SIGNATURE COPY
PARTNERSHIP INTEREST
PURCHASE AND EXCHANGE AGREEMENT
This Partnership Interest Purchase and Exchange Agreement (the
"Agreement") is made and entered into as of September 10, 1998 by and among
the persons and entities listed on Exhibit A hereto (the "Contributors"),
the persons listed on Exhibit B hereto (the "Sellers" and, collectively
with the Contributors, the "Transferors"), United Dominion Realty Trust,
Inc., a Virginia corporation (the "Company") and United Dominion Realty,
L.P., a Virginia limited partnership (the "Company Operating Partnership").
RECITALS
WHEREAS, the Transferors are the legal and beneficial owners of
all of the limited partnership interests (the "AACLP Partnership
Interests") in American Apartment Communities II, L.P., a Delaware limited
partnership ("AACLP"), which owns and operates, directly and indirectly the
apartment communities set forth on Schedule 5A hereto (the "AAC
Properties");
WHEREAS, as an inducement to the Company to enter into an
Agreement and Plan of Merger (the "Merger Agreement") with American
Apartment Communities II, Inc., a Maryland corporation ("AAC"), whereby AAC
will merge with and into the Company (the "Merger") and thus benefit the
Contributors, the Contributors have agreed to contribute their respective
AACLP Partnership Interests to the Company Operating Partnership, and the
Company Operating Partnership desires to acquire the AACLP Partnership
Interests from the Contributors, as provided herein;
WHEREAS, in connection with the Merger, the Sellers have agreed
to sell their respective AACLP Partnership Interests to the Company for
cash, and the Company desires to acquire the AACLP Partnership Interests
from the Sellers, as provided herein;
WHEREAS, together with AAC, the Transferors own all of the
partnership interests in AACLP;
WHEREAS, the parties intend to provide certain protections for
the tax position of the Contributors pursuant to Section 5(c) hereof,
including American Apartment Communities Operating Partnership, L.P.,
Schnitzer Investment Corp. and AAC Management LLC (collectively, the "Tax
Partners"); and
WHEREAS, Section 3.2 of the Merger Agreement provides certain
assurances given to induce the Transferors to enter in this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the mutual
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the parties
hereto, the parties hereto do hereby agree as follows:
1. Contribution and Sale. (a) Pursuant to the terms hereof, the
Contributors hereby agree to contribute AACLP Partnership Interests to the
Company Operating Partnership free and clear of any and all restrictions on
transfer (other than restrictions under the Securities Act and state
securities laws), taxes, mortgages, liens, encumbrances, charges, pledges,
impositions, security interests, options, warrants, purchase rights, rights
of first refusal, contracts, commitments, equities, claims and demands
("Liens"), and the Company Operating Partnership hereby agrees to accept
such AACLP Partnership Interests from the Contributors, in exchange for an
aggregate amount of units of limited partnership interest in the Company
Operating Partnership (the "UDR Units") as set forth on Exhibit A (the
"Exchange Equity Consideration"). Any Contributor who receives UDR Units in
such exchange (a "UDR Unit Holder") shall, upon the issuance of such UDR
Units, be admitted as a limited partner of the Company Operating
Partnership and shall sign the Third Amended and Restated Agreement of
Limited Partnership of the Company Operating Partnership, in substantially
the form attached hereto as Exhibit D (the "Partnership Agreement").
(b) Pursuant to the terms hereof, the Sellers hereby agree to
sell AACLP Partnership Interests to the Company free and clear of any and
all Liens, and the Company hereby agrees to purchase such AACLP Partnership
Interests from the Sellers, for an aggregate amount of cash as set forth on
Exhibit B (the "Exchange Cash Consideration," and, together with the
Exchange Equity Consideration, the "Exchange Consideration"), subject to
adjustment as provided in Section 1(c) below.
(c) The Exchange Consideration shall be adjusted in accordance
with the provisions of Section 2.2 of the Merger Agreement. The allocation
of the Exchange Consideration among the Transferors shall be determined by
AACLP and AACLP shall provide such allocations to the Company on or before
the Closing Date.
