-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, PjEMZc+nGIHmBGRvuls6flU8Yx8ozlA79clqsHh0gr9yT7pG0Nlg5Y5dMg98Wii2 soeedFs9E+Ba7dgpQ682/A== 0000950123-01-505848.txt : 20010821 0000950123-01-505848.hdr.sgml : 20010821 ACCESSION NUMBER: 0000950123-01-505848 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20010820 GROUP MEMBERS: LAZARD FRERES & CO. LLC GROUP MEMBERS: LF STRATEGIC REALTY INVESTORS L.P. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: UNITED DOMINION REALTY TRUST INC CENTRAL INDEX KEY: 0000074208 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 540857512 STATE OF INCORPORATION: VA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-20857 FILM NUMBER: 1719577 BUSINESS ADDRESS: STREET 1: 400 EAST CARY STREET CITY: RICHMOND STATE: VA ZIP: 23219-3802 BUSINESS PHONE: 8047802691 MAIL ADDRESS: STREET 1: 400 EAST CARY STREET CITY: RICHMOND STATE: VA ZIP: 23219-3802 FORMER COMPANY: FORMER CONFORMED NAME: OLD DOMINION REAL ESTATE INVESTMENT TRUS DATE OF NAME CHANGE: 19741216 FORMER COMPANY: FORMER CONFORMED NAME: OLD DOMINION REAL ESTATE INVESTMENT TRUST DATE OF NAME CHANGE: 19850110 FORMER COMPANY: FORMER CONFORMED NAME: OLD DOMINION REIT ONE DATE OF NAME CHANGE: 19770921 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: LAZARD FRERES REAL ESTATE INVESTORS LLC CENTRAL INDEX KEY: 0001042593 STANDARD INDUSTRIAL CLASSIFICATION: [] STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 30 ROCKEFELLER PLAZA STREET 2: 63RD FL CITY: NEW YORK STATE: NY ZIP: 10020 BUSINESS PHONE: 2126326000 MAIL ADDRESS: STREET 1: 30 ROCKEFELLER PLAZA STREET 2: 63RD FL CITY: NEW YORK STATE: NY ZIP: 10020 SC 13D/A 1 y52699sc13da.txt AMENDMENT NO. 3 TO SCHEDULE 13D 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 3) United Dominion Realty Trust, Inc. ------------------------------------ (Name of Issuer) Common Stock, Par Value $1.00 Per Share ----------------------------------------- (Title of Class of Securities) 910197102 ----------- (CUSIP Number) Marjorie L. Reifenberg, Esq. With a copy to: Lazard Freres Real Estate Investors L.L.C. Frederick Tanne, Esq. 30 Rockefeller Plaza Kirkland & Ellis New York, NY 10020 153 East 53rd Street (212) 632-6000 New York, New York 10022 (212) 446-4800 --------------------------------------------- (Name, Address and Telephone Number of Persons Authorized to Receive Notices and Communications) August 20, 2001 ------------------------------------------------------- (Date of Event which Requires Filing of This Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box [ ]. NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7(b) for other parties to whom copies are to be sent. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act. 2 SCHEDULE 13D CUSIP No. 910197102 Page 2 of 13 Pages - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON LF Strategic Realty Investors L.P. - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [X] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* Not applicable - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 0 SHARES ------------------------------------------------------ 8 SHARED VOTING POWER BENEFICIALLY 0 (See Item 5) OWNED BY ------------------------------------------------------ EACH 9 SOLE DISPOSITIVE POWER REPORTING 0 ------------------------------------------------------ PERSON 10 SHARED DISPOSITIVE POWER WITH 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0 (See Item 5) - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* PN (limited partnership) - -------------------------------------------------------------------------------- 3 SCHEDULE 13D CUSIP No. 910197102 Page 3 of 13 Pages - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON Lazard Freres Real Estate Investors L.L.C. - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [X] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* Not applicable - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION New York - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 0 SHARES ------------------------------------------------------ 8 SHARED VOTING POWER BENEFICIALLY 0 (See Item 5) OWNED BY ------------------------------------------------------ EACH 9 SOLE DISPOSITIVE POWER REPORTING 0 (See Item 5) ------------------------------------------------------ PERSON 10 SHARED DISPOSITIVE POWER WITH 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0 (See Item 5) - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* 00 (limited liability company) - -------------------------------------------------------------------------------- 4 SCHEDULE 13D CUSIP No. 910197102 Page 4 of 13 Pages - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON Lazard Freres & Co. LLC - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [X] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* Not applicable - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION New York - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 0 SHARES ------------------------------------------------------ 8 SHARED VOTING POWER BENEFICIALLY 0 (See Item 5) OWNED BY ------------------------------------------------------ EACH 9 SOLE DISPOSITIVE POWER REPORTING 0 (See Item 5) ------------------------------------------------------ PERSON 10 SHARED DISPOSITIVE POWER WITH 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0 (See Item 5) - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* 00 (limited liability company) - -------------------------------------------------------------------------------- 5 Page 5 of 13 Pages This Amendment No. 3, dated August 20, 2001, is filed by LF Strategic Realty Investors L.P., a Delaware limited partnership ("LF Realty"), Lazard Freres Real Estate Investors L.L.C., a Ne w York limited liability company ("LFREI"), and Lazard Freres & Co. LLC, a New York limited liability company ("Lazard" and together with LF Realty and LFREI, the "Reporting Persons"). Capitalized terms used herein but not defined shall have the meanings ascribed thereto in the Schedule 13D dated September 10, 1998, as amended, filed by the Reporting Persons (as amended, the "Initial Schedule 13D"). This Amendment hereby amends and supplements the Initial Schedule 13D. All items not described herein remain as previously reported in the Initial Schedule 13D. ITEM 2. IDENTITY AND BACKGROUND. (a), (b), (c) and (f). The information set forth in Amendment No. 2 to the Initial Schedule 13D regarding Lazard, persons who may be deemed to be in control of Lazard and the executive officers and directors of LFREI is hereby amended and supplemented by replacing Schedules 1, 2, 3 and 4 to Amendment No. 2 with Schedules 1, 2, 3 and 4 hereto, which are attached hereto and are incorporated herein by reference. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. Not applicable. ITEM 4. PURPOSE OF TRANSACTION. On August 14, 2001, LF Realty entered into a Purchase Agreement (the "Purchase Agreement") with Security Capital Preferred Growth Incorporated ("SCPGI"), whereby LF Realty agreed to sell to SCPGI the 8,000,000 shares of Series D Cumulative Convertible Redeemable Preferred Stock (the "Series D Preferred Stock") that it owned, subject to the satisfaction of certain conditions. The closing of the sale of the Series D Preferred Stock to SCPGI occurred on August 20, 2001. The Purchase Agreement is included as Exhibit 1 to this Amendment No. 3 and is incorporated herein by reference. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. None. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OF RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. Pursuant to the Purchase Agreement, one of the conditions to the closing of the sale of the Series D Preferred Stock to SCPGI was the execution by the Company of a Waiver and Release Agreement by and between the Company and LF Realty (the "Waiver") pursuant to which the Company agreed to waive all transfer restrictions with respect to the sale of the Series D Preferred Stock to SCPGI. The Waiver is included as Exhibit 2 to this Amendment No. 3 and is incorporated herein by reference. 6 Page 6 of 13 Pages ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. Exhibit 1 -- Purchase Agreement dated as of August 14, 2001 by and between Security Capital Preferred Growth Incorporated and LF Strategic Realty Investors L.P. Exhibit 2 -- Waiver and Release Agreement dated as of August 14, 2001 by and between United Dominion Realty Trust, Inc. and LF Strategic Realty Investors L.P. 7 Page 7 of 13 Pages SIGNATURES After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. LF STRATEGIC REALTY INVESTORS L.P. By: Lazard Freres Real Estate Investors L.L.C., as general partner By: /s/ John A. Moore --------------------------------- Name: John A. Moore Title: Principal and Chief Financial Officer Date: August 20, 2001 After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. LAZARD FRERES REAL ESTATE INVESTORS L.L.C. By: /s/ John A. Moore ------------------------------------ Name: John A. Moore Title: Principal and Chief Financial Officer Date: August 20, 2001 After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. LAZARD FRERES & CO. LLC By: /s/ Scott D. Hoffman ------------------------------------- Name: Scott D. Hoffman Title: Managing Director Date: August 20, 2001 8 Page 8 of 13 Pages SCHEDULE 1 Set forth below are the names of each of the members of the management committee of Lazard Freres & Co. LLC. Except as otherwise indicated, the principal occupation of each such person is managing director of Lazard Freres & Co. LLC, the business address of each such person is 30 Rockefeller Plaza, New York, New York 10020 and each person is a citizen of the United States.
