Exhibit 2.2
AMENDMENT NO. 1 TO
CONTRIBUTION AGREEMENT
This Amendment No. 1 to the Contribution Agreement ("Amendment No. 1") dated
November 18, 1997, is made and entered into by and between the TCR Signatories,
on the one hand, and BRE Properties, Inc., a Maryland corporation (the
"Company"), and BRE Property Investors LLC, a Delaware limited liability company
(the "Operating Company" and, together with the Company, the "Transferee"), on
the other hand, and amends the Contribution Agreement, dated as of September 29,
1997, by and between the TCR Signatories and the Transferee (the "Contribution
Agreement"). All capitalized terms used herein and not otherwise defined shall
have the meanings ascribed to such terms in the Contribution Agreement.
WHEREAS, the TCR Parties and the Transferee have entered into the
Contribution Agreement, which provides, among other things, for the transfer
from the TCR Parties to the Transferee of certain properties and related
assets in accordance with the terms and subject to the conditions of the
Contribution Agreement; and
WHEREAS, the TCR Parties and the Transferee desire to amend the
Contribution Agreement.
NOW, THEREFORE, the parties hereto do hereby agree as follows:
1. Transfer of Overlook at Blue Ravine to Blue Ravine LLC. The
parties hereto agree that Blue Ravine Realty Partners, as a Contributor under
the Contribution Agreement, shall convey to Blue Ravine Investors, LLC, a
Delaware limited liability company ("Blue Ravine LLC"), rather than to the
Operating Company, all of its Real Estate Property as set forth in Section 1.1
of the Contribution Agreement. At the Closing, Blue Ravine LLC shall issue and
deliver to the TCR Representatives the number of units of limited liability
company membership interest in Blue Ravine (the "Blue Ravine Units") set forth
in Exhibit A of the Amended and Restated Limited Liability Company Agreement
of Blue Ravine Investors, LLC (the "Blue Ravine LLC Agreement") which the
Company and Blue Ravine Realty Partners shall enter into, in a form mutually
satisfactory to each, concurrently with the Closing. By its signature hereto,
Blue Ravine LLC is hereby added as a party to the Contribution Agreement and
is included within the definition of "Transferee."
2. Merger of Blue Ravine LLC. The Operating Company agrees to
effectuate a state law merger between Blue Ravine LLC and the Operating
Company, wherein Blue Ravine LLC will be merged with and into the Operating
Company, with the Operating Company as the surviving entity (the "Blue Ravine
Merger"), upon the exercise by the managing member or the non-managing member
of Blue Ravine LLC, as applicable, of their rights pursuant to the Blue Ravine
LLC Agreement to demand the Blue Ravine Merger. Upon consummation of the Blue
Ravine Merger, each Blue Ravine Unit will be exchanged for one Unit of the
Operating Company and the holders of such Units shall have the same rights as
the other non-managing member unit holders of the Operating Company.
3. Withdrawn Property. Pinnacle Grove shall be a Withdrawn Property
as to which the Contribution Agreement is terminated, ITCR ▇▇▇▇▇▇ ▇▇▇▇▇
Limited Partnership shall not be
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included within the definition of "Contributor" and the Assumed Loan related
thereto shall be deleted from Schedule 2.1(b).
4. Approval of Additional Conveyances of Partnership Interests. The
parties hereto agree that each of the Contributors listed below, in lieu of
the direct transfer of such Contributor's Real Estate Property to the
Operating Company, shall cause each of the Partners listed adjacent to such
Contributor's name below to transfer to the Operating Company 100% of its
Partnership Interest (which collectively represent 100% of the Partnership
Interests in such Contributor).
Contributor Partners
Riverview LLC TCR Riverview Limited Partnership
TCR Riverside, Inc.
ITCR Villa Verde Limited TCR V.V. Limited Partnership
Partnership
TCR Villa Verde Holdings Limited
Partnership
Woodlake Holdings L.L.C. TCR Woodlake Limited Partnership
TC Residential Phoenix II, Inc.
5. Waiver of Time Requirements. Each party to the Contribution
Agreement waives the failure of any other party to the Contribution Agreement
to take an action required to be taken, or deliver a document required to be
delivered, within the time period specified in the Contribution Agreement so
long as such action is taken or such document is delivered at or prior to the
Closing.