2. Board Seat. Until the earlier of such time as: (a) Xxxxx X.
Xxxxxxxxx and his affiliates (including American Apartment Communities
Operating Partnership, L.P. and AAC Management, L.L.C.) no longer own at
least 50% of the aggregate UDR Units issued to such persons pursuant to
this Agreement or (b) Xx. Xxxxxxxxx reaches age 70, Xx. Xxxxxxxxx shall be
nominated for election to the Board of Directors of the Company. For the
purpose of the preceding sentence, any common stock of UDR issued upon
redemption of UDR Units by Xx. Xxxxxxxxx or his affiliates (and held by
such person on the date of determination) shall be counted toward the
number of UDR Units held by such persons. For so long as Xx. Xxxxxxxxx
continues to be nominated pursuant to this Section 2, he shall be deemed
for purposes of Section 5.8 of the Merger Agreement a nominee of the Holder
referred to therein.
3. Contributors' and Sellers' Representations and Warranties. Each
Transferor, severally and not jointly, hereby represents and warrants to
the Company and the Company Operating Partnership, as of the date hereof
and as of the Closing Date (as defined), with respect to the AACLP
Partnership Interests owned by such Transferor, respectively, as follows:
(a) With respect to each Transferor who is not an individual,
such Transferor (i) is a corporation/limited partnership/limited
liability company (as applicable) duly
formed, validly existing and in good standing under the laws of its
state of organization, (ii) has all requisite powers and all licenses,
authorizations, consents and approvals necessary to carry on its
business as now conducted, to own, lease and operate its properties,
to execute and deliver this Agreement and any document or instrument
required to be executed and delivered on behalf of such Transferor
hereunder, to perform its obligations under this Agreement and any
such other documents or instruments and to consummate the transactions
contemplated hereby, (iii) has duly executed and delivered this
Agreement and this Agreement constitutes a valid and binding
obligation of such Transferor, enforceable against such Transferor in
accordance with its terms and (iv) is the sole legal and beneficial
owner of its AACLP Partnership Interests, as applicable, and has the
full power and authority to contribute or sell such AACLP Partnership
Interests to the Company Operating Partnership or the Company, as the
case may be, pursuant to this Agreement.
(b) With respect to each Transferor who is an individual, such
person (i) has full legal right, power and authority to execute and
deliver this Agreement and any document or instrument required to be
executed and delivered on behalf of such Transferor hereunder, to
perform his or her obligations under this Agreement and any such other
documents or instruments and to consummate the transactions
contemplated hereby, (ii) has duly executed and delivered this
Agreement and this Agreement constitutes a valid and binding
obligation of such Transferor, enforceable against such Transferor in
accordance with its terms and (iii) is the sole legal and beneficial
owner of his AACLP Partnership Interests and has the full power and
authority to sell such AACLP Partnership Interests to the Company
pursuant to this Agreement.
(c) The AACLP Partnership Interests to be transferred pursuant to
this Agreement constitute any and all of such Transferor's interest in
AACLP, such Transferor owns such AACLP Partnership Interests free and
clear of any and all Liens, and the Transferors listed on Exhibits A
and B and AAC are the only equity owners of AACLP.
(d) There are no judgments of record or inchoate tax liens
against or relating to such Transferor or the AACLP Partnership
Interests; no acts of bankruptcy; nor any litigation or other
proceedings pending or threatened against or relating to such
Transferor or the AACLP Partnership Interests that would prevent the
consummation of the transactions contemplated by this Agreement.
(e) Such Transferor is not subject to any restriction, agreement,
law, judgment or decree that would prohibit or be violated by the
execution and delivery of this Agreement or by the consummation of the
transaction contemplated hereby.
