PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement"), dated as of July 19,
2000, is between Archstone Communities Trust, a Maryland real estate investment
trust ("ASN"), and Security Capital Group Incorporated, a Maryland corporation
("Security Capital"), and, solely for the purposes of Sections 11 and 21 hereof,
Homestead Village Incorporated, a Maryland corporation ("Homestead").
WHEREAS, Security Capital is the beneficial owner of 17,479,293 common
shares of beneficial interest, $1.00 par value per share (the "ASN Shares");
WHEREAS, ASN is the owner of $221,333,620 original principal amount of
Convertible Mortgage Notes due 2006 (the "Homestead Notes") of Homestead; and
WHEREAS, Security Capital desires to sell and ASN desires to purchase the
ASN Shares subject to the terms described herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, agreements and warranties herein contained, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Purchase and Sale. Subject to the terms and conditions herein set
forth, ASN agrees to purchase and Security Capital agrees to sell on the Closing
Date (as hereinafter defined) the ASN Shares, free and clear of all liens,
encumbrances, claims and security interests, in exchange for the delivery by ASN
to Security Capital of $178,666,380 in cash and the Homestead Notes, free and
clear of all liens, encumbrances, claims and security interests. Security
Capital and ASN agree that (i) the value of the ASN Shares is $383,841,380, (ii)
the value of the Homestead Notes is $205,175,000, and (iii) the contract rights
assigned under Section 11 have no net value. The parties further agree that the
foregoing values were arrived at through arms-length bargaining and that each
will use such valuations for all purposes (including financial and tax
purposes), except, as to financial reporting purposes, as otherwise required by
the Securities and Exchange Commission or generally accepted accounting
principles.
2. Representations and Warranties of ASN. ASN hereby represents and
warrants to Security Capital as follows:
(a) Due Organization. ASN is duly organized, validly existing and in
good standing under the laws of the State of Maryland.
(b) Authorization. ASN has the requisite power to enter into this
Agreement and the transactions and agreements contemplated hereby and to
carry out its obligations hereunder and thereunder. This Agreement has
been duly authorized, and this Agreement
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has been duly executed and delivered by ASN and constitutes a valid and
binding agreement enforceable in accordance with its terms, except, to the
extent that enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or other laws affecting the enforcement of
creditors' rights generally or by general equitable principles and except
as the enforcement of the provisions of Section 10 hereof may be limited
by public policy. Neither the execution and delivery of this Agreement,
the consummation of the transactions and agreements contemplated hereby,
nor compliance with the terms, conditions or provisions of this Agreement
will be a violation of any of the terms, conditions or provisions of ASN's
Declaration of Trust or bylaws or of any material agreement or instrument
to which it or one of its subsidiaries is a party or by which it or one of
its subsidiaries or its or their material properties may be bound, or
constitute a default or create a right of termination or acceleration
thereunder. The board of trustees of ASN, acting at a meeting from which
representatives and affiliates of Security Capital recused themselves, has
determined that this Agreement and the transactions contemplated hereby
are advisable, fair to and in the best interests of the shareholders of
ASN.
(c) Title. ASN at Closing will convey the Homestead Notes free and
clear of all liens, encumbrances, claims and security interests.
(d) Access to Information. ASN has been supplied with and has had
access to such information as it deems relevant to entering into this
Agreement and has had the opportunity to inquire of management of
Homestead and Security Capital as to any such information.
(e) ASN Shares Outstanding. As of the date hereof, ASN has
outstanding 139,484,612 common shares of beneficial interest, $1.00 par
value per share.
(f) REIT Status. ASN (i) intends in its federal income tax return
for the tax year ended December 31, 1999 and for the tax year that will
end on December 31, 2000 to be taxed as a real estate investment trust (a
"REIT") within the meaning of Section 856 of the Internal Revenue Code of
1986, as amended (the "Code"), (ii) has operated, and intends to continue
to operate, in such a manner as to qualify as a REIT for 1999 and 2000,
and (iii) the consummation of the transactions contemplated by this
Agreement will not prevent or prohibit ASN from continuing to qualify as a
REIT for federal income tax purposes, or result in the loss of ASN's
status as a REIT for federal income tax purposes.