Business Address and Principal Occupation Name (if other than as indicated above) Citizenship - ---- ---------------------------------- ----------- Michel A. David-Weill Chairman of Lazard LLC and France Lazard Freres & Co. LLC Norman Eig Steven J. Golub Herbert W. Gullquist Kenneth M. Jacobs William R. Loomis, Jr. Chief Executive Officer and Managing Director of Lazard Freres & Co. LLC and Chief Executive Officer of Lazard LLC David L. Tashjian
9 Page 9 of 13 Pages SCHEDULE 2 Lazard Board Of Lazard LLC Set forth below are the members of the Lazard Board of Lazard LLC, their business address, principal occupation and citizenship:
Principal Occupation Name and Business Address Citizenship - ---- -------------------- ----------- Michel A. David-Weill Chairman of Lazard LLC and France Lazard Freres & Co. LLC Lazard Freres & Co. LLC 30 Rockefeller Plaza New York, NY 10020 Antoine Bernheim Investor France Chairman of Assicurazioni Generali S.p.A Lazard Freres S.A.S. 121 Boulevard Haussmann 75382 Paris Cedex 08 France Francois Voss Managing Director of Lazard Freres S.A.S. France Lazard Freres S.A.S. 121 Boulevard Haussmann 75382 Paris Cedex 08 France Didier Pfeiffer President du Conseil de Surveillance France Fonds de Garantie des Assurances de Personnes 30-32 rue de Taitbout 75311 Paris Cedex 09 France Alain Merieux President Directeur General (CEO) France BioMerieux S.A. and BioMerieux Alliance 69280 Marcy L'Etoile France Jean Guyot Investor France Lazard Freres S.A.S. 121 Boulevard Haussmann 75382 Paris Cedex 08 France
10 Page 10 of 13 Pages
Principal Occupation Name and Business Address Citizenship - ---- -------------------- ----------- Bruno M. Roger Managing Director of Lazard Freres S.A.S. France Lazard Freres S.A.S. 121 Boulevard Haussmann 75382 Paris Cedex 08 France William R. Loomis, Jr. Chief Executive Officer USA and Managing Director of Lazard Freres & Co. LLC and Chief Executive Officer of Lazard LLC Lazard Freres & Co. LLC 30 Rockefeller Plaza New York, NY 10020 Marcus Agius Chairman and Managing Director of United Kingdom Lazard Brothers & Co., Limited Lazard Brothers & Co., Limited 21 Moorfields London EC2P 2HT United Kingdom Gerardo Braggiotti Managing Director of Lazard Freres Italy S.A.S., Lazard Freres & Co. LLC and Lazard Brothers & Co., Limited; Vice Chairman of Lazard AB Stockholm and Lazard & C. Srl; Member of Supervisory Board of Lazard & Co. GmbH; and Chairman of Lazard Asesores Financieras S.A. Lazard Freres S.A.S. 121 Boulevard Haussmann 75382 Paris Cedex 08 France
11 Page 11 of 13 Pages SCHEDULE 3 Executive Committee of Lazard Strategic Coordination Company LLC Set forth below are the members of the Executive Committee of Lazard Strategic Coordination Company LLC, their business address, principal occupation and citizenship:
Principal Occupation Name and Business Address Citizenship - ---- -------------------- ----------- Michel A. David-Weill Chairman of Lazard LLC and France Lazard Freres & Co. LLC Lazard Freres & Co. LLC 30 Rockefeller Plaza New York, NY 10020 Marcus Agius Chairman and Managing Director of United Kingdom Lazard Brothers & Co., Limited Lazard Brothers & Co., Limited 21 Moorfields London EC2P 2HT United Kingdom Gerardo Braggiotti Managing Director of Lazard Freres Italy S.A.S., Lazard Freres & Co. LLC and Lazard Brothers & Co., Limited; Vice Chairman of Lazard AB Stockholm and Lazard & C. Srl; Member of Supervisory Board of Lazard & Co. GmbH; and Chairman of Lazard Asesores Financieras S.A. Lazard Freres S.A.S. 121 Boulevard Haussmann 75382 Paris Cedex 08 France Norman Eig Managing Director USA of Lazard Freres & Co. LLC Lazard Freres & Co. LLC 30 Rockefeller Plaza New York, NY 10020 Kenneth M. Jacobs Managing Director USA of Lazard Freres & Co. LLC Lazard Freres & Co. LLC 30 Rockefeller Plaza New York, NY 10020
12 Page 12 of 13 Pages
Principal Occupation Name and Business Address Citizenship - ---- -------------------- ----------- William R. Loomis, Jr. Chief Executive Officer USA and Managing Director of Lazard Freres & Co. LLC and Chief Executive Officer of Lazard LLC Lazard Freres & Co. LLC 30 Rockefeller Plaza New York, NY 10020 Georges Ralli Managing Director of Lazard Freres S.A.S. France Lazard Freres S.A.S. 121 Boulevard Haussmann 75382 Paris Cedex 08 France Bruno M. Roger Managing Director of Lazard Freres S.A.S. France Lazard Freres S.A.S. 121 Boulevard Haussmann 75382 Paris Cedex 08 France William J. Rucker Managing Director of Lazard Brothers & United Kingdom Co., Limited Lazard Brothers & Co., Limited 21 Moorfields London EC2P 2HT United Kingdom David L. Tashjian Managing Director of USA Lazard Freres & Co. LLC Lazard Freres & Co. LLC 30 Rockefeller Plaza New York, New York 10020
13 Page 13 of 13 Pages SCHEDULE 4 Executive Officers of Lazard Freres Real Estate Investors L.L.C. The business address for each of the following persons is 30 Rockefeller Plaza, New York, NY 10020
Name of Officer Present and Principal Occupation - --------------- -------------------------------- Robert C. Larson Chairman Michael G. Medzigian President and Chief Executive Officer Mark S. Ticotin Principal and Executive Vice President John A. Moore Principal and Chief Financial Officer Marjorie L. Reifenberg Principal, General Counsel and Secretary Robert S. Underhill Principal Henry C. Herms Controller