(f) Such Transferor has obtained and has advised its partners or
members, as applicable, to obtain, from its and their own advisors
advice regarding the tax consequences of the transactions contemplated
by this Agreement and, in the case of Contributors, such Contributor
becoming a limited partner of the Company Operating
Partnership, and such Transferor has not relied on the Company, the
Company Operating Partnership or their advisors for such advice.
(g) Neither such Transferor nor any of the partners or members of
such Transferor is a "foreign person" within the meaning of Section
1445(b)(2) of the Internal Revenue Code of 1986, as amended (the
"Code").
(h) No Transferor has retained any real estate broker, business
broker, finder or other person entitled to a commission or other
compensation in connection with this transaction, except as set forth
in the Merger Agreement.
4. The Company's and the Company Operating Partnership's
Representations and Warranties. The Company and the Company Operating
Partnership hereby represent and warrant to the Contributors, as of the
date hereof and as of the Closing Date (as defined), that (a) each of the
Company and the Company Operating Partnership have the right and the power
to execute and deliver this Agreement and to perform their respective
obligations hereunder, and all necessary corporate and partnership action
with respect thereto has been duly and validly taken; each of the Company
and the Company Operating Partnership has duly executed and delivered this
Agreement and this Agreement constitutes a valid and binding obligation of
each of the Company and the Company Operating Partnership, enforceable
against each such entity in accordance with its terms; (b) subject to the
terms of the Investment Agreement in the form attached hereto as Exhibit C
and the terms of the Partnership Agreement, the UDR Units issued hereunder
shall be redeemable by the holders thereof for cash or, at the election of
the Company, exchangeable for Common Stock of the Company; and (c) neither
the Company nor the Company Operating Partnership has retained any real
estate broker, business broker, finder or other person entitled to a
commission or other compensation in connection with this transaction,
except as set forth in the Merger Agreement.
5. Covenants of the Company and the Company Operating Partnership. The
Company and the Company Operating Partnership hereby covenant with the
Contributors that for so long as at least 10% of the UDR Units issued to
the Contributors pursuant to this Agreement are outstanding and held by any
Contributor or a transferee of such Contributor in a substituted basis
transaction for federal income tax purposes (a "Permitted Transferee"), and
notwithstanding anything to the contrary in the Partnership Agreement, as
presently in effect or as amended from time to time,
(a) Section 704(c) Allocations. The Company and the Company Operating
Partnership will elect to use the "traditional method" described in
Treasury regulations Section 1.704-3(b) of making allocations under
Section 704(c) of the Code, with respect to the AAC Properties
identified in Schedule 5A.
(b) AAC Property Sales. (i) During the period ending on the twelfth
anniversary of the Closing Date, none of the AAC Properties identified
on Schedule 5B (or any property acquired in a like-kind exchange under
Section 1031 or 1033 of the Code in replacement thereof) ("Schedule 5B
Properties") will be sold, transferred or otherwise disposed of other
than in a transaction described in Section 1031 or Section 1033 of the
Code, or
other applicable non-recognition Code provision, in which no gain or
loss is recognized for federal income tax purposes (a "Non-Recognition
Transaction") and (ii) none of the AAC Properties identified in
Schedule 5C (or any property acquired in a like-kind exchange under
Section 1031 or 1033 of the Code in replacement thereof) ("Schedule 5C
Properties") will be sold, transferred or otherwise disposed of other
than in a Non-Recognition Transaction.
(c) AAC Property Refinancings.