3. Representations and Warranties of Security Capital. Security
Capital hereby represents and warrants to ASN as follows:
(a) Due Organization. Security Capital is duly organized, validly
existing and in good standing under the laws of the State of Maryland.
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(b) Authorization. Security Capital has the requisite power to enter
into this Agreement and the transactions and agreements contemplated
hereby and to carry out its obligations hereunder and thereunder. This
Agreement has been duly authorized, executed and delivered by Security
Capital and constitutes a valid and binding agreement of Security Capital
enforceable in accordance with its terms, except to the extent that
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other laws affecting the enforcement of creditors'
rights generally or by general equitable principles and except as the
enforcement of the provisions of Section 10 hereof may be limited by
public policy. Neither the execution and delivery of this Agreement,
consummation of the transactions and agreements contemplated hereby, nor
compliance with the terms, conditions or provisions of this Agreement,
will be a violation of any of the terms, conditions or provisions of
Security Capital's charter or bylaws; or of any material agreement or
instrument to which Security Capital (or one of its subsidiaries) is a
party or by which Security Capital (or one of its subsidiaries) or any of
its (or their) material properties may be bound, or constitute a default
or create a right of termination or acceleration thereunder.
Notwithstanding anything in this paragraph (b) to the contrary, ASN
acknowledges and agrees that the performance of Security Capital's
obligations hereunder requires the approval of lenders under Security
Capital's revolving credit agreement. Security Capital will use its
reasonable efforts to obtain the requisite approval under its credit
agreement as promptly as practicable.
(c) Title. Security Capital at Closing will convey the ASN Shares,
free and clear of all liens, encumbrances, claims and security interests.
(d) Access to Information. Security Capital has been supplied with
and has had access to such information as it deems relevant to entering
into this Agreement and has had the opportunity to inquire of management
of ASN as to any such information.
4. Exclusivity. Prior to the Closing, Security Capital shall not, and
shall ensure that its subsidiaries and representatives shall not, directly or
indirectly, solicit, initiate or encourage, inquiries or proposals from, or
provide any confidential information to, or participate in any discussions or
negotiations with, any person (other than ASN and its representatives)
concerning any sale or other disposition of the ASN Shares. Security Capital
will promptly advise ASN of, and communicate to ASN the terms and conditions of
(and the identity of the person making), any such inquiry or proposal received
on or prior to the Closing. Prior to the Closing ASN shall not, and shall ensure
that its subsidiaries and representatives shall not, directly or indirectly,
solicit, initiate or encourage, inquiries or proposals from, or provide any
confidential information to, or participate in any discussions or negotiations
with, any person (other than Security Capital or its representatives) concerning
any sale or other disposition of the Homestead Notes. ASN will promptly advise
Security Capital of, and communicate to Security Capital the terms and
conditions of (and the identity of the person making), any such inquiry or
proposal received on or prior to the Closing.
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5. Public Announcements. The parties hereto will consult with each other
before issuing, and provide each other with the reasonable opportunity to review
and comment upon, any press release or otherwise making any public statements
with respect to the transactions contemplated by this Agreement, and shall not
issue any such press release or make any such public statement without the
reasonable consent of the other party, except as may be required by applicable
law, by court process or by obligations pursuant to any listing agreement with
any national securities exchange or transaction reporting system so long as the
other party is notified promptly by the disclosing party of such press release
or public statement. The parties agree that the initial press release to be
issued by each party with respect to the transactions contemplated by this
Agreement upon execution of this Agreement will be in the forms agreed to by the
parties hereto prior to the execution of this Agreement.
