8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of

the Securities Exchange Act of 1934

Date of Report (Date of Earliest Event Reported): February 25, 2013

Landmark Apartment Trust of America, Inc.

(Exact name of registrant as specified in its charter)

Maryland	000-52612	20-3975609
(State or other jurisdiction of incorporation)	(Commission File Number)	(I.R.S. Employer Identification No.)

4901 Dickens Road, Suite 101 Richmond, Virginia	23230
(Address of principal executive offices)	(Zip Code)

Registrant’s telephone number, including area code: (804) 237-1335

Former name or former address, if changed since last report: Not Applicable

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 3.02 Unregistered Sales of Equity Securities.

Securities Purchase Agreement

On February 27, 2013, Landmark Apartment Trust of America, Inc. (the “Company”) entered into a Securities Purchase Agreement (the “Securities Purchase Agreement”) with 2335887 Limited Partnership (the “OPTrust Cash Investor”), an affiliate of OPSEU Pension Trust, pursuant to which the Company issued and sold, and the OPTrust Cash Investor purchased, for cash, 1,000,000 shares of the Company’s 9.75% Series A Non-Convertible Preferred Stock (the “Series A Preferred Stock”), at a price of $10.00 per share, for an aggregate consideration of $10,000,000. Robert Douglas, a member of the Company’s board of directors, is an affiliate of OPSEU Pension Trust. The Series A Preferred Stock have a liquidation preference of $10.00 per share and entitle the holders to cumulative cash distributions at an annual rate of 9.75% of the $10.00 per share liquidation preference.

The Securities Purchase Agreement contains representations, warranties and covenants of the parties thereto that are customary for transactions of this type. In connection with the issuance and sale by the Company and the purchase by the OPTrust Cash Investor of the Series A Preferred Stock, the Company paid the OPTrust Cash Investor a purchase fee in the aggregate amount of $100,000 (or 1% of the aggregate purchase price paid by OPTrust Cash Investor). In addition, the Securities Purchase Agreement provides that the Cash Investor’s existing right of first offer to purchase its pro rata portion of any preferred equity securities that the Company may from time to time propose to issue and sell will continue to be applicable until the redemption of all shares of the Series A Preferred Stock and the Company’s 9.75% Series B Non-Convertible Preferred Stock. However, the preemptive rights may terminate earlier under certain circumstances, including in the event the OPTrust Cash Investor, together with its affiliates, ceases to hold any shares of the Company’s preferred stock.

The closing of the issuance and sale of the Series A Preferred Stock took place on February 27, 2013 simultaneously with the execution and delivery of the Securities Purchase Agreement. The shares of the Series A Preferred Stock were issued and sold by the Company to the OPTrust Cash Investor in a private placement pursuant to Section 4(2) under the Securities Act of 1933, as amended and Regulation D promulgated thereunder. The cash proceeds from the sale of the Series A Preferred Stock will be used by the Company primarily for acquisitions of capital assets and leases, retirement of debt, payment of certain transaction costs and general corporate purposes. The foregoing summary description of the material terms of the Securities Purchase Agreement is qualified in its entirety by the actual terms of the Securities Purchase Agreement, a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.

Issuance of Warrants to Purchase Common Stock

On February 27, 2012, the Company issued to the OPTrust Cash Investor a non-detachable warrant to purchase an aggregate of $10 million in shares of the Company’s common stock at an exercise price per share of common stock equal to: (i) $9.00 if the warrants are being exercised in connection with a “change of control” (as such term is defined in the form of warrant attached as an exhibit to the Securities Purchase Agreement); or (ii) the greater of $9.00 and 80.0% of the public offering price of the Company’s common stock in the Company’s first underwritten public offering, in conjunction with which the Company’s common stock is listed for trading on the New York Stock Exchange, the Nasdaq Stock Market and/or the Toronto Stock Exchange (“IPO”), if the warrant is being exercised during the 60-day period following the IPO.

The warrant will become exercisable at any time and from time to time following the completion of an IPO and in connection with a change of control of the Company. In general, the warrant will immediately expire and cease to be exercisable upon the earliest to occur of: (i) the close of business on the later of February 27, 2016 and the date on which the stapled shares of preferred stock become

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mandatorily redeemable; (ii) the close of business on the date that is 60 days after the completion of the Company’s IPO (or the next succeeding business day); (iii) the consummation of a “Qualified Company Acquisition” (as such term is defined in the form of Warrant attached as an exhibit to the Securities Purchase Agreement); and (iv) the cancellation of the warrant by the Company, at its option or at the option of the warrant holder, in connection with a change of control (other than a Qualified Company Acquisition).

The non-detachable warrant was issued by the Company to the OPTrust Cash Investor in a private placement pursuant to Section 4(2) under the Securities Act and Regulation D promulgated thereunder.

The foregoing summary description of the material terms of the warrant to purchase shares of the Company’s common stock is qualified in its entirety by the actual terms of the warrant, a copy of which is filed as Exhibit 4.1 to this Current Report on Form 8-K, and is incorporated herein by reference.

Registration Rights Agreement

In connection with the transactions contemplated by the Securities Purchase Agreement, on February 27, 2013, the Company entered into a registration rights agreement for the benefit of the OPTrust Cash Investor with respect to the shares of the Company’s common stock that will be issuable to it upon the exercise of the warrant issued to the OPTrust Cash Investor. The registration rights agreement contains terms that provide for demand and piggyback registration rights. The registration rights agreement has been filed as Exhibit 4.2 to this Current Report on Form 8-K and is incorporated by reference herein.

Waiver of Stock Ownership Limit

In connection with the transactions contemplated by the Securities Purchase Agreement, the Board of Directors of the Company (the “Board of Directors”) granted to the OPSEU Pension Trust, the OPTrust Cash Investor, and all of the entities in which the OPSEU Pension Trust owns (directly or indirectly) 100% of the equity interests (collectively, the “OP Trust Group”) a conditional waiver from the stock ownership limit found in the Company’s charter and described below, allowing the OP Trust Group to own (1) 100% of the Series A Preferred Stock and (2) the sum of (a) 7% of the outstanding common stock of the Company and (b) the common stock acquired in connection with the redemption of limited partnership units of the Company’s operating partnership held by the OP Trust Group or upon the exercise of the warrants held by the OP Trust Group. Further, in compliance with the procedures outlined in the Company’s charter, the Board of Directors has decreased the stock ownership limit for all other stockholders from 9.9% (in value or the number of shares, whichever is more restrictive) of the aggregated outstanding shares of common stock of the Company or more than 9.9% in value of the aggregate of the outstanding shares of capital stock of the Company, to 7% in value or number of shares (whichever is more restrictive) of the aggregate of the outstanding shares of common stock of the Company and 7% in value of the aggregate outstanding shares of capital stock of the Company. The decreased stock ownership limit will not be effective for any stockholder whose percentage ownership in shares of the Company’s common stock is in excess of such decreased ownership limits until such time as such stockholder’s percentage of shares equals or falls below the decreased ownership limit; any further acquisition of shares of capital stock of the Company in excess of the ownership limitation will be in violation of the new ownership limits.

Item 3.03 Material Modification to Rights of Security Holders.

The information set forth (a) above under Item 3.02 regarding the waiver of stock ownership limit and (b) below under Item 5.03 is incorporated herein by reference.

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Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

On February 25, 2013, in connection with the transactions contemplated by the Securities Purchase Agreement, the Company filed an articles supplementary with the Maryland State Department of Assessments and Taxation (“SDAT”), increasing the number of authorized shares of the Series A Preferred Stock from 4,000,000 to an aggregate of 5,000,000 shares. The amended and restated articles supplementary became effective simultaneously with their filing with the SDAT on February 25, 2013. A copy of the articles supplementary increasing the number of the authorized shares of the Series A Preferred Stock is filed as Exhibit 3.1 to this Current Report on Form 8-K and is incorporated herein by reference.

Item 9.01 Exhibits and Financial Statements.

d. Exhibits

Exhibit Number	Description
3.1	Articles Supplementary increasing the number of authorized shares of the 9.75% Series A Cumulative Non-Convertible Preferred Stock, par value $0.01 per share, of Landmark Apartment Trust of America, Inc., dated February 25, 2013
4.1	Non-detachable warrant to purchase shares of common stock, dated February 27, 2013
4.2	Registration Rights Agreement, dated February 27, 2013, by and between Landmark Apartment Trust of America, Inc. and 2335887 Limited Partnership
10.1	Securities Purchase Agreement, dated February 27, 2013, by and between Landmark Apartment Trust of America, Inc. and 2335887 Limited Partnership

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

March 4, 2013	Landmark Apartment Trust of America, Inc.
	By:	/s/ B. Mechelle Lafon
	Name:	B. Mechelle Lafon
	Title:	Chief Financial Officer, Treasurer and Secretary

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EXHIBIT INDEX

Exhibit Number	Description
3.1	Articles Supplementary increasing the number of authorized shares of the 9.75% Series A Cumulative Non-Convertible Preferred Stock, par value $0.01 per share, of Landmark Apartment Trust of America, Inc., dated February 25, 2013
4.1	Non-detachable warrant to purchase shares of common stock, dated February 27, 2013
4.2	Registration Rights Agreement, dated February 27, 2013, by and between Landmark Apartment Trust of America, Inc. and 2335887 Limited Partnership
10.1	Securities Purchase Agreement, dated February 27, 2013, by and between Landmark Apartment Trust of America, Inc. and 2335887 Limited Partnership

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EX-3.1

Exhibit 3.1

LANDMARK APARTMENT TRUST OF AMERICA, INC.