(i) Except as otherwise provided in Sections 5(c)(ii) and
5(c)(iii), during the period ending on the twelfth anniversary of
the Closing Date with respect to the Schedule 5B Properties
(excluding Grandview Terrace, Sunset Village, Tivoli of Columbus,
and Mountain View), and indefinitely with respect to the Schedule
5C Properties ("Refinancing Period") (A) the existing mortgage
indebtedness encumbering such AAC Properties ("Existing
Indebtedness") or any replacement indebtedness assumed or taken
subject to in a Section 1031 Transaction ("Replacement
Indebtedness") will not be prepaid, (B) any Replacement
Indebtedness will be nonrecourse and secured solely by the
replacement property and (C) the Existing Indebtedness or
Replacement Indebtedness will not be converted from nonrecourse
indebtedness to recourse indebtedness, except that (I) regularly
scheduled periodic principal payments on Existing Indebtedness or
Replacement Indebtedness may be made and (II) Existing
Indebtedness or Replacement Indebtedness may be refinanced
provided the refinancing indebtedness ("Refinancing
Indebtedness") is (X) nonrecourse; (Y) does not require principal
repayments during such period which are greater than the payments
required on Existing Indebtedness during such period; and (Z) is
secured solely by the AAC Property or Properties which secure the
Existing Indebtedness or the Replacement Indebtedness which is
being refinanced. In addition, any Refinancing Indebtedness may
be refinanced provided any indebtedness which refinances
Refinancing Indebtedness shall satisfy all the requirements of
this Section 5(c)(i). The determination of whether indebtedness
is recourse or nonrecourse shall be determined under Section 752
of the Code.
(ii) If, during the Refinancing Period, the Company decides to
refinance or prepay the Existing Indebtedness or the Replacement
Indebtedness in a manner that is not in compliance with Section
5(c)(i), the Company will give written notice ("Refinancing
Notice") to each Tax Partner at least 60 days prior to such
refinancing or prepayment. Such Refinancing Notice must be given
with respect to each proposed refinancing or prepayment
transaction on a property-by-property basis. The Refinancing
Notice will describe which Existing Indebtedness or Replacement
Indebtedness is scheduled to be refinanced or prepaid, how much
of such Existing Indebtedness or Replacement Indebtedness is
scheduled to be refinanced or prepaid, and approximately when the
refinancing or prepayment is scheduled to occur. Upon receipt of
the Refinancing Notice, each
Tax Partner shall have the option (A) to guarantee debt of the
Company Operating Partnership (or enter into a reimbursement
agreement with the Company with respect to debt of the Company
Operating Partnership) in an amount that prevents such Tax
Partner from recognizing income or gain for federal income tax
purposes as a result of such refinancing or prepayment and/or (B)
to exercise immediately its Redemption Rights for the Cash
Amount, instead of the REIT Shares Amount (as those terms are
defined in the Partnership Agreement), with respect to a number
of UDR Units necessary to pay the federal and state income tax
liability associated with the income or gain that is recognized
as a result of such refinancing or prepayment. If such Tax
Partner elects to guarantee debt as described in this Section
5(c)(ii), the Company, the Company Operating Partnership and each
such Tax Partner agree to negotiate in good faith a guaranty
agreement or reimbursement agreement that is satisfactory to all
parties, provided, however, that the Company shall be required to
ensure that (i) such guaranty covers only the last dollars of
liability with respect to such debt ("bottom guarantee") and (ii)
there is a sufficient level of debt such that the bottom
guarantee will put such Tax Partner in the same position for
federal income tax purposes that it would have been in if the
refinancing or prepayment were not effected. If (A) the Company
does not receive written notice from a Tax Partner of its
election to guarantee debt or to exercise its Redemption Rights
as described in this Section 5(c)(ii) within 30 days after such
Tax Partner's receipt of the Refinancing Notice or (B) a Tax
Partner elects to exercise its Redemption Rights as described in
this Section 5(c)(ii), the Company's and the Company Operating
Partnership's obligations under Section 5(c)(i) with respect to
the Existing Indebtedness or the Replacement Indebtedness that is
scheduled to be refinanced or prepayment shall terminate;
provided, however, that under no circumstances may a Tax
Partner's action or inaction with respect to a Refinancing Notice
be deemed to be a waiver of, or consent with respect to, any
future Refinancing Notice relating to any future proposed
refinancing or prepayment transaction. Furthermore, a new
Refinancing Notice must be given with respect to each proposed
refinancing or prepayment transaction on each property
notwithstanding the fact that a prior refinancing or prepayment
transaction had taken place with respect to any indebtedness (or
portion of any indebtedness) secured by that property.