6. Closing. Subject to the conditions set forth in Sections 7 and 8
hereof, the purchase and sale of the Securities (the "Closing") shall occur no
later than the third business day following the business day on which Security
Capital delivers ASN written notice prior to 10:30 a.m. (Mountain time) that it
has received the required consent of its lenders (such date being the "Closing
Date"). The Closing shall take place at the offices of Mayer, Brown & Platt, 190
South LaSalle Street, Chicago, Illinois 60603, at which time the parties shall
make the deliveries described below. At the Closing, in addition to any other
documents required to be delivered under this Agreement, the parties hereto
shall deliver the documents described below:
(a) Deliveries by ASN. At the Closing, ASN shall deliver or
cause to be delivered the following to Security Capital:
(1) $178,666,880 by wire transfer of immediately available
funds to the account specified by Security Capital;
(2) originally executed Homestead Notes in the aggregate
principal amount of $221,333,620, which notes shall be accompanied
by duly executed instruments of transfer and assignment;
(3) an executed copy of Amendment No. 2 to the Third Amended
and Restated Investor Agreement in the form attached hereto as
Exhibit A;
(4) a certificate, dated the Closing Date, of an executive
officer of ASN, certifying that, as of such date, the
representations and warranties of ASN contained herein are accurate,
true and correct with the same force and effect as though made on
and as of such date;
(5) a certificate of ASN's secretary certifying resolutions of
the board of trustees of ASN approving this Agreement and the
transactions contemplated hereby
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(together with an incumbency and signature certificate regarding the
officer(s) signing on behalf of ASN); and
(6) an opinion of Mayer, Brown & Platt (the "Tax Opinion"), in
form and substance reasonably satisfactory to Security Capital, to
the effect that the transactions contemplated by this Agreement will
not prevent or prohibit ASN from continuing to elect to be taxed as
a REIT in its federal income tax returns, or result in the loss of
ASN's status as a REIT for federal income tax purposes.
(b) Deliveries by Security Capital. At the Closing, Security
Capital shall deliver or cause to be delivered the following to ASN:
(1) the 17,479,293 ASN Shares, to be delivered by DWAC to an
account specified by ASN;
(2) the resignation of Constance B. Moore (one of the three
designees of Security Capital on the ASN board of trustees pursuant
to the terms of the Third Amended and Restated Investor Agreement
between Security Capital and ASN) from ASN's board of trustees and
any other position she may hold with ASN, as a result of the
decrease in the percentage ownership of ASN's outstanding common
shares owned by Security Capital pursuant to the transactions
contemplated by this Agreement;
(3) an executed copy of Amendment No. 2 to the Third Amended
and Restated Investor Agreement in the form attached hereto as
Exhibit A;
(4) a certificate, dated the Closing Date, of an executive
officer of Security Capital, certifying that, as of such date, the
representations and warranties of Security Capital contained herein
are accurate, true and correct with the same force and effect as
though made on and as of such date; and
(5) a certificate of Security Capital's secretary (and of the
secretary of the record owner of the ASN Shares) certifying
resolutions of the board of directors of Security Capital (and of
such record owner) approving this Agreement and the transactions
contemplated hereby (together with an incumbency and signature
certificate regarding the officer(s) signing on behalf of Security
Capital or such record owner).
7. Conditions to the Obligations of ASN. The obligations of ASN
under this Agreement are subject to the fulfillment of each of the following
conditions:
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(a) Performance. Security Capital shall have performed and complied
in all material respects with all agreements, covenants, obligations and
conditions required by this Agreement to be performed or complied with by
it.
(b) Injunctions. No preliminary or permanent injunction or other
final order by any United States federal or state court shall have been
issued which prevents the consummation of the transactions contemplated
hereby.
(c) Tax Opinion. Receipt by ASN of the Tax Opinion described
in Section 6(a)(7).
8. Conditions to the Obligations of Security Capital. The
obligations of Security Capital under this Agreement are subject to the
fulfillment of each of the following conditions:
(a) Performance. ASN shall have performed and complied in all
material respects with all agreements, covenants, obligations and
conditions required by this Agreement to be performed or complied with by
it.
