ADDENDUM
TO THE
EXCHANGE AND CONTRIBUTION AGREEMENT
-----------------------------------
THIS "ADDENDUM TO THE EXCHANGE AND CONTRIBUTION AGREEMENT" is hereby
made a part of that certain Exchange and Contribution Agreement dated as of July
_____, 1997 (the "Contribution Agreement"), by and among XXXXXX PLACE APARTMENTS
LIMITED PARTNERSHIP, a Texas limited partnership ("Transferor"); MTP, INC., a
Texas corporation and the general partner of Transferor ("MTP"); ASR INVESTMENTS
CORPORATION, a Maryland corporation (the "REIT"); HERITAGE SGP CORPORATION, an
Arizona corporation wholly owned by the REIT ("Heritage SGP"); and HERITAGE
COMMUNITIES L.P., a Delaware limited partnership ("Heritage LP" and together
with Transferor, MTP, the REIT, and Heritage SGP, the "Contribution Agreement
Parties").
The Contribution Agreement Parties hereby agree to make the following
additions and amendments to the Contribution Agreement:
1. Recital 1 on page 1 of the Contribution Agreement shall be amended
and restated in its entirety to read as follows:
1. The REIT shall make a tender offer (the "Exchange Offer")
to each owner of partnership interests in Transferor (the "Transferor
Partners") that is an Accredited Investor to tender partnership
interests in Transferor (the "Transferor Partnership Interests") in
exchange for shares of the REIT's common stock, par value $.01 per
share (the "REIT Stock"), pursuant to the terms and conditions of this
Agreement and a Letter of Transmittal and Assignment in the form of
Exhibit A hereto (the "Letter of Transmittal") to be executed by each
Transferor Partner desiring to tender their Transferor Partnership
Interests in the Exchange Offer. The REIT and the Custodian (as defined
herein) shall enter into a registration agreement in the form of
Exhibit I attached hereto (the "Exchange Offer Registration Agreement")
pursuant to which the REIT shall agree to register for resale under
federal securities laws the shares of REIT Stock to be issued in the
Exchange Offer.
2. Recital 2 on page 2 of the Contribution Agreement shall be amended
to read as follows:
2. Upon the terms and subject to the conditions set forth in
this Agreement, on the Closing Date, Transferor, or the partners of
Transferor as designated by Transferor on Schedule VIII attached
hereto, as updated pursuant to Section 6.2(a) hereof, shall enter into
the Second Amended and Restated Agreement of Limited Partnership of
Heritage LP in the form of Exhibit B
attached hereto (the "Partnership Agreement") pursuant to which the
REIT and Heritage SGP will make certain cash contributions (the "REIT
Capital Contribution") to Heritage LP in exchange for general
partnership interests in Heritage LP ("GP Units"), and Transferor will
contribute the Property in exchange for limited partnership interests
in Heritage LP ("LP Units") and cash. The LP Units will be issued by
Heritage LP in Transferor's name or in the names of the partners of
Transferor, as designated by Transferor on Schedule VIII attached
hereto as updated pursuant to Section 6.2(a) hereof. The GP Units and
the LP Units shall be exchangeable for REIT Stock at any time following
the first anniversary of the Closing Date. Transferor, the REIT and
Heritage LP shall enter into a registration agreement in the form of
Exhibit C attached hereto (the "Asset Transfer Registration Agreement")
pursuant to which the REIT shall agree to register under federal
securities laws the shares of REIT Stock to be issued in exchange for
the LP Units. The contributions of the REIT Capital Contribution in
exchange for GP Units and the Property in exchange for LP Units and
cash are collectively referred to herein as the "Asset Transfer."
The Exchange Offer Registration Agreement, the Partnership
Agreement and the Asset Transfer Registration Agreement are sometimes
hereinafter collectively referred to as the "Related Agreements."
3. Article 5 of the Contribution Agreement shall be amended and
restated in its entirety to read as follows:
ARTICLE 5
CONTINUATION AND SURVIVAL
OF REPRESENTATIONS AND WARRANTIES
---------------------------------
Each of the representations and warranties contained in this
Agreement shall be true and correct on and as of the Closing Date and
at all times between the execution of this Agreement and the Closing
Date with the same force and effect as if made at each of such times,
except to the extent, if any, that such representations and warranties
shall be affected by transactions contemplated by this Agreement.
Except for the representations and warranties set forth in Section
4.3(b) hereof, all such representations and warranties shall survive
the consummation of the transactions contemplated by this Agreement for
a period of six months following the Closing Date irrespective of any
investigations or inquiries made by any party or any knowledge which
any party may now possess or which may hereafter come to any party's
attention, and each party shall be entitled to rely upon such
representations and warranties irrespective of any investigations,
inquiries or knowledge. The representations and warranties set forth in
Section 4.3(b) hereof shall survive the consummation of the
transactions contemplated by this Agreement for a period of two years
following the Closing
Date irrespective of any investigations or inquiries made by any party
or any knowledge which any party may now possess or which may hereafter
come to any party's attention, and each party shall be entitled to rely
upon such representations and warranties irrespective of any
investigations, inquiries or knowledge. The provisions of this Article
5 shall not operate to limit or effect the terms and provisions of the
Exchange Offer Registration Agreement or the Asset Transfer
Registration Agreement.