(iii) With respect to the Grandview Terrace, Sunset Village,
Tivoli of Columbus, and Mountain View AAC Properties, each Tax
Partner shall have the option on the Closing Date (A) to
guarantee debt of the Company Operating Partnership (or enter
into a reimbursement agreement with the Company with respect to
debt of the Company Operating Partnership) in an amount that
prevents any Tax Partner from recognizing income or gain for
federal income tax purposes as a result of the repayment of the
mortgage indebtedness encumbering such properties and/or (B) to
exercise immediately its Redemption Rights for the Cash Amount,
instead of the REIT Shares Amount (as those terms are defined in
the Partnership Agreement), with respect to a number of UDR Units
necessary to pay
the federal and state income tax liability associated with the
income or gain that is recognized as a result of such repayment.
If a Tax Partner elects to guarantee debt as described in this
Section 5(c)(iii), the Company, the Company Operating Partnership
and such Tax Partner agree to negotiate in good faith a guaranty
agreement or reimbursement agreement that is satisfactory to all
parties, provided, however, that the Company shall be required to
ensure that (i) such guaranty is a the bottom guarantee and (ii)
there is a sufficient level of debt such that the bottom
guarantee of which will put such Tax Partner in the same position
for federal income tax purposes that it would have been in if the
refinancing or prepayment were not effected.
(iv) Notwithstanding the foregoing, at any time in their sole
discretion, the partners or interest holders of any Tax Partner
may replace a reimbursement agreement with the Company with a
direct guaranty on substantially the same terms as such
reimbursement agreement.
(v) Notwithstanding anything to the contrary in this Agreement,
any Tax Partner may, in its sole discretion, at any time or from
time to time, and the Company shall provide such Tax Partner with
the opportunity to bottom guarantee debt of the Company Operating
Partnership (or enter into a reimbursement agreement with the
Company with respect to debt of the Company Operating
Partnership) in an amount that prevents such Tax Partner from
recognizing income or gain for federal income tax purposes.
(vi) Notwithstanding anything to the contrary in this Agreement,
the aggregate amount of indebtedness that the Company Operating
Partnership shall be required to make available for the Tax
Partners to bottom guarantee shall not exceed $200,000,000.
(d) Approval of Fundamental Transactions. Except pursuant to the prior
written consent of the holders of at least 66.66% of the
then-outstanding UDR Units issued to the Contributors pursuant to this
Agreement, neither the Company nor the Company Operating Partnership
may merge, consolidate or otherwise combine with or into any other
person, effect any reclassification, any recapitalization or change
its outstanding equity interests (other than a change in par value, or
from par value to no par value, or as a result of a subdivision or
combination of REIT Shares), or sell all or substantially all of its
assets (a "Fundamental Transaction") unless: (i) under the terms of
the Fundamental Transaction, the UDR Unit Holders will not recognize
any income or gain for Federal income tax purposes, either directly or
through allocation of such income or gain from the Company Operating
Partnership or any surviving entity; (ii) the UDR Unit Holders own a
percentage interest of the Company Operating Partnership or another
limited partnership or limited liability company that is the survivor
of the Fundamental Transaction with the Company Operating Partnership
(in each case, the "Surviving Partnership") based on the relative fair
market value of the net assets of the Company Operating Partnership
and the other net assets of the Surviving Partnership immediately
prior to the consummation of such Fundamental Transaction; and (iii)
the rights, preferences and privileges of the UDR Unit Holders in the
Surviving Partnership (including with respect to registration rights)
are at least as favorable as those in effect immediately prior to the
consummation of such Fundamental Transaction and as those applicable
to any other limited partners or non-managing members of the Surviving
Partnership and at least include the right to redeem their interests
in the Surviving Partnership for the Maximum Transaction Consideration
or an amount of cash equal to at least the value of the Maximum
Transaction Consideration. "Maximum Transaction Consideration" shall
mean an amount of cash, securities, or other property (or a
partnership interest or other security readily convertible into such
cash, securities, or other property) no less than the product of the
REIT Shares Amount (as defined in the Partnership Agreement) and the
greatest amount of cash, securities or other property (expressed as an
amount per REIT Share (as defined in the Partnership Agreement)) paid
in the Fundamental Transaction to the holder of one REIT Share in
consideration for one REIT Share; provided, that if, in connection
with the Fundamental Transaction, a purchase, tender or exchange offer
("Offer") shall have been made to and accepted by the holders of more
than 50 percent of the outstanding REIT Shares, "Maximum Transaction
Consideration" shall mean no less than the greatest amount of cash,
securities or other property they would have received had they (Y)
exercised their Redemption Right and (Z) sold, tendered or exchanged
pursuant to the Offer the REIT Shares received upon exercise of the
Redemption Right immediately prior to the expiration of the Offer.