EX-99.1 3 y52699ex99-1.txt PURCHASE AGREEMENT 1 PURCHASE AGREEMENT THIS PURCHASE AGREEMENT (this "Agreement"), dated as of August 14, 2001 is by and between Security Capital Preferred Growth Incorporated, a Maryland corporation (the "Purchaser"), and LF Strategic Realty Investors L.P., a Delaware limited partnership (the "Seller"). WHEREAS, the Seller desires to sell to the Purchaser, and the Purchaser desires to purchase from the Seller, 8,000,000 shares of Series D Cumulative Convertible Preferred Stock (the "Series D Preferred Shares") of United Dominion Realty Trust, Inc., a Virginia corporation (the "Company"), on the terms and subject to the conditions described herein. NOW, THEREFORE, in consideration of the premises and of the mutual covenants, agreements and warranties herein contained, the parties hereto agree as follows: 1 PURCHASE AND SALE OF SERIES D PREFERRED SHARES. Subject to the terms and conditions set forth in this Agreement, at the Closing (as hereinafter defined), the Seller agrees to sell, assign, transfer, convey and deliver to the Purchaser, free and clear from any liens, encumbrances or defects of title (collectively, "Liens"), and the Purchaser agrees to accept, acquire and take assignment and delivery of, all of the Series D Preferred Shares. 2 CLOSING; PAYMENT OF PURCHASE PRICE. a Time; Purchase Price. Subject to the terms and conditions set forth herein, the closing (the "Closing") of the transactions described herein shall occur on the fifth business day following the execution and delivery (a) by the Company and the Seller of the Waiver (as herein defined) and (b) by the Company and the Purchaser of the New Investment Agreement (as herein defined), or on such other date as shall be agreed upon by the Seller and the Purchaser. At the Closing, the Purchaser shall pay the Seller cash in the amount set forth on Schedule A hereto (the "Purchase Price"). The Purchase Price shall be paid to the Seller by means of a wire transfer of immediately available funds to a bank account designated by the Seller in writing. The Closing and the deliveries required thereby shall be made at the offices of the Purchaser, 11 South LaSalle Street, Suite 200, Chicago, Illinois 60603 or at such other place or in such other manner as shall be agreed upon by the Seller and the Purchaser. b The Purchaser's Conditions to Closing. The obligation of the Purchaser to proceed with the Closing shall be conditional upon: (i) Receipt by the Purchaser from the Seller of a certificate, dated the day of Closing, of an executive officer of the general partner of the Seller, in a form satisfactory to the Purchaser, to the effect that all representations 2 and warranties made by the Seller in this Agreement are true and correct in all material respects as of the Closing; (ii) The Seller and the Company shall have executed the Waiver and Release Agreement substantially in the form of Exhibit A (the "Waiver"); (iii) The Company shall have executed the investment agreement substantially in the form of Exhibit B (the "New Investment Agreement"); and (iv) There shall not have been any amendment to the Company's Restated Articles of Incorporation since January 21, 1999. c The Seller's Conditions to Closing. The obligation of the Seller to proceed with the Closing shall be conditional upon: (i) Receipt by the Seller from the Purchaser of a certificate, dated the day of Closing, of an executive officer of the Purchaser, in a form satisfactory to the Seller, to the effect that all representations and warranties made by the Purchaser in this Agreement are true and correct in all material respects as of the Closing; and (ii) The Company shall have executed the Waiver. d Deliveries. The Closing shall be completed when each of the following has been delivered, all of which shall be deemed to have taken place simultaneously: (i) The Purchaser shall have delivered to the Seller the Purchase Price; (ii) The Seller shall have delivered to the Purchaser a stock certificate or certificates evidencing all of the Series D Preferred Shares, which certificate(s) shall be duly endorsed in blank or accompanied by duly executed stock powers; and (iii) All of the Purchaser's Conditions to Closing and the Seller's Conditions to Closing have been satisfied. 3 REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller hereby represents and warrants to the Purchaser: a Due Organization. The Seller is a limited partnership duly organized, validly existing and in good standing under the laws of Delaware, with all requisite power to own its properties and to conduct its business as now conducted. 