach Apartments,
L.P., a California limited partnership, Essex Andover Park Apartments, L.P., a
California limited partnership, Essex Rivermark Apartments, L.P., a California
limited partnership, Essex Arboretum Apartments, L.P., a California limited
partnership, Essex Ocean Villa Apartments, L.P., a California limited
partnership, Essex Carlsbad Apartments, L.P., a California limited partnership,
Essex San Xxxxx Xxxxxx Apartments, L.P., a California limited partnership, Essex
San Dimas Canyon Apartments, L.P., a California limited partnership, Essex
Huntington Beach Apartments, L.P., a California limited partnership, Essex Xxxxx
Xxxxxxx Apartments, L.P., a California limited partnership, Newport Beach North
LLC, a Delaware limited liability company, Newport Beach South LLC, a Delaware
limited liability company, and Essex Woodland Apartments, L.P., a California
limited partnership (each such entity being known individually as "Seller" and
collectively all such entities shall hereinafter be known as "Sellers"), and
United Dominion Realty, L.P., a Delaware limited partnership (together with its
successors and permitted assigns, "Buyer").
RECITALS
A. Sellers and Purchaser are parties to that certain Agreement of
Purchase and Sale dated as of August 13, 2004 (the "Agreement"), whereby the
Sellers have agreed to sell and the Purchasers have agreed to purchase certain
real and personal property located in the states of California and Oregon and
more particularly described therein.
X. Xxxxxxx and Purchaser desires to modify the Agreement to, among
other things, provide for expedited Closing with respect to certain of the
Properties, as more fully set forth herein.
C. Defined terms used and not otherwise defined herein shall have the
meanings assigned to such terms in the Agreement.
NOW, THEREFORE, in consideration of the foregoing, of the covenants,
promises and undertakings set forth herein, and for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Sellers and Purchaser agree as follows:
1.1 Bifurcation of Initial Closing Date.
(a) Notwithstanding any contrary provisions of the Agreement,
including, without limitation, Sections 2.4 and 5.2(a) thereof, Sellers
and Purchaser have agreed to that the Closing of the Properties listed
on Exhibit "A" attached hereto (the "Early Closing Properties") shall
occur on September 30, 2004 (the "Early Closing Date").
(b) In furtherance of the provisions of Section 1.1(a) above, all
references in the Agreement to the "Initial Closing Date", other than
the references in Section 2.2(a)(i) of the Agreement, shall hereafter
be deemed to refer to the Early Closing Date to the
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extent such references apply to the Early Closing Properties. Without
limiting the generality of the foregoing:
(i) The Initial Closing Deposit shall continue to be applied
at the Initial Closing Date in accordance with Section 2.2(a)(i) of the
Agreement.
(ii) Notwithstanding the provisions of Section 2.3(a) of the
Agreement, with respect to the Early Closing and the Early Closing
Properties only, not later than one (1) day prior to the Initial
Closing, Buyer shall deposit with Escrow Holder in good, "same-day"
funds at par an amount equal to the sum of the Purchase Prices
allocated to the Early Closing Properties, together with any and all
amounts, if any, necessary to pay any and all prorations and/or
expenses to be paid by Buyer under the terms of this Agreement with
respect to the Early Closing Properties (including any amounts of any
nature and related expenses payable under the loan documents relating
to any Repayment Loans encumbering such Properties, which Escrow Holder
shall cause to be paid to such Lender), less (i) any prorations or
other amounts to be credited to Buyer under the terms of this Agreement
with respect to such Properties, and (ii) the then current principal
balance of the Assumed Loans encumbering such Properties. Nothing
herein shall be construed as limiting the provisions of Section
2.3(a)(i) of the Agreement as it applies to the remaining Properties to
be included in the Initial Closing.
(iii) Notwithstanding the provisions of Section 2.4 of the
Agreement, the parties acknowledge and agree that it is the intention
of the parties that all of the Properties, other than the Coronado
South Property and the Rivermark Property (which shall be sold and
purchased upon satisfaction of the conditions set forth in Sections
5.8(b) and 5.8(c) of the Agreement, respectively) be purchased and sold
simultaneously on the Early Closing Date (in the case of the Early
Closing Properties) and on the Initial Closing Date (with respect to
the remaining Properties) and that the same is a condition precedent to
the parties obligations under this Agreement, except as expressly
provided otherwise in the Agreement (including in Sections 2.5(b), 3.3,
4.2 and 5.8 and Article VI of the Agreement). The Closing of the
Properties, other than the Coronado South Property, the Rivermark
Property, any Deferred Property, any Property with respect to which
Buyer's obligation to purchase is terminated in accordance with the
express provisions of the Agreement (including in Sections 3.3, 4.2 and
5.8 and Article VI of the Agreement), shall continue to be referred to
herein and in the Agreement as the "Initial Closing."