The covenants of the Company and the Company Operating Partnership in this
Section 5 shall survive consummation of the transactions contemplated by
this Agreement and the Merger Agreement, any future transaction to which
the Company or the Company Operating Partnership is a party, including
without limitation, any Fundamental Transaction and any future transaction
of the kind referred to in the definition of "Change of Control" in Article
I of the Investment Agreement, whether or not such transaction results in a
"Change of Control," as so defined.
6. Investment Agreement. Concurrently with the execution and delivery
of this Agreement, each Contributor is executing and delivering to the
Company Operating Partnership an Investment Agreement in substantially the
form attached as Exhibit C.
7. Closing. The closing of the transaction contemplated hereby (the
"Closing") shall occur as soon as practicable after the Effective Time (as
defined in the Merger Agreement) on the date of the consummation of the
Merger (the "Closing Date"). At the Closing, each Transferor shall deliver
to the Company Operating Partnership, or the Company, as the case may be, a
duly-executed assignment, in form and substance satisfactory to the Company
Operating Partnership, to convey the AACLP Partnership Interests owned by
it to the Company Operating Partnership or the Company, as the case may be.
8. The Company's and Company Operating Partnership's Conditions to
Closing. Notwithstanding any other provision hereof, the obligations of the
Company and the
Company Operating Partnership to consummate the transactions contemplated
hereby shall be subject to the conditions, unless waived in writing, as of
the Closing, that i)" (i) each of the representations and warranties of
each of the Transferors contained herein shall remain true and correct as
of the date of this Agreement and the Closing Date, as though made on and
as of the Closing Date, ii)" (ii) each UDR Unit Holder shall have executed
an Investment Agreement substantially in the form attached as Exhibit C
hereto to the benefit of the Company Operating Partnership and iii)" (iii)
the Effective Time shall have occurred, (iv) each Contributor shall have
duly executed and delivered the Partnership Agreement substantially in the
form attached hereto as Exhibit D, (v) the Company and the Company
Operating Partnership shall acquire all of the AACLP Partnership Interests
and (vi) each Transferor shall have delivered to the Company and the
Company Operating Partnership a duly executed certificate setting forth
such Transferor's address and federal tax identification number and
certifying that such Transferor is not a "foreign person" within the
meaning of Section 1445(b)(2) of the Code.
9. Transferors' Conditions to Closing. Notwithstanding any other
provisions hereof, the obligation of the Transferors to proceed to
consummate the transaction contemplated hereby shall be subject to the
conditions, unless waived in writing, as of the Closing, that i)" (i) each
of the representations and warranties of the Company and the Company
Operating Partnership contained herein shall remain true and correct as of
the date of this Agreement and the Closing Date, as though made on and as
of the Closing Date, ii)" (ii) the Company Operating Partnership shall have
executed an Investment Agreement in the form attached as Exhibit C hereto
to the benefit of each UDR Unit Holder, iii)" (iii) each party to the
Partnership Agreement other than the Contributors shall have duly executed
and delivered the Partnership Agreement substantially in the form attached
hereto as Exhibit D and iv)" (iv) the Effective Time shall have occurred.