3 b Authorization. The Seller has the requisite power and authority to enter into this Agreement and to carry out its obligations hereunder. This Agreement has been duly and validly executed and delivered by the Seller and constitutes the legal, valid and binding agreement of the Seller, enforceable against the Seller in accordance with its terms, except to the extent that such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other laws affecting the enforcement of creditors' rights generally or by general equitable principles. c Series D Preferred Shares. The Series D Preferred Shares have been fully paid and are nonassessable. The Seller is the beneficial and legal owner of record of all of the Series D Preferred Shares and holds the Series D Preferred Shares free and clear of any and all Liens, except for certain restrictions set forth in the Investment Agreement (as hereinafter defined), a waiver of which the Seller has obtained from the Company or will obtain from the Company prior to the Closing. The Seller has no other agreements, arrangements or understandings, whether by means of a right of first refusal or first purchase or otherwise, with respect to a sale or other disposition of the Series D Preferred Shares. Except for the Investment Agreement, there are no shareholder agreements, voting trusts or other agreements or understandings to which the Seller is a party or by which it is bound relating to the Series D Preferred Shares. d Consents. Except for such waivers related to the Investment Agreement as have been obtained or will be obtained before the Closing, no consent, authorization or approval of, filing or registration with, waiver of any right of first refusal or first offer from, or cooperation from, any governmental authority or any other person not a party to this Agreement is necessary in connection with the execution, delivery and performance by the Seller of this Agreement or the consummation by the Seller of the transactions contemplated hereby. e No Conflicts. The execution, delivery and performance by the Seller of this Agreement and the consummation by the Seller of the transactions contemplated hereby do not and will not (i) violate any law applicable to the Seller; (ii) except for restrictions under the Investment Agreement, a waiver of which the Seller has obtained from the Company or will obtain from the Company prior to the Closing, violate or conflict with, result in a breach or termination of, constitute a default or give any third party any additional right (including a termination right) under, permit cancellation of, result in the creation of any Lien upon any of the assets of the Seller pursuant to any contract to which the Seller is a party or by which the Seller or any of its assets are bound; or (iii) violate or conflict with any provision of any of the limited partnership agreement or similar organizational instruments of the Seller. f No Default or Violations. The Seller has no Knowledge of any payment or other default by the Company under the Series D Preferred Shares or of any current or past -3- 4 violation by the Company of its Restated Articles of Incorporation related to the Series D Preferred Shares. g Litigation Against the Seller. To the knowledge of the Seller, there are no actions, suits, mediations, arbitrations, regulatory proceedings or other litigation, proceedings or governmental investigations pending or threatened against or affecting the Seller or any of its affiliates concerning the Series D Preferred Shares or which might reasonably be expected to impede the consummation of the transactions contemplated hereby, and the Seller is not aware of any facts or circumstances which may give rise to any of the foregoing. h Brokers. No broker, finder or investment banker is entitled to any brokerage, finder's or other fee or commission from any party in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Seller. i No General Solicitation. The Series D Preferred Shares have not been offered or sold by the Seller by any form of general solicitation or general advertising. j No Undisclosed Material Facts. There is no fact of which the Seller has Knowledge that has not been publicly disclosed which could reasonably be expected to have a material adverse effect on the condition (financial or otherwise), earnings, business, prospects or operations of the Company. k No Material Adverse Change. To the Knowledge of the Seller, since December 31, 2000, there has not occurred any material adverse change in the condition (financial or otherwise), earnings, business, prospects or operations of the Company. l Investment Agreement. The Seller has previously delivered to the Purchaser a true and correct copy of the Investment Agreement, effective as of December 7, 1998, by and between the Seller, the Company and certain other parties (the "Investment Agreement"). There have been no amendments or modifications to, or waivers, written or verbal, related to, the Investment Agreement, except for the Waiver. Except with respect to Section 3(g), the term "Knowledge" means, with respect to the Seller, the actual knowledge of either Robert C. Larson, Chairman of Lazard Freres Real Estate Investors L.L.C. ("LFREI"), or Robert S. Underhill, Principal of LFREI, and expressly excludes the knowledge of any other shareholder, director, trustee, partner, member, director, officer, manager, employee, agent or representative of Seller or any of Seller's affiliates. 