(iv) Notwithstanding the provisions of Section 8.1(f), the
number of Vacant Units in each of the Early Closing Properties shall be
determined on the day prior to the Early Closing Date.
(v) Except as set forth in the immediately preceding
provisions of this Section 1.1, all references in the Agreement to the
Initial Closing Date shall remain unchanged.
(c) Except as set forth in Section 1.1(a) above, the Closing Dates
for all Properties other than the Early Closing Properties (as defined
hereinabove) shall remain unchanged. Specifically, the Closings of the
remaining Properties, other than any
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Property for which the Closing is deferred in accordance with Sections
2.5(b) or 3.3 or Article VI of the Agreement, the Coronado South
Property and the Rivermark Property, shall occur on the Initial Closing
Date as set forth in Section 5.2(a) of the Agreement. The Closings of
any Property for which the Closing is deferred in accordance with
Sections 2.5(b) or 3.3 or Article VI of the Agreement, the Coronado
South Property and the Rivermark Property shall occur on the dates set
forth in Sections 5.2(b), 5.2(c) and 5.2(d) of the Agreement,
respectively.
1.2 Delivery of Rivermark and Coronado Management Agreements.
Notwithstanding the provisions of Sections 5.3(a) and 5.3(b) of the Agreement,
Sellers and Buyer agree that on October 22, 2004 (the "Management Effective
Date"), the Sellers of the Coronado South Property and the Rivermark Property,
and Buyer (or its nominee) shall deliver to one another duly executed
counterparts to the Management Agreements, and that the Management Agreements
shall become effective as of the Management Effective Date. Notwithstanding the
provisions of Section 5.10 of the Agreement, not less than ten (10) days prior
to the Management Effective Date, Buyer and the Seller of the Rivermark Property
shall meet and agree upon the amount of the "Working Capital Reserve" and the
"Budget" described in the Management Agreement for the Rivermark Property.
1.3 Xxxxxx Property. Sellers and Buyer acknowledge that Buyer has
elected not to acquire the Xxxxxx Property pursuant to Section 4.2 of the
Agreement, and Xxxxx Xxxxxx Apartments, L.P. is no longer a "Seller" under the
Agreement.
1.4 Section 1031 Exchanges; Nominee for the Crest. Sellers acknowledge
that Buyer has elected to complete one or more like-kind exchanges within the
meaning of Section 1031 of the Internal Revenue Code of 1986, as amended, and
the Treasury Regulations promulgated thereunder, with respect to some or all of
the Properties (including the Early Closing Properties). Sellers agree to
reasonably cooperate with Buyer in facilitating such exchanges, including,
without limitation, by causing the Grant Deeds and other conveyance documents
required to be delivered pursuant to the Agreement to name certain nominees or
exchange trusts as the grantees and assignees thereunder; provided, however,
that Seller shall not be required to incur any liability or out-of-pocket
expense in connection with such exchange. Sellers also acknowledge that Buyer
has designated UDR the Crest, L.P. to take title to the Property known as "The
Crest at Xxxxxxxx Ranch." Such designation shall not relieve Buyer of its
liability under the Agreement.
1.5 No Other Modifications. Except as set forth in this Amendment, all
other terms and provisions of the Agreement shall remain unmodified hereby. The
Agreement, as modified herein, is hereby incorporated herein in its entirety and
a part hereof, and Sellers and Buyer hereby ratify the Agreement (as amended
hereby) and agree and acknowledge that the Agreement is in full force and
effect.
1.6 Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument. This Amendment shall be binding
upon Sellers and Buyer upon each party's delivery via telefacsimile of executed
counterparts of the signature page taken from identical counterparts of this
Amendment.
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IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the Effective Date.
BUYER:
United Dominion Realty, L.P., a Delaware limited
partnership
By: United Dominion Realty Trust, Inc., a Maryland
corporation, its General Partner
By: /s/ W. Xxxx Xxxxxx
-------------------------------------------
W. Xxxx Xxxxxx
Senior Executive Vice President
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SELLERS:
ESSEX THE CREST, L.P.