ARTICLES SUPPLEMENTARY

Landmark Apartment Trust of America, Inc., a Maryland corporation (the “Corporation”), hereby certifies to the State Department of Assessments and Taxation of Maryland (the “Department”) that:

FIRST: Under a power contained in Article V of the charter of the Corporation (the “Charter”), the Board of Directors of the Corporation (the “Board of Directors”), by duly adopted resolutions, classified and designated an additional 1,000,000 authorized but unissued shares of preferred stock, par value $0.01 per share, of the Corporation (the “Shares”) as shares of 9.75% Series A Cumulative Non-Convertible Preferred Stock, par value $0.01 per share, of the Corporation (the “Series A Preferred Stock”). The total number of shares of Series A Preferred Stock which the Corporation has authority to issue after giving effect to these Articles Supplementary is 5,000,000. There has been no increase in the authorized shares of stock of the Corporation effected by these Articles Supplementary.

SECOND: A description of the preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications, and terms and conditions of redemption of the Series A Preferred Stock is contained in the Articles Supplementary filed with, and accepted for record by, the Department on August 2, 2012.

THIRD: The Shares have been classified and designated by the Board of Directors under the authority contained in the Charter.

FOURTH: These Articles Supplementary have been approved by the Board of Directors in the manner and by the vote required by law.

FIFTH: The undersigned acknowledges these Articles Supplementary to be the corporate act of the Corporation and, as to all matters or facts required to be verified under oath, the undersigned acknowledges that, to the best of his knowledge, information and belief, these matters and facts are true in all material respects and that this statement is made under the penalties for perjury.

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF, the Corporation has caused these Articles Supplementary to be executed under seal in its name and on its behalf by its Chief Executive Officer and attested to by its Secretary on this 25th day of February, 2013.

ATTEST:		LANDMARK APARTMENT TRUST OF AMERICA, INC.
/s/ B. Mechelle Lafon			By:	/s/ Stanley J. Olander, Jr. (SEAL)
Name:	B. Mechelle Lafon		Name:	Stanley J. Olander, Jr.
Title:	Secretary		Title:	Chief Executive Officer

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EX-4.1

Exhibit 4.1

NEITHER THIS WARRANT NOR ANY UNDERLYING SECURITIES HAVE BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY STATE SECURITIES LAWS, AND NEITHER THIS WARRANT NOR ANY UNDERLYING SECURITIES MAY BE OFFERED FOR SALE OR SOLD, ASSIGNED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION, EXCEPT PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT, UNLESS SUCH OFFER, SALE, ASSIGNMENT OR OTHER TRANSFER MAY BE EFFECTED WITHOUT SUCH REGISTRATION.

THIS WARRANT IS NOT DETACHABLE FROM THE SHARES OF PREFERRED STOCK OF THE ISSUER WITH WHICH IT HAS BEEN ISSUED, EXCEPT TO THE EXTENT EXPRESSLY PROVIDED HEREIN.

LANDMARK APARTMENT TRUST OF AMERICA, INC.

NON-DETACHABLE WARRANT TO PURCHASE SHARES OF COMMON STOCK

For value received and subject to the provisions set forth in this warrant (this “Warrant”), 2335887 Limited Partnership, an Ontario limited partnership, and its permitted assigns are entitled to purchase from Landmark Apartment Trust of America, Inc., a Maryland corporation (the “Company”), the number of Shares specified below at the Exercise Price per share specified below at the time or times during the term of this Warrant specified below.

Warrant Date:	February 27, 2013
Warrant Coverage:	$10,000,000.
Shares:	The number of Shares for which this Warrant is exercisable shall equal the Warrant Coverage divided by the Exercise Price, rounded down to the nearest whole number of Shares.
Exercise Price:	See Section 1(g) below.
Term of Warrant:	See Section 2 below.
Series of Warrant:	Series A Warrants.

The number of Shares for which this Warrant is exercisable and the Exercise Price are subject to further adjustment as specified in Section 6.

This Warrant has been issued pursuant to either (x) the Securities Purchase Agreement dated as of the Closing Date (the “Securities Purchase Agreement”) by and between the Company and 2335887 Limited Partnership, an Ontario limited partnership, (y) the Securities Purchase Agreement dated as of August 3, 2012 (the “August SPA”) by and among the Company, 2335887 Limited Partnership, an Ontario limited partnership, DK Landmark, LLC, a Florida limited liability company, and Elco Landmark Residential Holdings LLC, a Delaware limited liability company (“ELRH”), or (z) the Master Contribution and Recapitalization Agreement dated as of

August 3, 2012 (the “Master Contribution Agreement” and, together with the Securities Purchase Agreement and the August SPA, the “Purchase Agreements” and each a “Purchase Agreement”) by and among the Company, ELRH and the other parties thereto. This Warrant has been issued as one in a series of substantially similar warrants issued or to be issued, together with shares of one or more series of the Company’s preferred stock, pursuant to the Purchase Agreements (all such warrants collectively, including this Warrant, the “Transaction Warrants”). Any provision of this Warrant may be amended, waived or modified with the written consent of the Company (as authorized by its Board of Directors) and the Holder of this Warrant. In addition, if any amendment, waiver or modification is to be made to all outstanding Transaction Warrants and affects all holders thereof equally (except for such differences as arise solely from the differing warrant coverages thereof), then the Holder of this Warrant agrees that such amendment, waiver or modification may be effected with the written consent of the Company (as authorized by its Board of Directors) and the holders of Transaction Warrants representing at least a majority of the shares of the Company’s capital stock underlying all then outstanding Transaction Warrants. In addition, if any amendment, waiver or modification is to be made to all outstanding Series Warrants, then the Holder of this Warrant agrees that such amendment, waiver or modification may be effected with the written consent of the Company (as authorized by its Board of Directors) and the holders of Series Warrants representing at least a majority of the shares of the Company’s capital stock underlying all then outstanding Series Warrants. The Company agrees that, in the event that any amendment, modification or waiver is made to any Transaction Warrant for the benefit of the holder thereof that is not concurrently made to this Warrant, then the Company shall promptly provide written notice to the Holder of such amendment, waiver or modification and, if requested in writing by the Holder, shall forthwith make such amendment, waiver or modification to this Warrant.

1. Definitions. The following capitalized terms used in this Warrant shall have the following meanings:

(a) “Affiliate” means, in respect of any Person, any other Person that is directly or indirectly controlling, controlled by, or under common control with such Person, and the term “control” (including the terms “controlled by” and “under common control with”) means having, directly or indirectly, the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities or by contract or otherwise.

(b) “Affiliated Group” means any group of two or more Persons comprised of a Person (the “Parent”) and its direct or indirect wholly owned Affiliates (it being understood that an Affiliated Group may, but need not, include the Parent).

(c) “Applicable Stock” means the Common Stock.

(d) “Change of Control” means any transaction or series of related transactions that both (i) constitutes a “Change of Control” (as defined in the Stapled Preferred Articles) and (ii) pursuant thereto, assuming for this purpose that the Shares were issued and outstanding immediately prior thereto, the holder of the Shares would be entitled to receive consideration in respect of the Shares in the form of cash, property, securities of a Person other than the Company, or a combination of the foregoing.

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(e) “Closing Date” means February 27, 2013.

(f) “Common Stock” means (i) the common stock, $.01 par value per share, of the Company, (ii) upon any exchange, reclassification or other change in such common stock, any security into which such common stock may be exchanged, reclassified or otherwise changed, and (iii) upon any further exchange, reclassification or other change in any security described in this definition, any security into which the securities described in this definition may be further exchanged, reclassified or otherwise changed.

(g) “Exercise Price” means the exercise price per share of Applicable Stock and shall equal: (i) if this Warrant is exercised pursuant to Section 3(c) in connection with a Change of Control, the Floor Price, and (ii) if this Warrant is exercised pursuant to Section 3(b), the greater of (x) the Floor Price and (y) 80% of the IPO Price.

(h) “Floor Price” means $9.00 per share, subject to adjustment as specified in Section 6.

(i) “Holder” means the initial holder of this Warrant set forth in the first paragraph of this Warrant and any other person or entity which becomes a holder of this Warrant pursuant to the terms of this Warrant.