4. Section 7.1(e) of the Contribution Agreement shall be amended and
restated in its entirety to read as follows:
(e) Delivery of Letters of Transmittal and Custody Agreements.
The Custodian shall have delivered, or caused to be delivered
to the REIT, a properly completed and executed Letter of
Transmittal and Custody Agreement for each Transferor Partner
participating in the Exchange Offer.
5. Section 8.3(d) shall be added to the Contribution Agreement to read
as follows:
(d) Exchange Offer Registration Agreement. The Exchange Offer
Registration Agreement duly executed by the Custodian on
behalf of each Transferor Partner who has tendered a
Transferor Partner Interest in the Exchange Offer.
6. Section 8.5(d) shall be added to the Contribution Agreement to read
as follows:
(d) Prospectus. A sufficient number of copies of the
prospectus in conformity with the requirements of the
Securities Act, to facilitate the disposition of shares of
REIT Stock acquired by Transferor Partners in the Exchange
Offer.
7. Section 8.5(e) shall be added to the Contribution Agreement to read
as follows:
(e) Exchange Offer Registration Agreement. The Exchange Offer
Registration Agreement duly executed by the REIT.
8. Section 8.5(f) shall be added to the Contribution Agreement to read
as follows:
(f) Evidence of Registration. Sufficient evidence that the
Registration Statement has been declared effective by the
Securities and Exchange Commission on or prior to the Closing
Date.
9. Section 8.6(s) shall be added to the Contribution Agreement to read
as follows:
(s) Certificates of Non-Foreign Status. A Certificate of Non-
Foreign Status duly executed by Transferor and each Transferor
Partner designated by Transferor to receive LP Units in the
Asset Transfer.
10. Section 8.6(t) shall be added to the Contribution Agreement to read
as follows:
(t) Form W-9. A Form W-9 setting forth Transferor's tax
identification number duly executed by Transferor and a Form
W-9 duly executed by each Transferor Partner designated by
Transferor to receive LP Units in the Asset Transfer.
11. The first paragraph of Section 8.10 of the Contribution Agreement
shall be amended and restated in its entirety to read as follows:
8.10 Prorations. The items in this Section 8.10 with respect
to the Real Property shall be apportioned or prorated between the
Transferor and Heritage LP as of the end of the day preceding the
Closing Date in order to determine the amount of the Proration with
respect to such Property. If the Cash Payment considered payable to the
Custodian pursuant to Section 2.2(b) is not received by the Title
Company before 1:00 p.m., Dallas, Texas time, on the Closing Date, the
prorations shall be made as of the date in which the Closing occurs
(i.e., each Transferor shall receive rents and pay expenses for the day
of Closing with respect to such Transferor's Property). All prorations
other than the Dividend Distribution Offset set forth in Section
8.10(j) shall be based upon a fraction determined by dividing the
number of days elapsed through the date of the Closing by 365. The
parties shall compute or estimate all prorations prior to the Closing
Date, and Transferor shall supply Heritage LP before the Closing
satisfactory supporting evidence for all such adjustments. In the event
that any of the items in this Section 8.10 cannot be calculated
accurately on the Closing Date, then they shall be calculated as soon
after the Closing Date as feasible. Either party owing the other party
a sum of money based on such subsequent proration(s) shall promptly pay
said sum to the other party, together with interest thereon at the rate
of the lesser of (A) two percent (2%) over the average "prime rate" (as
announced from time to time in the Wall Street Journal) per annum or
(B) the highest legally permitted rate, from the Closing Date to the
date of payment if payment is not made within ten (10) days after
delivery of a xxxx therefor. The provisions of this Section 8.10 shall
survive the Closing.
12. The definition of REIT Stock Price as set forth in the Contribution
Agreement shall be amended and restated in its entirety to read as follows:
"REIT Stock Price" shall mean $22.25.
13. Exhibit H to the Contribution Agreement shall be amended and
restated in its entirety as set forth in Appendix I hereto.
14. Exhibit I shall be added to the Contribution Agreement as set forth
in its entirety in Appendix II hereto.
Except as set forth in this Addendum, all provisions of the
Contribution Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Addendum to the Contribution Agreement this _____ day of _______________,
1997.
MTP: HERITAGE SGP:
MTP, INC., HERITAGE SGP CORPORATION, an
a Texas corporation Arizona corporation
By:
-------------------------------- By:
Its: --------------------------------
------------------------------- Its:
-------------------------------
THE REIT: TRANSFEROR:
ASR INVESTMENTS CORPORATION, XXXXXX PLACE APARTMENTS
a Maryland corporation LIMITED PARTNERSHIP, a Texas
limited partnership
By: By: MTP, Inc.
-------------------------------- Its: General Partner
Its:
-------------------------------
By:
HERITAGE LP: -----------------------
Its:
HERITAGE COMMUNITIES L.P., ----------------------
a Delaware limited partnership
By: ASR Investments Corporation
Its: General Partner
By:
-----------------------
Its:
----------------------