(b) Injunctions. No preliminary or permanent injunction or other
final order by any United States federal or state court shall have been
issued which prevents the consummation of the transactions contemplated
hereby.
(c) Consents. Security Capital shall have received the necessary
consents from its lenders under its revolving credit agreement.
9. Survival. The representations and warranties of the parties shall
survive the Closing forever.
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10. Indemnification.
(a) Each party (the "Indemnifying Party") agrees to indemnify the
other party, and each of their affiliates and their respective officers,
directors, employees, agents and representatives (each, an "Indemnified
Party" and together the "Indemnified Parties") against, and agrees to hold
each of them harmless from, any and all liabilities, losses, costs,
claims, damages, penalties and expenses (including, without limitation,
reasonable attorneys' fees and expenses and costs of investigation and
litigation) ("Losses") (i) incurred or suffered by them relating to or
arising out of or in connection with any breach of or any inaccuracy in
any representation or warranty made by the Indemnifying Party in this
Agreement or any document delivered by it at the Closing pursuant to
Section 6 hereof or (ii) arising out of or in connection with any action,
suit, inquiry, or proceeding against or involving any Indemnified Party as
a result of any Indemnifying Party's actions (or lack thereof) in
connection with the negotiation or execution of this Agreement or any of
the transactions contemplated hereby, or based upon any allegation or
claim that the Indemnified Party is in any way responsible or liable for
any action (or lack thereof) of the Indemnifying Party. No person shall be
entitled to indemnification hereunder to the extent that the act or
omission of such person for which indemnification is claimed arises out of
such person's fraud, bad faith or willful misconduct.
(b) As soon as is reasonably practicable after becoming aware of a
claim for indemnification under this Agreement the Indemnified Party shall
promptly give notice to the Indemnifying Party of such claim and the
amount the Indemnified Party will be entitled to receive hereunder from
the Indemnifying Party; provided that the failure of the Indemnified Party
to give notice shall not relieve the Indemnifying Party of its obligations
hereunder except to the extent (if any) that the Indemnifying Party shall
have been prejudiced thereby. If the Indemnifying Party agrees that it has
an indemnification obligation but objects that it is obligated to pay only
a lesser amount, the Indemnified Party shall nevertheless be entitled to
recover promptly from the Indemnifying Party the lesser amount, without
prejudice to the Indemnified Party's claim for the difference.
(c) After receiving a claim as set forth above, the Indemnifying
Party may, at its own expense, (i) participate in the defense of any
claim, suit, action or proceeding and (ii) except in the case of a claim
indemnification for which is available pursuant to clause (ii) of
paragraph (a) above, as to which this clause (ii) shall be inapplicable,
upon notice to the Indemnified Party and the Indemnifying Party's
delivering to the Indemnified Party a written agreement that the
Indemnified Party is entitled to indemnification for all Losses arising
out of such claim, suit, action or proceeding, assume the defense thereof;
provided, however, that (x) the Indemnifying Party's counsel is reasonably
satisfactory to the Indemnified Party, and (y) the Indemnifying Party
shall thereafter consult with the Indemnified Party upon the Indemnified
Party's reasonable request for such consultation from time to time with
respect to such claim, suit, action or proceeding. If the Indemnifying
Party assumes such defense,
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the Indemnified Party shall have the right (but not the duty) to
participate in the defense thereof and to employ counsel, at its own
expense, separate from the counsel employed by the Indemnifying Party. If,
however, the Indemnified Party reasonably determines in its judgment that
representation by the Indemnifying Party's counsel of both the
Indemnifying Party and the Indemnified Party would present such counsel
with a conflict of interest, then such Indemnified Party may employ
separate counsel to represent or defend it in any such claim, action, suit
or proceeding and the Indemnifying Party shall pay the reasonable fees and
disbursements of such separate counsel. Whether or not the Indemnifying
Party chooses to defend or prosecute any such claim, suit, action or
proceeding, all of the parties hereto shall cooperate in the defense or
prosecution thereof.