10. Indemnification. The warranties and representations set forth in
Sections 3 and 4 hereof shall survive the Closing. The Company and the
Company Operating Partnership, on one hand, and the Transferors, on the
other, hereby agree to indemnify, defend and hold each other harmless from
and against any and all loss, cost, damage, liability or expense
(including, without limitation, reasonable attorneys fees, court costs and
reasonable litigation expenses) that the other party may suffer, sustain or
incur as a result of, arising under or in connection with any breach of
warranty or agreement contained herein or any failure of performance
hereunder. The Transferors shall be severally and not jointly liable for
any amounts owed the Company or the Company Operating Partnership pursuant
to this Section 10. Further, except in the event of a breach of a covenant
set forth in Section 5 hereof by the Company or the Company Operating
Partnership, each Transferor, severally and not jointly, shall indemnify,
defend and save harmless the Company and the Company Operating Partnership
from and against all claims, liabilities and expenses which may be asserted
against either or either may incur and which are based upon or arise out of
the federal income tax consequences to such Transferor of the contribution
and/or sale of the AACLP Partnership Interests for UDR Units and/or cash or
any subsequent transaction effected by the Transferors relating to such UDR
Units or cash. The Transferors have no responsibility to indemnify the
Company or the Company Partnership for the consequence to the Company or
the Company Partnership of the transactions contemplated hereby.
11. Termination. This Agreement shall terminate and neither party
shall have any further liability hereunder at such time if the Merger
Agreement shall be terminated pursuant to Article VII thereof.
12. Notices. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be deemed
given if 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 the Company or the Company Operating Partnership, to:
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxxx, Executive Vice President
Fax: (000) 000-0000
with copies to:
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Attn: Xxxxxxxx X. Surface, Senior Vice President and
General Counsel
Fax: (000) 000-0000
and
HUNTON & XXXXXXXX
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxxxxxxxx, III
Fax: (000) 000-0000
b. if to the Transferors, to:
AMERICAN APARTMENT COMMUNITIES
OPERATING PARTNERSHIP, L.P.
000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxxx, Chief Executive Officer
Fax: (000) 000-0000
with copies to:
AMERICAN APARTMENT COMMUNITIES
OPERATING PARTNERSHIP, L.P.
00 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxx, Esq., General Counsel
Fax: (000) 000-0000
and
XXXXXX, XXXX & XXXXXXXX LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
and
SCHNITZER INVESTMENT CORP.
0000 Xx Xxxx
Xxxxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
13. Benefit. The rights and obligations of the parties hereto shall be
binding upon and shall inure to the benefit of such parties and their
respective heirs, executors, administrators, legal representatives,
successors and assigns.
14. Entire Agreement. This Agreement, along with the Merger Agreement
and the Investment Agreement, contain the entire agreement between the
parties hereto with respect to the subject matter hereof, and all prior
negotiations, understandings and agreements are merged herein. This
Agreement may not be modified or rescinded except pursuant to a written
instrument signed by the party against whom enforcement is sought.
15. Governing Law. This Agreement and the rights and obligations of
the parties hereto shall be governed by and construed in accordance with
the laws of the Commonwealth of Virginia, without regard to its conflicts
of laws provisions.
16. 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.
IN WITNESS WHEREOF, the parties hereto have executed this Partnership
Interest Purchase and Exchange Agreement as of the day and year first above
written.
THE COMPANY OPERATING PARTNERSHIP:
UNITED DOMINION REALTY, L.P.