By: Essex Apartment Value Fund, L.P.,
a Delaware limited partnership,
its general partner
By: Essex VFGP, L.P.,
a Delaware limited partnership,
its general partner
By: Essex VFGP, Inc.,
a Delaware corporation,
its general partner
By: /s/ Jordan X. Xxxxxx
--------------------------
Its: Senior Vice President
ESSEX EL ENCANTO APARTMENTS, L.P.
By: Essex Apartment Value Fund, L.P.,
a Delaware limited partnership,
its general partner
By: Essex VFGP, L.P.,
a Delaware limited partnership,
its general partner
By: Essex VFGP, Inc.,
a Delaware corporation,
its general partner
By: /s/ Jordan X. Xxxxxx
--------------------------
Its: Senior Vice President
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ESSEX XXXX CLUB APARTMENTS, L.P.
By: Essex Apartment Value Fund, L.P.,
a Delaware limited partnership,
its general partner
By: Essex VFGP, L.P.,
a Delaware limited partnership,
its general partner
By: Essex VFGP, Inc.,
a Delaware corporation,
its general partner
By: /s/ Jordan X. Xxxxxx
--------------------------
Its: Senior Vice President
ESSEX ROSEBEACH APARTMENTS, L.P.
By: Essex Apartment Value Fund, L.P.,
a Delaware limited partnership,
its general partner
By: Essex VFGP, L.P.,
a Delaware limited partnership,
its general partner
By: Essex VFGP, Inc.,
a Delaware corporation,
its general partner
By: /s/ Jordan X. Xxxxxx
--------------------------
Its: Senior Vice President
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ESSEX ANDOVER PARK APARTMENTS, L.P.
By: Essex Apartment Value Fund, L.P.,
a Delaware limited partnership,
its general partner
By: Essex VFGP, L.P.,
a Delaware limited partnership,
its general partner
By: Essex VFGP, Inc.,
a Delaware corporation,
its general partner
By: /s/ Jordan X. Xxxxxx
--------------------------
Its: Senior Vice President
[Signatures Continued on Next Page]
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XXXXX XXXXXXXXX APARTMENTS, L.P.
By: Essex Apartment Value Fund, L.P.,
a Delaware limited partnership,
its general partner
By: Essex VFGP, L.P.,
a Delaware limited partnership,
its general partner
By: Essex VFGP, Inc.,
a Delaware corporation,
its general partner
By: /s/ Jordan X. Xxxxxx
--------------------------
Its: Senior Vice President
ESSEX ARBORETUM APARTMENTS, L.P.
By: Essex Apartment Value Fund, L.P.,
a Delaware limited partnership,
its general partner
By: Essex VFGP, L.P.,
a Delaware limited partnership,
its general partner
By: Essex VFGP, Inc.,
a Delaware corporation,
its general partner
By: /s/ Jordan X. Xxxxxx
--------------------------
Its: Senior Vice President
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ESSEX OCEAN VILLA APARTMENTS, L.P.
By: Essex Apartment Value Fund, L.P.,
a Delaware limited partnership,
its general partner
By: Essex VFGP, L.P.,
a Delaware limited partnership,
its general partner
By: Essex VFGP, Inc.,
a Delaware corporation,
its general partner
By: /s/ Jordan X. Xxxxxx
--------------------------
Its: Senior Vice President
ESSEX CARLSBAD APARTMENTS, L.P.
By: Essex Apartment Value Fund, L.P.,
a Delaware limited partnership,
its general partner
By: Essex VFGP, L.P.,
a Delaware limited partnership,
its general partner
By: Essex VFGP, Inc.,
a Delaware corporation,
its general partner
By: /s/ Jordan X. Xxxxxx
--------------------------
Its: Senior Vice President
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ESSEX SAN XXXXX XXXXXX APARTMENTS, L.P.
By: Essex Apartment Value Fund, L.P.,
a Delaware limited partnership,
its general partner
By: Essex VFGP, L.P.,
a Delaware limited partnership,
its general partner
By: Essex VFGP, Inc.,
a Delaware corporation,
its general partner
By: /s/ Jordan X. Xxxxxx
--------------------------
Its: Senior Vice President
ESSEX SAN DIMAS CANYON APARTMENTS, L.P.
By: Essex Apartment Value Fund, L.P.,
a Delaware limited partnership,
its general partner
By: Essex VFGP, L.P.,
a Delaware limited partnership,
its general partner
By: Essex VFGP, Inc.,
a Delaware corporation,
its general partner
By: /s/ Jordan X. Xxxxxx
--------------------------
Its: Senior Vice President
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ESSEX HUNTINGTON BEACH APARTMENTS, L.P.