(d) Notwithstanding anything in this Section 10 to the contrary,
neither the Indemnifying Party nor the Indemnified Party shall, without
the written consent of the other, settle or compromise any claim or permit
a default or consent to entry of any judgment unless the claimant and such
party provide to such other party an unqualified release from all
liability in respect of such claim. Notwithstanding the foregoing, if a
settlement offer solely for money damages is made by the applicable third
party claimant, and the Indemnifying Party notifies the Indemnified Party
in writing of the Indemnifying Party's willingness to accept the
settlement offer and pay the amount called for by such offer, and the
Indemnified Party declines to accept such offer, the Indemnified Party may
continue to contest such claim, free of any participation by the
Indemnifying Party, and the amount of any ultimate liability with respect
to such claim that the Indemnifying Party has an obligation to pay
hereunder shall be limited to the lesser of (i) the amount of the
settlement offer that the Indemnified Party declined to accept or (ii) the
aggregate Losses of the Indemnified Party with respect to such claim. If
the Indemnifying Party makes any payment on any claim, the Indemnifying
Party shall be subrogated, to the extent of such payment, to all rights
and remedies of the Indemnified Party to any insurance benefits or other
claims of the Indemnified Party with respect to such claim.
(e) In the event that the Indemnifying Party does not elect to
assume the defense of any claim, suit, action or proceeding, then any
failure of the Indemnified Party to defend or to participate in the
defense of any such claim, suit, action or proceeding or to cause the same
to be done, shall not relieve the Indemnifying Party of its obligations
hereunder.
11. Assignment of Rights. Effective upon the Closing of the transactions
contemplated hereby, ASN shall assign to Security Capital, and Security Capital
shall assume, all of ASN's right, title, interest and obligations under all
deeds of trust, security agreements, guaranties of completion and payment,
funding commitment agreements and similar documents and instruments securing or
providing rights with respect to the Homestead Notes or the property securing
the Homestead Notes. Each of the parties hereto shall execute such further
documents, agreements and instruments, and take all other actions as may be
reasonably necessary to carry out the purposes of this Agreement and the
transactions contemplated hereby.
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12. Successors and Assigns. This Agreement shall be binding upon, and
inure to the benefit of, the parties hereto and their respective heirs, personal
representatives, successors, assigns and affiliates.
13. Notices. Any notice or other communication provided for herein or
given hereunder to a party hereto shall be in writing and shall be given by
delivery, by telex, telecopier or by mail (registered or certified mail, postage
prepaid, return receipt requested) to the respective parties as follows:
If to ASN:
Archstone Communities Trust
7670 South Chester Street
Englewood, Colorado 80112
Attention: Caroline Brower
Facsimile: (303) 708-6954
with a copy to:
Mayer, Brown & Platt
190 South LaSalle Street
Chicago, Illinois 60603
Attention: Michael T. Blair
Facsimile: (312) 701-7711
If to Security Capital:
Security Capital Group Incorporated
125 Lincoln Avenue
Santa Fe, New Mexico 87501
Attention: Jeffrey A. Klopf
Facsimile: (505) 988-8920
with a copy to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attention: Adam O. Emmerich
Facsimile: (212) 403-2000
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or to such other address with respect to a party as such party shall notify the
other in writing.
14. Waiver. No party may waive any of the terms or conditions of this
Agreement, nor may this Agreement be amended or modified, except by a duly
signed writing referring to the specific provision to be waived, amended or
modified.
15. Entire Agreement. This Agreement constitutes the entire agreement, and
supersedes all other prior agreements and understandings, both written and oral,
among the parties hereto and their affiliates.
16. Expenses. Except as otherwise expressly contemplated herein to the
contrary, regardless of whether the transactions contemplated hereby are
consummated, each party hereto shall pay its own expenses incident to preparing
for, entering into and carrying out this Agreement and the consummation of the
transactions contemplated hereby.