4 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser hereby represents and warrants to the Seller as follows: -4- 5 a Due Organization. The Purchaser is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Maryland, with all requisite power to own its properties and to conduct its business as now conducted. b Authorization. The Purchaser has the requisite power to enter into this Agreement and to carry out its obligations hereunder. This Agreement has been duly authorized, executed and delivered by the Purchaser and constitutes a valid and binding agreement, enforceable against the Purchaser in accordance with its terms except to the extent that such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other laws affecting the enforcement of creditors' rights generally or by general equitable principles. c Brokers. No broker, finder or investment banker is entitled to any brokerage, finder's or other fee or commission from any party in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Purchaser. d Sophistication of the Purchaser. The Purchaser has such knowledge and experience in financial and business matters as to be able to evaluate the merits and risks of the acquisition of the Series D Preferred Shares, and, having had access to information as it has considered necessary, reasonably believes that it is able to bear those risks. The Purchaser is purchasing the Series D Preferred Shares for investment and not with a view to or for sale in connection with any public distribution thereof within the meaning of the Securities Act of 1933, as amended (the "Securities Act"). The Purchaser understands that the Series D Preferred Shares have not been registered under the Securities Act and are being offered and sold pursuant to exemptions therefrom. 5 COVENANTS. (a) Each of the Seller and the Purchaser agrees to use its best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other in doing, in the most expeditious manner practicable, all things necessary, proper or advisable to fulfill all conditions to the Closing, including obtaining the Company's approval of the New Investment Agreement and the Waiver. (b) On and after the date of this Agreement and prior to the date that this Agreement is terminated in accordance with Section 6, neither the Seller nor any of its affiliates shall make an offer or proposal related to, hold any discussions regarding, negotiate with respect to, or invite, initiate, solicit or encourage, directly or indirectly, the making of any proposal or offer related to, the purchase or sale of the Series D Preferred Shares. -5- 6 6 TERMINATION. This Agreement shall be terminable: (a) by the parties upon mutual written agreement; (b) by either party, if the other party materially breaches any covenant, representation or warranty contained herein, and such breach is not cured within five business days after the delivery of written notice by the nonbreaching party; and (c) by either party at any time after August 25, 2001 upon written notice to the other party, provided that the terminating party is not then in breach of any material provision of this Agreement. Upon termination of this Agreement, all obligations of each party hereunder shall terminate except those obligations pursuant to Section 7 and Section 11. Neither party shall have any liability to the other party upon a termination of this Agreement, except for liability arising from the breach of Section 5 hereof or in the event such termination arises by reason of the material breach of a covenant, representation or warranty by a party hereto. 7 EXPENSES. Each party hereto shall bear its own expenses with respect to this transaction. 8 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. 9 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, facsimile, telecopier or by mail (registered or certified mail, postage prepaid, return receipt requested) to the respective parties as follows: If to the Purchaser: Security Capital Preferred Growth Incorporated 11 South LaSalle Street Chicago, Illinois 60603 Attn: David E. Rosenbaum David T. Novick Facsimile: 312-345-5888 With a copy to: Mayer, Brown & Platt 190 S. LaSalle Street -6- 7 Chicago, Illinois 60603 Attn: Michael A. Campbell Facsimile: 312-701-7711 If to the Seller: LF Strategic Realty Investors L.P. c/o Lazard Freres Real Estate Investors L.L.C. 30 Rockefeller Plaza, 50th Floor New York, New York 10020 Attn: Robert S. Underhill Facsimile: 212-332-5736 and Attn: General Counsel Facsimile: 212-332-1793 After the Closing, the Seller shall promptly forward all notices or other correspondence it receives relating to the Series D Preferred Shares to the Purchaser at the above address. 10 FURTHER ASSURANCES. Upon request of the Purchaser, the Seller shall execute and deliver such other instruments of conveyance, assignment, transfer and delivery and take such other actions as the Purchaser reasonably may request in order to consummate the transactions contemplated by this Agreement. 11 PUBLIC DISCLOSURE. Except as required by law and communications to partners of the Seller and to the shareholders of the Purchaser, respectively, neither the Seller nor the Purchaser may publicly disclose the existence of the transactions contemplated by this Agreement, including a summary of the terms of such transactions, unless such party obtains the consent of the other party hereto, which consent shall not be unreasonably withheld or delayed. 12 WAIVER. No party may waive any of the terms or conditions of this Agreement except by a duly signed writing referring to the specific provision to be waived. 13 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 with respect to the matters set forth herein. 