(j) “IPO” means the consummation of the initial closing (without regard for any closing of any associated “green shoe”) of the first underwritten public offering of shares of Common Stock registered under the U.S. Securities Act, and/or applicable securities legislation in Canada that occurs after the Warrant Date and, in conjunction with which, such shares of Common Stock are listed for trading on the New York Stock Exchange, the Nasdaq Stock Market and/or the Toronto Stock Exchange.

(k) “IPO Price” means the public offering price per share of Common Stock (before giving effect to any underwriting discounts or commissions) specified in the final prospectus with respect to the IPO.

(l) “Other Warrants” means any warrant issued upon transfer of or in lieu of this Warrant. The term “Warrant” as used herein shall be deemed to include Other Warrants unless the context clearly requires otherwise.

(m) “Permitted Transferee” means any Affiliate of the Holder or any Qualified Institutional Investor.

(n) “Person” means any individual, partnership, limited partnership, corporation, limited liability company, association, joint stock company, trust, joint venture, unincorporated organization, or other entity.

(o) “Preferred Maturity Date” means the second anniversary of the Original Issue Date (as defined in the Stapled Preferred Articles), being the date upon which the Preferred Stock is mandatorily redeemable pursuant to its terms, as such date may be extended from time to time at the option of the Company pursuant to the terms of the Preferred Stock. For avoidance of doubt, for purposes of this Warrant, the term “Preferred Maturity Date” shall refer to such initial or extended scheduled mandatory redemption date, notwithstanding any redemption of the Preferred Stock prior to such date.

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(p) “Preferred Redemption Date” means the earliest of (i) the date on which all of the then outstanding shares of Preferred Stock are redeemed by the Company pursuant to the provisions thereof, (ii) the Preferred Maturity Date, (iii) the date on which an Optional Redemption Notice (as defined in the Stapled Preferred Articles) is delivered to the Company, and (iv) the date on which a Special Redemption Notice (as defined in the Stapled Preferred Articles) is delivered by the Company to holders of the Preferred Stock.

(q) “Preferred Stock” means (i) the Company’s 9.75% Series A Cumulative Non-Convertible Preferred Stock, $.01 par value per share, if the Series of Warrant designation above is “Series A Warrants,” (ii) the Company’s 9.75% Series B Cumulative Non-Convertible Preferred Stock, $.01 par value per share, if the Series of Warrant designation above is “Series B Warrants,” and (iii) the Company’s 9.75% Series C Cumulative Non-Convertible Preferred Stock, $.01 par value per share, if the Series of Warrant designation above is “Series C Warrants.”

(r) “Qualified Company Acquisition” means a Change of Control pursuant to which, assuming for this purpose that the Shares were issued and outstanding immediately prior thereto, the holder of the Shares would be entitled to receive consideration in respect of the Shares solely in the form of cash, equity securities issued by a Person other than the Company and listed for trading on a national securities exchange in the United States, or a combination of the foregoing.

(s) “Qualified Institutional Investor” means (i) a nationally chartered bank that has a combined capital and surplus of at least $100 million, (ii) a pension fund, pension trust or pension account that has total assets of at least $500 million and that is managed by a person or entity that controls/manages at least $1 billion of real estate equity assets, (iii) with the written consent of the Company (not to be unreasonably withheld, conditioned or delayed), a real estate private equity fund or real estate investment trust that has total assets of at least $500 million and that is managed by a person or entity that controls/manages at least $1 billion of real estate equity assets, (iv) a pension fund advisor that controls/manages at least $500 million of real estate equity assets, (v) an insurance company that is subject to supervision by the insurance commissioner, or similar official or agency, of a state or territory of the United States (including the District of Columbia) which has a net worth of at least $250 million and controls real estate equity assets of at least $500 million, or (vi) any corporation, partnership or limited liability company that is majority-owned by one or more of the foregoing entities.

(t) “Series Warrants” means, collectively, this Warrant and all other Transaction Warrants, if any, that, upon original issuance thereof, are attached to shares of Preferred Stock, as the Stapled Preferred Shares.

(u) “Shares” means the shares of Applicable Stock issuable upon exercise of this Warrant.

(v) “Stapled Preferred Articles” means the articles supplementary with respect to the Preferred Stock, as filed on or about August 2, 2012 with the Department of Assessments

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and Taxation of the State of Maryland, as the same may be amended from time to time, and the articles supplementary with respect to the Preferred Stock, as filed on or about February 25, 2013 with the Department of Assessments and Taxation of the State of Maryland, as the same may be amended from time to time.

(w) “Stapled Preferred Shares” means, as of any time of determination, such of the shares of Preferred Stock originally issued, concurrently with the original issuance of this Warrant, to the original holder of this Warrant pursuant to the applicable Purchase Agreement to which this Warrant, as of such time, remains attached in accordance with the provisions of Section 7(b) hereof.

(x) “Stated Expiration Date” means the later of (i) the third anniversary of the Closing Date and (ii) the Preferred Maturity Date; provided, however, that in no event shall the Stated Expiration Date be later than the fifth anniversary of the Original Issue Date (as defined in the Stapled Preferred Articles).

(y) “U.S. Securities Act” means the United States Securities Act of 1933, as amended.

2. Term. Subject to the provisions of this Section 2, the right to purchase Applicable Stock upon exercise hereof is exercisable at any time and from time to time prior to the expiration of this Warrant: (i) following the IPO pursuant to Section 3(b); and (ii) in connection with a Change of Control pursuant to Section 3(c). This Warrant shall immediately expire and cease to be exercisable upon the earliest to occur of: (w) 5:00 p.m. New York local time on the Stated Expiration Date, (x) 5:00 p.m. New York local time on the date that is 60 days after the IPO (or, if such date is not a business day, then on the first business day thereafter), (y) the consummation of a Qualified Company Acquisition (unless this Warrant is exercised concurrently therewith pursuant to Section 3(c)) and (z) the cancellation of this Warrant pursuant to Section 4; provided, however, that in the event that (A) on or before the Stated Expiration Date, a public announcement or filing is made with respect to, or the Company enters into any agreement contemplating, any transaction that constitutes a Change of Control, (B) on or before the Stated Expiration Date, a conditional exercise of this Warrant is initiated pursuant to Section 3(c)(ii) in connection therewith and (C) as of the Stated Expiration Date, (1) such transaction has been neither consummated nor abandoned, (2) such agreement, if any, has not terminated and (3) such conditional exercise remains in effect, then notwithstanding anything in this Warrant to the contrary, the term of this Warrant shall be extended and this Warrant shall remain exercisable, but only with respect to such Change of Control, for so long and to the extent necessary to give full effect to such conditional exercise in accordance with the provisions of Section 3(c)(ii).

3. Payment and Exercise.

(a) Generally.

(i) Methods of Exercise. The purchase right represented by this Warrant may be exercised by the Holder, in whole or in part, at such time or times as provided herein, at the election of the Holder, by (A) the surrender of this Warrant (with the notice of exercise substantially in the form attached hereto as Exhibit A duly completed and executed and

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indicating under which subsection of this Section 3 such purchase right is being exercised) at the principal office of the Company and (B) compliance with the other provisions of the applicable subsection of this Section 3. The purchase right represented by this Warrant is also subject to automatic exercise in connection with a Qualified Company Acquisition, without any action on the part of the Holder, pursuant to the provisions of Section 3(c)(iii).

(ii) Payment of Exercise Price. The aggregate amount payable to the Company upon exercise of the purchase right represented by this Warrant may be paid (x) by wire transfer to an account designated by the Company; (y) in the case of any exercise of this Warrant pursuant to Section 3(c) concurrently with the redemption of the Preferred Stock, by setoff, at the written election of the Holder, of the full redemption price payable by the Company to the Holder with respect to any Stapled Preferred Share (other than the portion of such redemption price in excess of the amount of the Liquidation Preference (as defined in the Stapled Preferred Articles), which portion shall remain payable in cash by the Company in connection with such redemption in accordance with the terms of the Preferred Stock); or (z) by any combination of the foregoing methods.

(iii) Issuance of Shares and Certificates. The Person or Persons in whose name(s) any certificate(s) representing Shares of Applicable Stock shall be issuable upon exercise of this Warrant shall be deemed to have become the holder(s) of record of, and shall be treated for all purposes as the record holder(s) of, the Shares represented thereby (and such Shares shall be deemed to have been issued) immediately prior to the close of business on the date or dates upon which this Warrant is exercised. In the event of any exercise of the rights represented by this Warrant, certificates for the Shares so purchased shall be delivered to the Holder as soon as possible and in any event within ten (10) business days after such exercise; provided, however, that at such time as the Company’s securities may be listed on a securities exchange or a public market may otherwise exist for the Company’s securities, if requested by the Holder, the Company shall (or shall cause its transfer agent to) deliver the certificates representing the Shares issued upon exercise of this Warrant to a broker or other Person (as directed by the Holder exercising this Warrant) within the time period required to settle any trade made by the Holder after exercise of this Warrant; and provided further, however, that, in the event that this Warrant is exercised pursuant to Section 3(c) concurrently with the consummation of a Change of Control, the Company shall (or shall cause its transfer agent to) deliver the certificates representing the Shares issued upon exercise of this Warrant to a paying agent or other Person (as directed by the Holder exercising this Warrant), to the extent delivery of such certificates is necessary, within the time period required in order to permit the Holder to tender or surrender such Shares in exchange for the consideration payable in respect of such Shares in such transaction.