6. Waiver of Third Party Consents. The Transferee (a) acknowledges
that no Contributor will obtain the consent from any third party to any
Management Contract, Office Lease, sublease or Service Contract necessary for
the Contributor or the Contributing Partner, as the case may be, to consummate
the transactions contemplated by the Contribution Agreement and (b) waives any
breach of the Contribution Agreement relating thereto.
7. Waivers of Deliveries at Closing. The Transferee waives the
requirements of Sections 9.2(h) and (j) of the Contribution Agreement relating
to the pre-Closing delivery of a list of Security Deposits and Rent Rolls for
each Real Property.
8. Registration of Shares. The first sentence of Section 7.10 of the
Contribution Agreement is amended to read in its entirety as follows:
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"Within six (6) months following the Closing Date or at such
later date as may be appropriate under applicable rules or guidelines
of the SEC but in all events within eleven (11) months following the
Closing Date, the Company shall cause to be filed with the SEC a shelf
registration statement and related prospectus that comply in all
material respects with applicable SEC rules providing for registration
under the Securities Act of the offer and sale by the Investors (as
defined in the Registration Rights Agreement) of the total number of
Shares that the Investors would own if they were to convert all Units
owned by them into Common Stock of the Company, and within ten (10)
Business Days following the Closing Date, the Company shall cause to
be filed with the SEC a shelf registration statement and related
prospectus that comply in all material respects with applicable SEC
rules providing for registration under the Securities Act of the offer
and sale by the Investors of all Shares received hereunder."
9. Updated Schedules. The Schedules attached hereto shall amend and
restate in their entirety the Schedules attached to the Contribution
Agreement.
10. Post Closing Adjustments. The parties hereto agree that the post-
closing adjustments required pursuant to Section 10.1 of the Contribution
Agreement shall also include (i) any unassessed or unrecorded property taxes
attributable to any period prior to the Closing; and (ii) as to non-
construction projects only, any unpaid construction or repair labor performed
or materials used prior to the Closing; provided, however, that TCR shall have
the right to contest the payment for such labor or materials if it, in good
faith, disputes the amounts charged for such labor or materials and diligently
pursues the contest of same.
11. Waivers Related to Assumed Loans. The Transferee (a)
acknowledges that no Contributor will obtain the consent of the lender under
the Assumed Loans listed on Exhibit A hereto (the "Excluded Loans") and (b)
waives any breach of the Contribution Agreement relating thereto. With respect
to each Excluded Loan, the TCR Parties waive the requirements of Section 2.2
of the Contribution Agreement requiring the Transferee to execute and deliver
the Loan Assumption Documents so long as the Transferee executes and delivers
such Loan Assumption Documents within 30 days of the date hereof. In the event
that the Transferee is unable for any reason to consummate any such
assumption, the Operating Company shall cause the Excluded Loan to be paid in
full at the expiration of such 30-day time period and such payment, in lieu of
assumption, shall not affect the determination of Net Value under Section
2.1(b) of the Contribution Agreement or the Cash Consideration designated
under Section 2.6 of the Contribution Agreement. Each Contributor (and each
Contributing Partner) shall be responsible for the payment at the expiration
of such 30-day time period of any prepayment premium or penalty due in
connection with the Operating Company's prepayment of any Excluded Loan of
that Contributor (or, in the case of a Contributing Partner, the Assumed Loan
of the Contributor of which that Contributing Partner is a Partner).
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IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 1 as of the
date first written above.
BRE PROPERTIES, INC.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Chief Executive Officer
BRE PROPERTY INVESTORS LLC
By: BRE Properties, Inc., its Managing
Member
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Chief Executive Officer
BLUE RAVINE INVESTORS, LLC
By: BRE Properties, Inc., its Managing
Member
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Chief Executive Officer
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Exhibit A
Exluded Loans
Project Name Location Lender
------------ -------- ------
1. Somerset Park Vallejo, CA Housing Authority of the City
of Vallejo, California
2. Riverview Santa Ana, CA ▇▇▇▇▇▇▇ ▇▇▇▇▇
3. Pinnacle at Lakeside Salt Lake City, UT FNMA
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