14 SEVERABILITY. If any provision of this Agreement shall be held invalid, illegal or unenforceable, the validity, legality or enforceability of the other provisions hereof shall not be affected thereby, and there shall be deemed substituted for the provision at issue a valid, legal and enforceable provision as similar as possible to the provision at issue. -7- 8 15 CAPTIONS. The Section references 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. 16 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. 17 GOVERNING LAW. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Illinois. [SIGNATURES ON FOLLOWING PAGE] -8- 9 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered as of the day and year first written above. SECURITY CAPITAL PREFERRED GROWTH INCORPORATED By: /s/ David E. Rosenbaum --------------------------------------------- Name: David E. Rosenbaum ------------------------------------------- Title: Senior Vice President ------------------------------------------ LF STRATEGIC REALTY INVESTORS L.P. By: Lazard Freres Real Estate Investors L.L.C. Its: General Partner By: /s/ Robert S. Underhill --------------------------------------------- Name: Robert S. Underhill ------------------------------------------- Title: Principal ------------------------------------------ EX-99.2 4 y52699ex99-2.txt WAIVER AND RELEASE AGREEMENT 1 EXECUTION COPY WAIVER AND RELEASE AGREEMENT WAIVER AND RELEASE AGREEMENT, dated as of August 14, 2001 (this "Agreement"), by and between United Dominion Realty Trust, Inc., a Virginia corporation (the "Company"), and LF Strategic Realty Investors L.P., a Delaware limited partnership (the "Shareholder"). WHEREAS, the Shareholder currently owns 8,000,000 shares of Series D Cumulative Convertible Preferred Stock of the Company (the "Preferred Stock"), and desires to sell all of the Preferred Stock to Security Capital Preferred Growth Incorporated, a Maryland corporation (the "Purchaser"); WHEREAS, the Company, the Shareholder and certain other parties, entered into an Investment Agreement, effective as of December 7, 1998 (the "Investment Agreement"), which provides, among other things, certain restrictions on the Shareholder's ability to transfer the Preferred Stock and an obligation on the part of the Company to file a registration statement (the "Registration Statement") with the Securities and Exchange Commission with respect to the shares of common stock of the Company issuable upon conversion of the Preferred Stock; WHEREAS, the Company has agreed to waive all transfer restrictions related to the Preferred Stock with respect to the sale of the Preferred Stock to the Purchaser, including those under the Investment Agreement; and WHEREAS, the Shareholder has agreed to release the Company from any and all liability related to the Company's failure to timely file the Registration Statement. NOW, THEREFORE, in consideration of the foregoing and the covenants of the parties set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, subject to the terms and conditions set forth herein, the parties hereby agree as follows: Section 1. Transfer Restrictions. The Company hereby waives any and all transfer restrictions on the Preferred Stock, including the transfer restrictions contained in Sections 3.1 and 5.1 of the Investment Agreement, solely with respect to the sale to the Purchaser of the Preferred Stock. Section 2. Release. The Shareholder, for itself and on behalf of its successors and assigns, hereby releases, remises and forever discharges the Company and its affiliates, officers, directors, shareholders, employees, agents, personal representatives, successors and assigns from all manner of actions, causes of action, suits, claims and demands, whatsoever, related to the Company's failure to timely file the Registration Statement and its method of calculating and paying dividends with respect to the Preferred Stock for periods prior to, and including, the period ended July 31, 2001. 2 Section 3. Expenses. Shareholder shall pay the Company's reasonable attorneys' fees in connection with the consummation of the transactions contemplated hereby. Section 4. Indemnity. Shareholder shall indemnify and hold the Company harmless against all claims, demands, actions, liabilities, losses, damages, lawsuits and other proceedings at law or in equity, judgments, awards, commissions, fees, costs and expenses (including, without limitation, attorneys' fees and expenses), of every kind and nature incurred by the Company (a) in connection with any breach of any of the representations and warranties made by the Shareholder in this Agreement, (b) arising out of any breach or alleged breach by Shareholder of the Purchase Agreement between Shareholder and Purchaser and (c) arising primarily from any dispute between the Shareholder and any third party (other than the Company) relating to the transactions contemplated by this Agreement, provided, that the Company shall not be entitled to indemnity under this paragraph for any matters relating primarily to its decision to grant the waiver referred to in Section 1 of this Agreement. Section 5. Representations and Warranties of the Shareholder. (a) Authorization. Shareholder has all requisite power and authority to enter into this Agreement. This Agreement and the transactions contemplated hereby have been duly authorized by all necessary partnership action on the part of Shareholder and its partners and no further action is required on the part of the