(iv) Limitations on Exercise. The purchase right represented by this Warrant and by all other Series Warrants, if any, collectively (a) may be exercised, in whole or in part, by the holders of Series Warrants representing at least a majority of the shares of the Company’s capital stock underlying all then outstanding Series Warrants (it being understood that the Series Warrants may be exercised with respect to less than a majority of the shares of the Company’s capital stock underlying all then outstanding Series Warrants and there shall be no minimum number of such shares that must be acquired upon the exercise of this Warrant or any other Series Warrants, if any), and (b) may not be exercised on more than one occasion. In the event of any partial exercise of this Warrant, or in the event that any other Series Warrant is

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exercised, in whole or in part, without the substantially concurrent exercise of this Warrant, then this Warrant shall immediately terminate and be of no further force or effect as to the unexercised portion thereof. In no event may this Warrant be exercised for any fractional Share.

(b) Exercise Following IPO. From and after the day after the IPO, the purchase right represented by this Warrant may be exercised pursuant to this Section 3(b) by (A) compliance with the provisions of Section 3(a)(i) hereof and (B) the payment to the Company, in accordance with Section 3(a)(ii) hereof, of an amount equal to the Exercise Price multiplied by the whole number of Shares then being purchased.

(c) Exercise Relating to Change of Control.

(i) From and after the later of (i) the consummation of a Change of Control and (ii) the Preferred Redemption Date, the purchase right represented by this Warrant may be exercised pursuant to this Section 3(c) by (A) (1) compliance with the provisions of Section 3(a)(i) hereof and (2) subject to the provisions of Section 3(c)(ii) hereof with respect to any conditional exercise, the payment to the Company, in accordance with Section 3(a)(ii) hereof, of an amount equal to the Exercise Price multiplied by the whole number of Shares then being purchased; or (B) automatic exercise of this Warrant pursuant to the provisions of Section 3(c)(iii) hereof. The Company shall provide at least twenty (20) days’ advance written notice to the Holder of the consummation of any Change of Control.

(ii) In connection with any contemplated Change of Control not yet consummated, the Holder shall have the right to make the effectiveness of its exercise pursuant to this Section 3(c) contingent upon the consummation of such Change of Control and effective immediately prior thereto, provided that the Preferred Redemption Date shall have occurred on or prior to the consummation of such Change of Control. Any such conditional exercise shall in all other respects be binding and irrevocable. In the event of any conditional exercise pursuant to this Section 3(c)(ii), (A) the Company shall provide at least ten (10) business days’ advance written notice to the Holder of the date of consummation of such Change of Control and (B) the Holder shall not be obligated to tender payment of the amount required by Section 3(c)(i) until immediately prior to the consummation of such Change of Control. If (x) such Change of Control is not consummated within ninety (90) days after delivery by the Holder of its notice of conditional exercise (subject to one or more extensions of at least thirty (30) days each, in the sole discretion of the Holder, by written notice to the Company delivered prior to the expiration of such initial or previously extended period, as the case may be, it being understood that such period may be extended beyond the otherwise applicable expiration of the term of this Warrant to the extent provided in Section 2) or (y) such Change of Control is abandoned or the agreement, if any, contemplating such Change of Control is terminated, then such exercise shall thereupon be null and void, and the Company promptly shall return to the Holder the purchase amount to the extent previously tendered by the Holder.

(iii) In the event of the consummation of a Qualified Company Acquisition, if this Warrant is not exercised, in whole or in part, concurrently therewith at the election of the Holder, then this Warrant shall be automatically exercised pursuant to this Section 3(c)(iii), without any action on the part of the Holder, effective immediately prior to the consummation of such Qualified Company Acquisition, upon the terms and subject to the

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conditions set forth below; provided, however, that the Holder may affirmatively and irrevocably opt out of such automatic exercise by written notice to the Company given not later than three (3) business days prior to the consummation of such Qualified Company Acquisition.

(1) Upon automatic exercise pursuant to this Section 3(c)(iii), this Warrant shall be converted (without payment by the Holder of any exercise price or any cash or other consideration) into that number of shares of fully paid and nonassessable Applicable Stock as is determined according to the following formula:

X	=	Y * (A – B)
		A

Where:	X =	the number of shares of Applicable Stock to be issued to the Holder;
	Y =	the number of shares of Applicable Stock purchasable under this Warrant (at the date of such calculation), being an amount equal to the Warrant Coverage divided by the Floor Price, rounded down to the nearest whole number of shares;
	A =	the fair market value of one share of Applicable Stock (at the date of such calculation); and
	B =	the Floor Price.

No automatic exercise of this Warrant shall occur if the number of shares to be issued determined in accordance with the foregoing formula is not a positive number. No fractional shares shall be issuable upon such conversion, and, if the number of shares to be issued determined in accordance with the foregoing formula is other than a whole number, the Company shall pay to the Holder an amount in cash equal to the fair market value of the resulting fractional share. Such conversion shall be effective immediately prior to the consummation of the Qualified Company Acquisition, irrespective of whether this Warrant shall have been surrendered. The Holder agrees to surrender this Warrant promptly thereafter upon the written request of the Company. For all purposes of this Warrant, shares issued pursuant to such conversion shall be treated as if they were issued upon the exercise of this Warrant.

(2) For purposes of this Section 3(c)(iii), the fair market value of a share of Applicable Stock shall mean the value of the consideration to be received per share of Applicable Stock by holders of the Applicable Stock in such Qualified Company Acquisition, being the sum of (x) the amount of any cash plus (y) the value of any equity securities as determined (I) in accordance with the valuation methodology set forth in the definitive agreement with respect to the Qualified Company Acquisition or (II) in the absence of such methodology or such agreement, based on the closing price for such equity security on the trading day immediately preceding the date of consummation of such Qualified Company Acquisition. Promptly following the Qualified Company Acquisition, the Company shall deliver to the Holder a certificate, executed by an authorized officer of the Company, setting forth in reasonable detail the basis for and method of determination of the per share fair market value of the Applicable Stock.

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4. Cancellation Option upon Certain Change of Control Transactions. In the event of the consummation of a Change of Control (other than a Qualified Company Acquisition), if this Warrant is not exercised, in whole or in part, concurrently therewith at the election of the Holder, then the Company shall have the right and option (but not the obligation) to cancel this Warrant, effective upon the consummation of such Change of Control, in exchange for the cash consideration, if any, and upon the other terms and subject to the conditions set forth below. If the Company does not exercise its rights under this Section 4, then the Holder shall have the right and option (but not the obligation) to compel the Company to cancel this Warrant, effective upon the consummation of such Change of Control, in exchange for the cash consideration, if any, and upon the other terms and subject to the conditions set forth below.

(a) Notice of Cancellation. The Company will notify the Holder of its election whether or not to cancel this Warrant in accordance with this Section 4 by written notice to the Holder (the “Company Election Notice”) given not later than five (5) business days prior to the consummation of such Change of Control and not earlier than ten (10) business days prior to such consummation; provided, however, that the Company shall not be permitted to exercise its cancellation option, and shall not be required to deliver the Company Election Notice, to the extent that, prior to delivery of such notice, the Holder shall have initiated a conditional exercise of this Warrant in connection with such Change of Control pursuant to Section 3(c)(ii); and provided further, however, that, if the Company Election Notice indicates that the Company intends to exercise its cancellation rights, the Holder nevertheless shall remain entitled to conditionally exercise this Warrant in connection with such Change of Control pursuant to Section 3(c)(ii) if such exercise is initiated not later than two (2) business days prior to the consummation of such Change of Control, in which event the Company Election Notice shall thereupon be null and void. If the Company Election Notice indicates that the Company does not intend to exercise its cancellation rights, then the Holder may, by written notice to the Company (the “Holder Election Notice”), given not later than two (2) business days prior to the consummation of the Change of Control, direct the Company to cancel this Warrant pursuant to the provisions of this Section 4. Any cancellation of this Warrant pursuant to this Section 4 shall be deemed to be contingent and effective only upon the consummation of the Change of Control, and shall in all other respects be binding and irrevocable. From and after the delivery of a Holder Election Notice by the Holder or, subject to the second proviso of the first sentence of this Section 4(a), from and after the delivery of a Company Election Notice by the Company indicating the Company’s intention to exercise its cancellation rights, and throughout and including the consummation of such Change of Control, the Holder shall not be permitted to exercise this Warrant in connection with such Change of Control. If such Change of Control is abandoned or the agreement, if any, contemplating such Change of Control is terminated, any elections made by the Company or the Holder shall thereupon be null and void.