BY: United Dominion Realty Trust, Inc.,
its General Partner
By:
-----------------------------------
Name:
Title:
THE COMPANY:
UNITED DOMINION REALTY TRUST, INC.:
By:
-----------------------------------
Name:
Title:
TRANSFERORS:
AMERICAN APARTMENT COMMUNITIES
OPERATING PARTNERSHIP, L.P., a
Delaware limited partnership
BY: American Apartment Communities, Inc.,
its General Partner
By:
-----------------------------------
Name:
Title:
AAC MANAGEMENT LLC, a Delaware
limited liability company
By:
-----------------------------------
Name:
Title:
FOX POINT LTD., an Ohio limited liability
company and successor to Xxxxxxxxx II
Limited Partnership, an Ohio limited
partnership
By:
-----------------------------------
Name:
Title:
SCHNITZER INVESTMENT CORP., an
Oregon corporation
By:
-----------------------------------
Name:
Title:
XXXXX X. XXXXXXXXX, an individual
----------------------------------------
SIGNATURE COPY
EXHIBIT A
CONTRIBUTORS AND AGGREGATE UNIT CONSIDERATION
Contributors
------------------------
American Apartment
Communities Operating
Partnership, L.P.
AAC Management LLC
Schnitzer Investment Corp.
Aggregate
Number of
UDR Units
to be Received
-------------------------
5,614,035
SIGNATURE COPY
EXHIBIT B
SELLERS AND AGGREGATE CASH CONSIDERATION
Sellers
------------------------------------
Fox Point Ltd.
Schnitzer Investment Corp.
Xxxxx X. Xxxxxxxxx
AAC Management LLC
Aggregate
Cash
to be Received
---------------------------
$9,210,678
SIGNATURE COPY
SCHEDULE 5A
All AAC Properties
1. Foothills Tennis Village
2. Pine Avenue
3. Silk Oak
4. Windward Point
5. Greensview
6. Doubletree
7. Clocktower
8. Crown Pointe
9. Hilltop
10. Hickory Creek
11. Regency Park South
12. Cold Springs Manor
13. 2900 Place
14. Lakewood
15. Nemoke Trail
16. Kings Gate
17. Ashton Pines
18. American Heritage
19. Xxxxxx'x Landing
20. Polo Chase
21. University Village
22. The Pointe at Northridge
23. The Pointe at Westlake
24. Xxxxxxx Plaza
25. Pine Grove
26. Boronda Manor
27. Capri
28. Laurel Tree
29. Old San Pablo
30. New San Pablo
31. Valli Hi
32. Xxxxxxx Park Townhomes
33. Garden Court
34. Xxxxxxxx
35. Glenridge
36. The Claremont
37. Lancaster Lakes
38. The Pointe at Xxxxxx Ranch
39. The Grand Resort
40. Sugar Mill Creek
41. Brandywine
42. Fountainhead
43. Grandview Xxxxxxxx
44. Sunset Village
45. Tivoli of Columbus
46. Mountain View
47. Lancaster Commons
48. Marina Playa
49. Birch Creek
50. Woodlake Village
51. International Village
52. University Park
53. Tualatin Heights
54. Governour's Square
55. Jamestown of St. Xxxxxxxx
56. Jamestown of Toledo
57. Northbay (Highlands of Marin)
58. Winterland (2000 Post)
59. Alexandria Executive Club*
60. Arlington Executive Club*
-------------------------
* Subject to Section 5.13 of the Merger Agreement
* Subject to Section 5.13 of the Merger Agreement
SIGNATURE COPY
SCHEDULE 5B
12 Year Properties
1. Fountainhead
2. Grandview Terrace
3. Sunset Village
4. Tivoli of Columbus
5. Mountain View
6. Lancaster Commons
7. Marina Playa
8. Birch Creek
9. Woodlake Village
10. International Village
11. University Park
12. Tualatin Heights
SIGNATURE COPY
SCHEDULE 5C
Other AAC Properties
1. Governour's Square
2. Jamestown of St. Xxxxxxxx
3. Jamestown of Toledo
4. Northbay (Highlands of Marin)
5. Winterland (2000 Post)
6. Alexandria Executive Club*
7. Arlington Executive Club*
SIGNATURE COPY
EXHIBIT C
[Form of Investment Agreement]
SIGNATURE COPY
EXHIBIT D
[Form of Third Amended and Restated Partnership Agreement]