Shareholder to authorize this Agreement and the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by the Shareholder and is the valid and binding obligation of the Shareholder, enforceable against the Shareholder in accordance with its terms, except as such enforceability may be limited by (a) bankruptcy, insolvency, reorganization, moratorium or other laws affecting the rights of creditors generally and (b) principles of equity, whether considered at law or in equity. (b) No Violation or Conflict. The execution, delivery and performance by the Shareholder of this Agreement and the consummation of the transactions contemplated hereby do not and will not conflict with or violate (i) the certificate of limited partnership or partnership agreement of the Shareholder, (ii) any law, rule, regulation, judgment, order or decree binding on the Shareholder or (iii) any other contract binding on the Shareholder. Section 6. Representations and Warranties of the Company. (a) Authorization. Company has all requisite corporate power and authority to enter into this Agreement. This Agreement and the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Company and no further action is required on the part of the Company to authorize this Agreement and the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by the Company and is the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by (a) bankruptcy, insolvency, reorganization, moratorium or other laws affecting the rights of creditors generally and (b) principles of equity, whether considered at law or in equity. 2 3 (b) No Violation or Conflict. The execution, delivery and performance by the Company of this Agreement and the consummation of the transactions contemplated hereby do not and will not conflict with or violate (i) the Articles of Incorporation of the Company, (ii) any law, rule, regulation, judgment, order or decree binding on the Company or (iii) any other contract binding on the Company. Section 7. Public Announcements; Confidentiality. Each party hereto shall keep confidential, and shall cause its directors, officers, employees, agents, representatives and advisors to keep confidential, any information concerning this transaction. Neither party hereto shall issue or make any reports, statements or releases to the public or generally with respect to this Agreement or the transactions contemplated hereby without the prior written approval of the other party, which consent shall not be unreasonably withheld or delayed. Notwithstanding anything to the contrary contained herein, (a) the Shareholder shall be permitted to make disclosures regarding this transaction to its limited and general partners and (b) each party shall be permitted to make disclosures or announcements regarding this transaction (i) to the extent required by statute, rule (including New York Stock Exchange rules and rules and regulations of the Securities and Exchange Commission), regulation or judicial process, or (ii) to the extent such information is generally available to the public. Section 8. Entire Agreement. This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the subject matter hereof. Section 9. Amendment. No supplement, modification, waiver or termination of this Agreement shall be binding unless executed in writing by the party to be bound thereby. Section 10. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be enforceable against the parties actually executing such counterparts, and all of which together shall constitute one instrument. Section 11. Severability. In the event that any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement shall continue in full force and effect without said provision. Section 12. Section Titles. Section titles are for descriptive purposes only and shall not control or alter the meaning of this Agreement as set forth in the text. Section 13. Effective Time. The waiver granted under Section 1 of this Agreement shall be effective immediately prior to, and the release granted under Section 2 of this Agreement shall be effective upon, the closing of the sale of the Preferred Stock to the Purchaser, provided that the Company shall have received at or prior to such closing an executed Investment Agreement from the Purchaser in the form attached as Exhibit A, and provided, further, that such closing shall have occurred within 30 days of the date of this Agreement. Section 14. Successors and Assigns. This Agreement shall be binding upon the parties hereto and their respective successors and assigns. 3 4 Section 15. Governing Law. This Agreement shall be governed in all respects by the laws of the State of New York. [Signature Page Follows.] 4 5 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. UNITED DOMINION REALTY TRUST, INC. By: /s/ Thomas W. Toomey ------------------------------------------- Name: Thomas W. Toomey ----------------------------------------- Title: President and Chief Executive Officer ---------------------------------------- LF STRATEGIC REALTY INVESTORS L.P. By: Lazard Freres Real Estate Investors L.L.C. Its: General Partner By: /s/ Robert S. Underhill ------------------------------------------- Name: Robert S. Underhill ----------------------------------------- Title: Principal ---------------------------------------- 5 -----END PRIVACY-ENHANCED MESSAGE-----