(b) Consideration. In exchange for the cancellation of this Warrant, the Company shall pay, or cause to be paid, upon the consummation of such Change of Control, an amount in cash (the “Cancellation Price”) equal to the excess, if any, of (i) the aggregate fair market value of the shares of Applicable Stock purchasable under this Warrant (being a number of shares equal to the Warrant Coverage divided by the Floor Price, rounded down to the nearest whole number of Shares) over (ii) the Warrant Coverage. The Cancellation Price shall be paid by wire transfer of immediately available funds to an account designated in writing by the Holder; provided, however, that, if the Holder fails to timely deliver in writing to the Company valid wire

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transfer instructions and such other information, if any, as may be reasonably necessary for the Company to pay the Cancellation Price to the Holder, then in the event that (A) on the date of consummation of such Change of Control the Company has set aside in trust the full amount of the Cancellation Price for the benefit of the Holder and (B) irrevocable instructions have been given by the Company to the trustee of such trust to pay in full the Cancellation Price to the Holder, then the Company shall be deemed to have satisfied its obligations to pay the Cancellation Price in accordance with this Section 4(b). The Cancellation Price shall be subject to adjustment after the consummation of such Change of Control as provided in Section 4(d).

(c) Fair Market Value. For purposes of this Section 4, the fair market value of a share of Applicable Stock shall mean the value per share attributable to the Applicable Stock in such Change of Control. Such fair market value shall be determined in good faith by the Company’s Board of Directors, subject to adjustment after the consummation of such Change of Control as provided in Section 4(d). To the extent reasonably practicable, the Company shall afford the Holder a reasonable opportunity prior to the consummation of such Change of Control to consult with the Company in connection with the determination of such fair market value.

(d) Post-Closing Adjustment to Cancellation Price.

(i) Regardless of whether or not the Company elects to exercise the cancellation right under this Section 4, the Company Election Notice delivered to the Holder pursuant to Section 4(a) shall contain a statement, executed by an authorized officer of the Company, setting forth in reasonable detail the basis for and method of determination of the per share fair market value of the Applicable Stock as of the consummation of the Change of Control and the resulting calculation of the Cancellation Price; provided, however, that, if, at the time of delivery of the Company Election Notice, the per share fair market value of the Applicable Stock as of the consummation of the Change of Control is not then fixed or determinable under the terms applicable to the Change of Control, then (A) such statement contained in the Company Election Notice shall reflect the good faith estimate of such amounts by the Company’s Board of Directors and (B) promptly following the consummation of the Change of Control, the Company shall deliver to the Holder an updated statement consistent with the Cancellation Price actually paid or payable upon such consummation (such updated statement, or such initial statement if no updated statement is required to be delivered hereunder, being the “Cancellation Price Statement”). In the event that the Holder objects to the determination set forth in the Cancellation Price Statement, then within ninety (90) days after the later of the consummation of the Change of Control and delivery of the Cancellation Price Statement (the “Response Period”), the Holder shall deliver to the Company a written notice (an “Objection Notice”) describing in reasonable detail the Holder’s objections and setting forth the Holder’s determination of the per share fair market value of the Applicable Stock and the resulting calculation of the Cancellation Price. During the Response Period, the Company shall provide the Holder and its agents and representative with reasonable access to the books and records of the Company and to the management of the Company, together with support for the determination of the valuation contained in the Cancellation Price Statement. If the Holder does not deliver an Objection Notice to the Company during the Response Period, or if the Holder sends express written notice to the Company prior to the end of the Response Period that it accepts the Cancellation Price Statement (an “Acceptance Notice”), then the Company’s determination of the per share fair market value of the Applicable Stock and the resulting calculation of the Cancellation Price shall be binding and conclusive on the parties, and no

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adjustment to the Cancellation Price shall be made. For avoidance of doubt, the Holder’s receipt and acceptance of the cash consideration paid pursuant to Section 4(b) shall not be deemed a waiver by the Holder of its right to deliver an Objection Notice or an acceptance of the Cancellation Price Statement.

(ii) In the event the Holder delivers to the Company an Objection Notice within the Response Period, the Company and the Holder shall in good faith negotiate to settle the disputed valuation. If no resolution is reached within ten (10) days after delivery of the Objection Notice to the Company, then either party may elect by written notice to the other to submit the disputed valuation to an independent appraiser jointly selected by the Company and the Holder (or, if the parties are unable to agree upon a single appraiser within ten (10) days of such election, then each party promptly shall select an appraiser and those two appraisers promptly shall select an independent third appraiser) (such jointly selected appraiser, or such third appraiser, as the case may be, the “Appraiser”). The valuations contained in the Cancellation Price Statement and the Objection Notice shall be the minimum and maximum valuations, respectively and the Appraiser shall be limited to selecting any valuation between and including those amounts, and shall have no authority to determine any other valuation. The Company and the Holder promptly shall provide such information as the Appraiser may reasonably request in connection with its determination. As promptly as practicable after the engagement of the Appraiser, the Company and the Holder may each prepare and submit a presentation to the Appraiser. Each of the Company and the Holder shall use its commercially reasonable efforts to cooperate with the Appraiser and to cause the Appraiser to render its determination within thirty (30) days of its engagement. The Appraiser shall act as an expert and all determinations made by the Appraiser of the valuation (and the resulting calculation of the Cancellation Price) shall, in the absence of manifest error, be final, binding and conclusive on the parties. In the event that the dispute is resolved by a final determination by the Appraiser, the costs and expenses associated with the Appraiser shall be borne by the Holder, if the difference between the Appraiser’s determination of fair market value and the Holder’s determination of fair market value is greater than the difference between the Appraiser’s determination of fair market value and the determination of fair market value contained in the Cancellation Price Statement, and by the Company if the first such difference is less than the second such difference. Otherwise, the Company and the Holder shall each pay fifty percent (50%) of such fees and expenses. The parties agree that the procedure set forth in this Section 4(d) for resolving disputes shall be the sole and exclusive method for resolving any such disputes regarding calculation of the Cancellation Price; provided that this provision shall not prohibit either party from instituting litigation to enforce any ruling of the Appraiser.

(iii) Promptly, and in any event within five (5) business days, after final determination of the Cancellation Price in accordance with Section 4(d)(ii), if such finally determined Cancellation Price exceeds the amount paid as of the consummation of the Change of Control pursuant to Section 4(b), then the Company shall pay such excess amount in cash in the same manner as set forth in Section 4(b). All amounts determined to be payable under this Section 4(d)(iii) shall be deemed to have accrued interest at a rate of 5%, compounded annually, from the date of the consummation of the Change of Control to and including the date such amounts are fully paid in the manner set forth in Section 4(b), together with all accrued interest thereon.

(iv) The Company shall cause any acquirer or surviving entity resulting from the Change of Control to be bound by the Company’s obligations provided pursuant to this Section 4 following the consummation of the Change of Control.

(e) Effect of Cancellation. Any cancellation of this Warrant pursuant to this Section 4 shall be effective upon the consummation of such Change of Control and the payment of the Cancellation Price in accordance with Section 4(b), irrespective of whether this Warrant shall have been surrendered and notwithstanding any subsequent adjustment of the Cancellation Price. The Holder agrees to surrender this Warrant promptly following the consummation of such Change of Control upon the written request of the Company.

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5. Stock Fully Paid; Reservation of Shares. All Shares that may be issued upon the exercise of the rights represented by this Warrant will, upon issuance pursuant to the terms and conditions herein, be fully paid and nonassessable, and free from all preemptive rights and taxes, liens and charges with respect to the issuance thereof. During the period within which the rights represented by this Warrant may be exercised, the Company will at all times have authorized, and reserved for the purpose of the issue upon exercise of the purchase rights evidenced by this Warrant, a sufficient number of shares of its Applicable Stock to provide for the exercise of the rights represented by this Warrant.

6. Adjustment of Shares and Exercise Price. The number and kind of securities purchasable upon the exercise of this Warrant and the Exercise Price shall be subject to adjustment from time to time upon the occurrence of certain events, as follows:

(a) Reclassification or Merger. In case of any reclassification or change of securities of the class issuable upon exercise of this Warrant (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination), or in case of any merger of the Company with or into another entity (other than a merger with another entity in which the Company is the acquiring and the surviving entity and which does not result in any reclassification or change of outstanding securities issuable upon exercise of this Warrant), or in case of any sale of all or substantially all of the assets of the Company, the Company, or such successor or purchasing entity, as the case may be, shall duly execute and deliver to the Holder a new Warrant (in form and substance satisfactory to the Holder), or the Company shall make appropriate provision without the issuance of a new Warrant, so that the Holder shall have the right to receive upon exercise of this Warrant, at a total purchase price not to exceed that payable upon the exercise of this Warrant, and in lieu of the shares of Applicable Stock theretofore issuable upon exercise of this Warrant, the kind and amount of shares of stock, other securities, money and property receivable upon such reclassification, change, merger or sale by a holder of the number of shares of Applicable Stock then purchasable under this Warrant. The provisions of this Section 6(a) shall similarly apply to successive reclassifications, changes, mergers and sales.