17. Captions. The Section and Paragraph captions herein are for
convenience of reference only, do not constitute part of this Agreement and
shall not be deemed to limit or otherwise affect any of the provisions hereof.
18. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument.
19. Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Maryland.
20. No Presumption Against Drafter. Each of the parties hereto has jointly
participated in the negotiation and drafting of this Agreement. In the event of
an ambiguity or a question of intent or interpretation arises, this Agreement
shall be construed as if drafted jointly by each of the parties hereto and no
presumptions or burdens of proof shall arise favoring any party by virtue of the
authorship of any of the provisions of this Agreement.
21. Consent of Homestead. Homestead hereby consents to the transactions
contemplated hereby, including the matters contemplated hereby.
22. Terminatiion. If the closing of the transactions contemplated hereby
has not occurred on or prior to August 31, 2000, this Agreement shall terminate
and be of no further force or effect.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the day and year first executed.
ARCHSTONE COMMUNITIES TRUST
By: /s/ Charles E. Mueller, Jr.
----------------------------
Charles E. Mueller, Jr.
Chief Financial Officer
SECURITY CAPITAL GROUP INCORPORATED
By: /s/ Jeffrey A. Klopf
----------------------------
Jeffrey A. Klopf
Senior Vice President
HOMESTEAD VILLAGE INCORPORATED, solely
for purposes of Sections 11 and 21 above
By: /s/ Jeffrey A. Klopf
----------------------------
Jeffrey A. Klopf
Senior Vice President
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EXHIBIT A
AMENDMENT NO. 2
TO
THIRD AMENDED AND RESTATED INVESTOR AGREEMENT
THIS AMENDMENT NO. 1 (this "Amendment"), dated as of __________, 2000, to
the Third Amended and Restated Investor Agreement, dated as of September 9,
1997, as amended by Amendment No.1 thereto, dated as of July 7, 1998 (as so
amended, the "Agreement"), is made by and between Archstone Communities Trust
(formerly Security Capital Pacific Trust), a Maryland real estate investment
trust (the "Company"), and Security Capital Group Incorporated, a Maryland
corporation ("SCG").
WHEREAS, pursuant to a Purchase and Sale Agreement, dated as of July 19,
2000 (the "Purchase and Sale Agreement"), between the Company and SCG, SCG has
agreed to sell to the Company certain Common Shares in exchange for the
consideration described therein; and
WHEREAS, as a condition to the closing of the transactions contemplated by
the Purchase and Sale Agreement, the parties have agreed to amend the Agreement
as herein provided.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Amendment and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
amend the Agreement as follows:
(a) Section 5(b) of the Agreement is hereby amended and restated in its
entirety as follows:
" (b) File Reports. For so long as SCG shall continue to Beneficially Own
any Common Shares, the Company shall file on a timely basis all annual,
quarterly and other reports required to be filed by it under Sections 13
and 15(d) of the Exchange Act, and the Rules and Regulations of the
Commission thereunder, as amended from time to time; provided, however,
that for so long as SCG Beneficially Owns at least 10% of the outstanding
Common Shares, the Company shall use its best efforts to file such reports
at least two (2) business days prior to the day on which such reports
would otherwise be required to be filed under Sections 13 and 15(d) of the
Exchange Act, and the Rules and Regulations of the Commission thereunder,
as amended from time to time."
(b) The following new subsections (j) and (k) are hereby added
to the end of Section 5 of the Agreement:
" (j) Board Committees. For so long as SCG shall continue to be entitled
to designate one or more Nominees, the Company shall use its best efforts
to cause one of such Nominees as designated by SCG to serve on each of the
Executive and Investment Committee and the Management Development and
Executive Compensation Committee of the Board.
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(k) Reports. For so long as SCG shall continue to Beneficially Own
at least 10% of the outstanding Common Shares, the Company shall provide
SCG, on a timely basis, monthly operating and financial reports prepared
in the Company's customary form."
