Exhibit 10.1
AMENDMENT NO. 1
TO
THIRD AMENDED AND RESTATED INVESTOR AGREEMENT
THIS AMENDMENT NO. 1 (this "Amendment"), dated as of July 7, 1998, to the
Third Amended and Restated Investor Agreement, dated as of September 9, 1997
(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 an Agreement and Plan of Merger dated as of April 1,
1998, Security Capital Atlantic Incorporated, a Maryland corporation
("ATLANTIC"), was merged (the "Merger") with and into the Company; and
WHEREAS, as a result of the Merger, the parties desire to amend the
Agreement to reflect the increased size of the Company and various other
matters.
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:
1. The Amended and Restated Investor Agreement, dated as of September 9,
1997 by and between ATLANTIC and SCG is hereby terminated and shall be of no
further force or effect.
2. Section 5(a) of the Agreement is hereby amended and restated in its
entirety as follows:
" (a) Board Representation. From and after the date hereof and for so long
thereafter as SCG Beneficially Owns 10% or more of the outstanding Common
Shares, the Company shall not increase the number of members of its Board
to more than twelve (12), and SCG shall be entitled to designate one or
more Persons for nomination to the Board (such Person, a "Nominee") as
follows and the Company will use its best efforts to cause the election of
such Nominee or Nominees:
(i) So long as SCG Beneficially Owns at least 10% but less than
25% of the outstanding Common Shares, one (1) Nominee;
(ii) So long as SCG Beneficially Owns 25% or more of the
outstanding Common Shares, that number of Nominees as shall bear
approximately the same ratio (rounded down to the nearest whole
number) to the total number of members of the Board as the number of
Common Shares Beneficially Owned by SCG bears to the total number of
outstanding Common Shares, provided, that any Person who is employed
by SCG or who is an employee or a director of any corporation of which
SCG is a 25% shareholder (except for the Company) shall be deemed to
be a designee of SCG."
3. Section 5(ii) through 5(c)(iv) of the Agreement is hereby amended and
restated in its entirety as follows:
" (ii) Expenses. Incurring expenses in any year exceeding (A) any
line item in the annual budget by the greater of $1,000,000 or 20% or
and (B) the total expenses set forth in the annual budget by 15%.
(iii) Assets. The acquisition or sale of any assets in any
single transaction or any series of related transactions in the
ordinary course of the Company's business where the aggregate purchase
price paid or received by the Company exceeds $50,000,000.
(iv) Contracts. Entering into any new contract with a service
provider (A) for investment management, property management, or
leasing services or (B) that reasonably contemplates annual contract
payments by the Company in excess of $2,000,000."
4. Capitalized terms used in this Amendment but not specifically defined
herein shall have the meanings ascribed thereto in the Agreement. All references
to the Company in the Agreement and this Amendment shall be deemed to refer to
Archstone Communities Trust, the surviving entity in the Merger, unless the
context requires otherwise. All references to the term "Registrable Securities"
shall be deemed to include the common shares of beneficial interest of the
Company issued to SCG in connection with the Merger.
5. Except as otherwise specifically modified hereby, the Agreement shall
remain in full force and effect.
6. This Amendment shall be governed by, and construed and enforced in
accordance with, the laws of the State of Maryland.
7. 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.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first above written.
ARCHSTONE COMMUNITIES TRUST
By: /s/ R. ▇▇▇▇ ▇▇▇▇▇▇▇
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R. ▇▇▇▇ ▇▇▇▇▇▇▇
Co-Chairman and Chief Investment Officer
SECURITY CAPITAL GROUP INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President
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