(b) Subdivision or Combination of Shares. If the Company at any time while this Warrant remains outstanding and unexpired shall subdivide or combine its outstanding shares of Applicable Stock, the Floor Price shall be proportionately decreased in the case of a subdivision and the Floor Price shall be proportionately increased in the case of a combination.

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(c) Stock Dividends. If the Company at any time while this Warrant is outstanding and unexpired shall pay a dividend with respect to Applicable Stock payable in Applicable Stock, then the Floor Price shall be adjusted, from and after the date of determination of shareholders entitled to receive such dividend or distribution, to that price determined by multiplying the Floor Price in effect immediately prior to such date of determination by a fraction (A) the numerator of which shall be the total number of shares of Applicable Stock outstanding immediately prior to such dividend or distribution, and (B) the denominator of which shall be the total number of shares of Applicable Stock outstanding immediately after such dividend or distribution.

(d) Notice of Adjustments. Whenever the number or kind of securities purchasable upon the exercise of this Warrant or the Floor Price shall be adjusted pursuant to this Section 6 hereof, the Company shall make a certificate signed by its chief financial officer setting forth, in reasonable detail, the event requiring the adjustment, the amount of the adjustment, the method by which such adjustment was calculated, and the Floor Price and the number of Shares purchasable hereunder after giving effect to such adjustment, and shall cause copies of such certificate to be delivered to the Holder.

7. Compliance with U.S. Securities Act; Transfers.

(a) Compliance with U.S. Securities Act. The Holder, by acceptance hereof, hereby represents and warrants that: (i) the Holder is acquiring this Warrant and the underlying shares of Applicable Stock for investment for its own account, and not with a view to, or for sale in connection with, any distribution thereof; (ii) the Holder is an “accredited investor” as defined in Rule 501(a) of Regulation D under the U.S. Securities Act and not a registered broker-dealer under Section 15 of the U.S. Securities Exchange Act of 1934, as amended; (iii) the Holder understands and acknowledges that neither this Warrant nor the underlying shares of Applicable Stock has been registered under the U.S. Securities Act or the securities laws of any state or foreign jurisdiction and, unless so registered, may not be offered, sold, transferred, or otherwise disposed of except pursuant to an exemption from, or in a transaction not subject to, the registration requirements thereof; (iv) the Holder, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in this Warrant and the underlying shares of Applicable Stock, and has so evaluated the merits and risks of such investment; and (v) the Holder is able to bear the economic risk of such investment and, at the present time, is able to afford a complete loss of such investment. Upon any exercise of this Warrant, the Holder shall confirm in writing as of such date each of the foregoing representations and warranties in respect of the shares of Applicable Stock then being acquired. This Warrant and all shares of Applicable Stock issued upon exercise of this Warrant (unless registered under the U.S. Securities Act and any applicable state securities laws) shall be stamped or imprinted with a legend in substantially the following form:

“THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED FOR SALE OR SOLD, ASSIGNED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION, EXCEPT PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT, UNLESS SUCH OFFER, SALE, ASSIGNMENT OR OTHER TRANSFER MAY BE EFFECTED WITHOUT SUCH REGISTRATION.”

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Said legend shall be removed by the Company, upon the request of the Holder, at such time as the restrictions on the transfer of the applicable security shall have terminated.

(b) Transfers. Except as provided below, this Warrant (and the right to purchase Shares represented hereby) is not detachable from the Stapled Preferred Shares and may only be transferred together with the Stapled Preferred Shares, and the Stapled Preferred Shares may only be transferred together with this Warrant, as more particularly described herein. Accordingly, subject in all events to compliance with any and all provisions applicable to the transfer of the Stapled Preferred Shares and this Warrant under applicable federal and state securities laws or as set forth in the applicable Purchase Agreement, the charter or by-laws of the Company, or any other contract or agreement between the Company and the Holder, in each case, as in effect from time to time (subject to any and all waivers thereof or exemptions thereunder granted to date or hereafter granted by the Company in writing), this Warrant may only be transferred, and shall be transferred, in conjunction and proportionally with any transfer of Stapled Preferred Shares to the transferee or transferees thereof. Following the redemption of all Stapled Preferred Shares, subject to compliance with the provisions on transfer (other than non-detachability) recited above, this Warrant may be transferred, in whole or in part, to a Permitted Transferee, provided that, following any such transfer, this Warrant together with all other Series Warrants, if any, are held by a single Person or by an Affiliated Group. For avoidance of doubt, prior to the redemption of all Stapled Preferred Shares, the preceding sentence (including, without limitation, any consent or other requirements contained within the definition of “Qualified Institutional Investor” set forth herein) shall not apply to any transfer of this Warrant. Subject to the foregoing, this Warrant is transferable on the books of the Company at its principal office by the Holder upon surrender of this Warrant properly endorsed. The Company shall issue and deliver to the transferee a new Warrant representing the Warrant so transferred. Upon any partial transfer, the Company will issue and deliver to the Holder a new Warrant with respect to the portion of the Warrant not so transferred. Any purported transfer of this Warrant in violation of this Section 7 shall be null and void ab initio.

8. Rights as Shareholders; Information. No Holder, as a holder of this Warrant, shall be entitled to vote or receive dividends or be deemed the holder of Applicable Stock or any other securities of the Company which may at any time be issuable upon the exercise hereof for any purpose, nor shall anything contained herein be construed to confer upon the Holder, as such, any of the rights of a shareholder of the Company or any right to vote for the election of directors or upon any matter submitted to shareholders at any meeting thereof, or to receive dividends or subscription rights or otherwise until this Warrant shall have been exercised and the Shares purchasable upon the exercise hereof shall have become deliverable, as provided herein.

9. Representations and Warranties. The Company represents and warrants to the Holder as follows, as of the Warrant Date and as of the date of any purchase of Shares hereunder:

(a) This Warrant has been duly authorized and executed by the Company and constitutes valid and legally binding obligations of the Company, enforceable in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium,

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and other laws of general application affecting enforcement of creditors’ rights generally, and (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies.

(b) The Shares have been duly authorized and reserved for issuance by the Company and, when issued in accordance with the terms hereof, will be validly issued, fully paid and nonassessable and free from all preemptive rights and taxes, liens and charges with respect to the issuance thereof.

(c) Assuming the accuracy of the representations and warranties of the Holder set forth herein, the issuance of the Applicable Stock upon exercise of this Warrant will be exempt from the registration requirements of the U.S. Securities Act and will have been registered or qualified (or is exempt from registration and qualification) under the registration or qualification requirements of all applicable state securities laws.

10. Miscellaneous.

(a) Notices. Any notice, demand, request, instruction, correspondence, or other document required or permitted to be given hereunder shall be in writing and delivered (i) in person, (ii) by a nationally recognized overnight courier service requiring acknowledgment of receipt of delivery, (iii) by United States or Canadian certified mail, postage prepaid and return receipt requested, or (iv) by facsimile. All communications shall be sent to the Holder at its address as shown on the books of the Company or to the Company at the address indicated therefor on the signature page of this Warrant (or at such other addresses as shall be specified by notice given in accordance with this Section 10(a)). Notice shall be deemed given, received, and effective on: (i) if given by personal delivery or courier service, the date of actual receipt by the receiving party, or if delivery is refused on the date delivery was first attempted; (ii) if given by certified mail, the third day after being so mailed if posted with the United States Postal Service or the Canadian Postal Service; and (iii) if given by facsimile, the date on which the facsimile is transmitted if confirmed by transmission report during the transmitter’s normal business hours, or at the beginning of the next business day after transmission if confirmed at any time other than the transmitter’s normal business hours. At such time or times as the Series Warrants are held by an Affiliated Group, notice given to the holders of Series Warrants representing at least a majority of the shares of the Company’s capital stock underlying all then outstanding Series Warrants shall be deemed concurrently given to each other holder of the Series Warrants.

(b) Business Days. Unless the context otherwise requires, references in this Warrant to business days shall mean each day, other than a Saturday or a Sunday, that is not a day on which banking institutions in New York are authorized or required by law, regulation or executive order to close, and references in this Warrant to the close of business shall relate to normal business hours of the Company.

(c) Currency. Any payment in cash by the Holder to the Company in connection with any exercise of this Warrant, and any payment hereunder by the Company to the Holder, shall be made only in United States dollars. All references herein to “$” or “dollar” shall mean United States dollars.

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(d) Binding Effect on Successors. This Warrant shall be binding upon any entity succeeding the Company by merger, consolidation or acquisition of all or substantially all of the Company’s assets, and all of the obligations of the Company relating to the Applicable Stock issuable upon the exercise or conversion of this Warrant shall survive the exercise, conversion and termination or expiration of this Warrant.