(c) Section 7(a) of the Agreement is hereby amended by adding
the following sentence to the end thereof:
"Without limiting the generality of the foregoing, SCG may request
registration of all or any part of its Registrable Securities, which
Registrable Securities are proposed to be sold or transferred by SCG upon
conversion or exchange of convertible or exchangeable securities of SCG to
be issued by SCG in a transaction registered under the Securities Act, and
the Company will use its reasonable efforts to effect the registration of
such Registrable Securities under the Securities Act, to the extent that
such registration is permitted under the Securities Act and the Rules and
Regulations of the Commission thereunder."
(d) Sections 7(b)(i) and (b)(ii) are hereby amended and restated in
their entirety as follows:
" (i) prepare and file with the Commission a registration statement
with respect to such securities and use its reasonable efforts to
cause such registration statement to become effective and remain
effective for as long as shall be necessary to complete the
distribution of the Registrable Securities so registered;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement, and the prospectus used
in connection therewith, as may be necessary to keep such
registration statement effective for so long as shall be necessary
to complete the distribution of the Registrable Securities so
registered and to comply with the provisions of the Securities Act
with respect to the sale or other disposition of all securities
covered by such registration statement whenever SCG shall desire to
sell or otherwise dispose of the same within such period;"
(e) Section 7(i) of the Agreement is hereby amended by adding
the following provisions to the end thereof:
"SCG may assign without the consent of the Company, all or any portion of,
its rights under this Section 7 with respect to any Registrable Securities
to one or more Persons (each, a "Transferee" and together "Transferees")
to whom SCG has issued or sold, in a transaction not registered or
required to be registered under the Securities Act, any security
convertible into or exchangeable for at least $100 million in Value of
Registrable Securities. If SCG assigns its rights under this Section 7
with respect to Registrable Securities having an aggregate offering value
of at least $100 million to one or more Transferees, the Transferees may
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request one registration of all or part of the Registrable Securities
having an aggregate offering value of at least $100 million on Form S-3
(or any successor form) under the Securities Act by delivering written
notice to the Company specifying the number of Registrable Securities that
the Transferees desire to sell and the Company shall use its reasonable
efforts to effect the registration of such Registrable Securities under
the Securities Act in accordance with and subject to the provisions of
this Section 7. For the avoidance of doubt, and notwithstanding anything
contained herein, any rights under this Section 7 not expressly assigned
by SCG shall deemed to be retained by SCG, and SCG shall continue to be
entitled to registration rights hereunder with respect to Registrable
Securities Beneficially Owned by it, subject to the terms hereof."
(f) "Executive and Investment Committee" shall mean the committee of the
Board primarily responsible for acting on behalf of the entire Board between
regular Board meetings, reviewing and making recommendations regarding strategic
actions; pricing securities to be issued by the Company and reviewing and
approving proposed investments and property dispositions, including any such
successor or replacement committee.
"Management Development and Executive Compensation Committee" shall
mean the committee of the Board primarily responsible for reviewing and
approving the Company's executive compensation arrangements and plans including
any such successor or replacement committee.
(g) Capitalized terms used in this Amendment but not specifically defined
herein shall have the meanings ascribed thereto in the Agreement.
(h) Except as otherwise specifically modified hereby, the Agreement shall
remain in full force and effect.
(i) This Amendment shall be governed by, and construed and enforced in
accordance with, the laws of the State of Maryland.
(j) This Amendment may be executed in any number of counterparts, each of
which may be deemed an original and all of which together shall constitute one
and the same instrument.
(k) The miscellaneous provisions of Section 8 of the Agreement shall apply
equally to this Amendment, and to the Agreement as modified hereby.
* * * * *
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
ARCHSTONE COMMUNITIES TRUST
By:
-----------------------------
Charles E. Mueller, Jr.
Chief Financial Officer
SECURITY CAPITAL GROUP INCORPORATED
By:
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Jeffrey A. Klopf
Senior Vice President