By: Essex Apartment Value Fund, L.P.,
a Delaware limited partnership,
its general partner
By: Essex VFGP, L.P.,
a Delaware limited partnership,
its general partner
By: Essex VFGP, Inc.,
a Delaware corporation,
its general partner
By: /s/ Jordan X. Xxxxxx
--------------------------
Its: Senior Vice President
ESSEX XXXXX XXXXXXX APARTMENTS, L.P.
By: Essex Apartment Value Fund, L.P.,
a Delaware limited partnership,
its general partner
By: Essex VFGP, L.P.,
a Delaware limited partnership,
its general partner
By: Essex VFGP, Inc.,
a Delaware corporation,
its general partner
By: /s/ Jordan X. Xxxxxx
--------------------------
Its: Senior Vice President
NEWPORT BEACH NORTH, LLC
By: Newport Beach North, Inc.,
its managing member
By: /s/ Jordan X. Xxxxxx
------------------------------------
Its: Senior Vice President
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NEWPORT BEACH SOUTH, LLC
By: Newport Beach South, Inc.,
its managing member
By: /s/ Jordan X. Xxxxxx
------------------------------------
Its: Senior Vice President
ESSEX WOODLAND APARTMENTS, L.P.
By: Essex Apartment Value Fund, L.P.,
a Delaware limited partnership,
its general partner
By: Essex VFGP, L.P.,
a Delaware limited partnership,
its general partner
By: Essex VFGP, Inc.,
a Delaware corporation,
its general partner
By: /s/ Jordan X. Xxxxxx
--------------------------
Its: Senior Vice President
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JOINDER OF ESSEX APARTMENT VALUE FUND, L.P.
The undersigned, ESSEX APARTMENT VALUE FUND, L.P., a Delaware limited
partnership, hereby joins in this Amendment solely for the purpose of confirming
that it shall be jointly and severally liable to Buyer on a primary basis, and
not merely as a surety, for any and all obligations of the Sellers pursuant to
Sections 3.3, 4.2, 4.7, 5.6 and 5.8 of the Agreement, notwithstanding this
Amendment, which obligations (except to the extent survival of the same are
limited as to Sellers pursuant to such Sections) and this Joinder shall survive
the Closings and the recordation of the Deeds, and shall not be deemed merged
into such Deeds or the other documents and instruments delivered at such
Closing.
Essex Apartment Value Fund, L.P.,
a Delaware limited partnership,
its general partner
By: Essex VFGP, L.P.,
a Delaware limited partnership,
its general partner
By: Essex VFGP, Inc.,
a Delaware corporation,
its general partner
By: /s/ Jordan X. Xxxxxx
-------------------------------
Its: Senior Vice President
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JOINDER OF UNITED DOMINION REALTY TRUST
The undersigned, United Dominion Realty Trust, Inc., a Maryland
corporation, a Delaware limited partnership, hereby joins in this Amendment
solely for the purpose of confirming that it shall be jointly and severally
liable to Seller on a primary basis, and not merely as a surety, for any and all
obligations of the Buyer pursuant to Section 4.5 of the Agreement,
notwithstanding this Amendment, which obligations and this Joinder shall survive
the Closings and the recordation of the Deeds, and shall not be deemed merged
into such Deeds or the other documents and instruments delivered at such
Closing.
United Dominion Realty Trust, Inc., a Maryland
corporation
By: /s/ W. Xxxx Xxxxxx
-------------------------------------------
W. Xxxx Xxxxxx
Senior Executive Vice President
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EXHIBIT "A"
EARLY CLOSING PROPERTIES
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OWNER PROPERTY NAME*
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Essex Andover Park Apartments, L.P., Andover Park
a California limited partnership
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Essex The Crest, L.P., a California limited The Crest at Xxxxxxxx Ranch*
partnership
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Essex Woodland Apartments, L.P., a Foxborough (Woodlands)
California limited partnership
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Essex Xxxx Club Apartments, L.P., a Xxxx Club
California limited partnership
--------------------------------------------------------------------------------
Essex Huntington Beach Apartments, L.P., a Huntington Villas
California limited partnership
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Essex Rosebeach Apartments, L.P., a Rosebeach
California limited partnership
--------------------------------------------------------------------------------
Essex El Encanto Apartments, L.P., a Vista Del Rey (El Encanto)
California limited partnership
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*This Property is encumbered by an Assumed Loan.