(e) Lost Warrants or Share Certificates. The Company covenants to the Holder that, upon receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant or any certificate evidencing any Shares acquired upon exercise hereof and, in the case of any such loss, theft or destruction, upon receipt of an indemnity reasonably satisfactory to the Company, or in the case of any such mutilation upon surrender and cancellation of such Warrant or certificate, the Company will make and deliver a new Warrant or certificate, of like tenor, in lieu of the lost, stolen, destroyed or mutilated Warrant or certificate.

(f) Charges, Taxes and Expenses. Issuance of certificates for Shares of Applicable Stock upon any exercise of this Warrant shall be made without charge to the Holder for any documentary stamp tax or other incidental expense relating to the issuance of such certificates, all of which taxes and expenses shall be paid by the Company; provided, however, that the Company shall not be required to pay any tax in respect of any transfer involved in the issuance of such certificates in a name other than that of the then current Holder.

(g) Governing Law. This Warrant shall be enforced, governed, and construed in all respects in accordance with the laws of the State of New York applicable to contracts executed and performable solely in such state.

(h) Survival of Representations, Warranties and Agreements. All representations and warranties of the Company and the Holder contained herein shall survive the Warrant Date, the exercise or conversion of this Warrant (or any part hereof) or the termination or expiration of rights hereunder. All agreements of the Company and the Holder contained herein shall survive indefinitely until, by their respective terms, they are no longer operative.

(i) Remedies. In case any one or more of the covenants and agreements contained in this Warrant shall have been breached, the Holder (in the case of a breach by the Company), or the Company (in the case of a breach by the Holder), may proceed to protect and enforce their or its rights either by suit in equity and/or by action at law, including, but not limited to, an action for damages as a result of any such breach and/or an action for specific performance of any such covenant or agreement contained in this Warrant.

(j) Severability. If one or more provisions of this Warrant are held to be unenforceable under or in conflict with applicable laws or regulations of any jurisdiction, such provision shall be excluded from this Warrant and the balance of this Warrant shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms.

(k) Entire Agreement. This Warrant, together with the applicable Purchase Agreement, constitutes the entire agreement between the parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations, and undertakings of the parties, whether oral or written, with respect to such subject matter.

[Remainder of page intentionally left blank.]

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The Company has caused this Warrant to be duly executed and delivered as of the Warrant Date specified above.

LANDMARK APARTMENT TRUST OF AMERICA, INC.
By:	/s/ Stanley J. Olander
Name:	Stanley J. Olander
Title:	Chief Executive Officer
Address:

SIGNATURE PAGE TO NON-DETACHABLE WARRANT TO PURCHASE SHARES OF COMMON STOCK

EXHIBIT A

NOTICE OF EXERCISE

To: Landmark Apartment Trust of America, Inc. (the “Company”)

1. The undersigned hereby:

¨ elects to purchase                  Shares of Applicable Stock of the Company pursuant to Section 3(b) (Exercise Following IPO) of the attached Warrant, and tenders herewith payment of the purchase price of such shares in full by payment of $             in cash;

¨ elects to purchase                  Shares of Applicable Stock of the Company pursuant to Section 3(c) (Exercise Relating to Change of Control) of the attached Warrant, and tenders herewith payment of the purchase price of such shares in full by payment of $             in cash and/or by setoff of              Stapled Preferred Shares being concurrently redeemed; or

¨ elects to purchase                  Shares of Applicable Stock of the Company pursuant to Section 3(c) (Exercise Relating to Change of Control) of the attached Warrant, such election to be conditional as provided in Section 3(c)(ii) thereof, and agrees to tender payment of the purchase price of such shares in full when due by payment of $             in cash and/or by setoff of              Stapled Preferred Shares being concurrently redeemed.

2. Please issue a certificate or certificates representing the Shares issuable pursuant to the foregoing exercise in the name of the undersigned or in such other name or names as are specified below:

(Name)

(Address)

3. The undersigned hereby represents and warrants that the representations and warranties set forth in Section 7(a) are true and correct with respect to the undersigned relating to the Shares being acquired hereby on and as of the date hereof, as though made on such date.

By:

Name:

Title:

(Date)

EX-4.2

Exhibit 4.2

REGISTRATION RIGHTS AGREEMENT

This Registration Rights Agreement (this “Agreement”), is made and entered into as of February 27, 2013, by and between LANDMARK APARTMENT TRUST OF AMERICA, INC., a Maryland corporation (the “Company”), and 2335887 LIMITED PARTNERSHIP, an Ontario limited partnership (the “Investor”).

WHEREAS, the Company and the Investor are parties to a Securities Purchase Agreement of even date herewith (the “Purchase Agreement”), pursuant to which the Investor has acquired shares of the Company’s Series A Cumulative Non-Convertible Preferred Stock, par value $0.01 per share, together with non-detachable warrants to purchase shares of Common Stock (as defined below) (such warrants originally issued pursuant to the Purchase Agreement as set forth below, the “Warrants”).

WHEREAS, in connection with the consummation of the transactions contemplated by the Purchase Agreement, and pursuant to the terms of the Purchase Agreement, the parties desire to enter into this Agreement in order to grant certain registration rights to the Investor as set forth below.

NOW, THEREFORE, in consideration of the foregoing and the mutual and dependent covenants hereinafter set forth, the parties agree as follows:

1. Defined Terms. As used in this Agreement, the following terms shall have the following meanings:

“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

“Agreement” has the meaning set forth in the preamble.

“Board” means the board of directors of the Company (and any successor governing body of the Company or any successor of the Company).

“Business Day” means each day, other than a Saturday or a Sunday, that is not a day on which banking institutions in New York are authorized or required by law, regulation or executive order to close.

“Commission” means the Securities and Exchange Commission or any other federal agency administering the Securities Act and the Exchange Act at the time.

“Common Stock” means the common stock, par value $0.01 per share, of the Company and any other common equity securities issued by the Company, and any other shares of stock issued or issuable with respect thereto (whether by way of a stock dividend or stock split or in exchange for or upon conversion of such shares or otherwise in connection with a combination of shares, distribution, recapitalization, merger, consolidation or other corporate reorganization).

“Company” has the meaning set forth in the preamble and includes the Company’s successors by merger, acquisition, reorganization or otherwise.

“Demand Registration” has the meaning set forth in Section 2(b).

“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor federal statute, and the rules and regulations thereunder, which shall be in effect from time to time.

“Governmental Authority” means any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of law), or any arbitrator, court or tribunal of competent jurisdiction.

“Investor” has the meaning set forth in the preamble.

“IPO” shall mean the consummation of the initial closing (without regard for any closing of any associated “green shoe”) of the first underwritten public offering of shares of Common Stock registered under the Securities Act and/or applicable securities legislation in Canada that occurs after the date hereof and, in conjunction with which, such shares of Common Stock are listed for trading on the New York Stock Exchange, the Nasdaq Stock Market and/or the Toronto Stock Exchange.

“Long Form Registration” has the meaning set forth in Section 2(a).

“Operating Partnership” means Landmark Apartment Trust of America Holdings, L.P., a Virginia limited partnership, and includes its successors by merger, acquisition, reorganization or otherwise.

“OPU” means a limited partnership interest in the Operating Partnership.

“Parity Securities” has the meaning set forth in Section 10.

“Person” means an individual, corporation, partnership, joint venture, limited liability company, Governmental Authority, unincorporated organization, trust, association or other entity.

“Piggyback Registration” has the meaning set forth in Section 3(a).

“Prospectus” means the prospectus or prospectuses included in any Registration Statement, as amended or supplemented by any prospectus supplement with respect to the terms of the offering of any portion of the Registrable Securities covered by such Registration Statement and by all other amendments and supplements to the prospectus, including post-effective amendments and all material incorporated by reference in such prospectus or prospectuses.

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“Purchase Agreement” has the meaning set forth in the recitals.

“Registrable Securities” means (a) any shares of Common Stock issued to the Investor upon exercise of any Warrants owned by the Investor at any time, and (b) any shares of Common Stock issued or issuable with respect to any shares described in subsection (a) above by way of a stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization. As to any particular Registrable Securities, such securities shall cease to be Registrable Securities when (i) a Registration Statement covering such securities has been declared effective by the Commission and such securities have been disposed of pursuant to such effective Registration Statement, (ii) such securities are sold under circumstances in which all of the applicable conditions of Rule 144 (or any similar provision then in force) under the Securities Act are met, or (iii) such securities shall have ceased to be outstanding. In addition, as to the Registrable Securities held collectively by the Investor and its Affiliates, such securities shall cease to be Registrable Securities at such time following the second anniversary of the IPO that all such securities may be sold in a single transaction pursuant to Rule 144 and such securities represent less than one percent (1%) of the then outstanding shares of Common Stock.

“Registration Statement” means any registration statement of the Company which covers any of the Registrable Securities pursuant to the provisions of this Agreement, including the Prospectus, amendments and supplements to such Registration Statement, including post-effective amendments, all exhibits and all materials incorporated by reference in such Registration Statement.

“Rule 144” means Rule 144 promulgated under the Securities Act or any successor rule thereto or any complementary rule thereto.

“Securities Act” means the Securities Act of 1933, as amended, or any successor federal statute, and the rules and regulations thereunder, which shall be in effect from time to time.

“Selling Expenses” means all underwriting discounts, selling commissions and stock transfer taxes applicable to the sale of Registrable Securities, and fees and disbursements of counsel for any holder of Registrable Securities, except for the reasonable fees and disbursements of counsel for the holders of Registrable Securities required to be paid by the Company pursuant to Section 6.

“Short-Form Registration” has the meaning set forth in Section 2(b).

“Warrants” has the meaning set forth in the Recitals.

2. Demand Registration.

(a) At any time after the six (6) month anniversary of an IPO, the holders of a majority of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion of their Registrable Securities on

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Form S-11 or any successor form thereto (“Long-Form Registration”); provided that the anticipated aggregate price to the public of the Registrable Securities for which registration is requested must be at least $10 million. Each request for a Long-Form Registration shall specify the approximate number of Registrable Securities required to be registered. Upon receipt of such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have ten (10) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall use reasonable best efforts to file, as soon as practicable, a Registration Statement on Form S-11 (or any successor form) and to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. The Company shall not be required to effect a Long-Form Registration more than one (1) time for the holders of Registrable Securities as a group; provided, that a Registration Statement shall not count as a Long-Form Registration requested under this Section 2(a) unless and until it has become effective, and remains effective for the period required by this Agreement, and the holders requesting such Registration Statement are able to register at least 75% of the Registrable Securities requested to be included in such Registration Statement; and, provided, further, that the Company shall not be required to effect a Long-Form Registration if the Company is, at the time the request for registration is made or within thirty (30) days thereafter, eligible to effect a Short-Form Registration, as provided in Section 2(b).

(b) After an IPO, the Company shall use its reasonable best efforts to qualify and remain qualified to register securities under the Securities Act pursuant to a Registration Statement on Form S-3 or any successor form thereto. At such time as the Company shall have qualified for the use of a Registration Statement on Form S-3, at any time after the six (6) month anniversary of an IPO, the holders of Registrable Securities shall have the right, in addition to the rights contained in Section 2(a), to request an unlimited number of registrations of their Registrable Securities on Form S-3 or any similar short-form registration (each a “Short-Form Registration” and, together with the Long-Form Registration, a “Demand Registration”); provided, however, that the Company shall not be obligated to effect any such Short-Form Registration (i) if the holders of Registrable Securities propose to sell Registrable Securities on Form S-3 at an anticipated aggregate price to the public of less than $1,000,000; or (ii) if the Company has effected two Short-Form Registrations within the twelve (12) month period immediately preceding the date of such request. Each request for a Short-Form Registration shall specify the approximate number of Registrable Securities requested to be registered. Upon receipt of any such request, the Company shall promptly (but in no event later than five (5) days following receipt thereof) deliver notice of such request to all other holders of Registrable Securities who shall then have ten (10) days from the date such notice is given to notify the Company in writing of their desire to be included in such registration. The Company shall cause a Registration Statement on Form S-3 (or any successor form) to be filed within thirty (30) days after the date on which the initial request is given and shall use its

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reasonable best efforts to cause such Registration Statement to be declared effective by the Commission as soon as practicable thereafter. With respect to any Short-Form Registration, the holders of a majority of the Registrable Securities may request the Company to effect a registration of the Registrable Securities under a Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 under the Securities Act or any successor rule thereto (a “Shelf Registration”).

(c)  (i) The Company shall not be obligated to effect any Demand Registration during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending 180 days after, the effective date of a previous Demand Registration or a previous Piggyback Registration in which holders of Registrable Securities were permitted to register shares of Registrable Securities.

(ii) The Company may postpone for up to sixty (60) days the filing or effectiveness of a Registration Statement for a Demand Registration if (i) the Company’s Board determines in its reasonable good faith judgment that such Demand Registration would be materially detrimental to the Company and the Board concludes, as a result, that it is essential to defer the filing or effectiveness of such Registration Statement at such time and (ii) the Company furnishes to the holders of Registrable Securities requesting the registration a certificate signed by the Chief Executive Officer of the Company and confirming such determination of the Board. The Company shall not delay a Demand Registration hereunder more than twice in any period of twelve consecutive months or less than sixty (60) days after the termination of the prior delay period.

(iii) At any time prior to the effective date of a Registration Statement, for a Demand Registration, the holders of a majority of the Registrable Securities included therein may withdraw such request by providing written notice of such withdrawal to the Company. A request, so withdrawn by the holders, shall count as one of the Demand Registrations permitted pursuant to Section 2(a) or Section 2(b), as applicable, unless (i) such withdrawal arose out of the fault of the Company (in which case the Company shall be obligated to pay all registration expenses in connection with such withdrawn request), (ii) there occurs an event or series of related events that has a material adverse effect on the business, assets, condition (financial or otherwise) or results of operations of the Company from that known to the requesting holders at the time of their request or (iii) the requesting holders reimburse the Company for all registration expenses of such withdrawn request incurred through the date of such withdrawal.

(d) If the holders of the Registrable Securities initially requesting a Demand Registration elect to distribute the Registrable Securities covered by their request in an underwritten offering, they shall so advise the Company as a part of their request made pursuant to Section 2(a) or Section 2(b), and the Company shall

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include such information in its notice to the other holders of Registrable Securities. The Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering.

(e) The Company shall not include in any Demand Registration any securities that are not Registrable Securities (other than Parity Securities), including any securities to be sold for the account of the Company, without the prior written consent of the holders of a majority of the Registrable Securities requesting such registration, which consent shall not be unreasonably withheld or delayed. If a Demand Registration involves an underwritten offering and the managing underwriter of the requested Demand Registration advises the Company and the holders of Registrable Securities in writing that in its opinion the number of shares of Common Stock proposed to be included in the Demand Registration, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock that can be sold in such underwritten offering and/or the number of shares of Common Stock proposed to be included in such registration would adversely affect the price per share of the Registrable Securities proposed to be sold in such underwritten offering, the Company shall include in such Demand Registration (i) first, the number of shares of Common Stock that the holders of Registrable Securities and Parity Securities propose to sell, and (ii) second, the number of shares of Common Stock proposed to be included therein by any other Persons (including shares of Common Stock to be sold for the account of the Company and/or other holders of Common Stock other than holders of Parity Securities) allocated among such Persons in such manner as they may agree. If the managing underwriter determines that less than all of the Registrable Securities and Parity Securities proposed to be sold can be included in such offering, then the Registrable Securities and Parity Securities that are included in such offering shall be allocated pro rata among the respective holders thereof on the basis of the number of Registrable Securities and Parity Securities owned by each such holder.

3. Piggyback Registration.

(a) Whenever the Company proposes to register any shares of its Common Stock under the Securities Act (other than a registration related to an employee benefit plan, a registration related to a corporation reorganization or other transaction on Form S-4 or any successor form, or a registration form that does not permit registering the Registrable Securities for sale to the public), whether for its own account or for the account of one or more stockholders of the Company and the form of Registration Statement to be used may be used for registration of any Registrable Securities (a “Piggyback Registration”), the Company shall give prompt written notice (in any event no later than twenty (20) days prior to the filing of such Registration Statement) to the holders of Registrable Securities of its intention to effect such a registration and, subject to Section 3(b) and Section 3(c), shall include in such registration all Registrable Securities with respect to which the Company has received written requests for inclusion from the holders

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of Registrable Securities within ten (10) days after the Company’s notice has been given to each such holder. The Company may postpone or withdraw the filing or the effectiveness of a Piggyback Registration at any time in its sole discretion, and the expenses of such withdrawn registration shall be borne by the Company in accordance with Section 6 hereof. A Piggyback Registration shall not be considered a Demand Registration for purposes of Section 2 of this Agreement.

(b) If a Piggyback Registration is initiated as a primary underwritten offering on behalf of the Company and the managing underwriter advises the Company and the holders of Registrable Securities (if any holders of Registrable Securities have elected to include Registrable Securities in such Piggyback Registration) in writing that in its opinion the number of shares of Common Stock proposed to be included in such registration, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock which can be sold in such offering and/or that the number of shares of Common Stock proposed to be included in any such registration would adversely affect the price per share of the Common Stock to be sold in such offering, the Company shall include in such registration (i) first, the number of shares of Common Stock that the Company proposes to sell; (ii) second, the number of shares of Common Stock requested to be included therein by holders of Registrable Securities and Parity Securities, allocated pro rata among all such holders on the basis of the number of Registrable Securities and Parity Securities owned by each such holder or in such manner as they may otherwise agree; and (iii) third, the number of shares of Common Stock requested to be included therein by holders of Common Stock (other than holders of Registrable Securities and Parity Securities), allocated among such holders in such manner as they may agree; provided, that in any event the holders of Registrable Securities and Parity Securities shall be entitled to register at least 20% of the securities to be included in any such registration.

(c) If a Piggyback Registration is initiated as an underwritten offering on behalf of a holder of Common Stock other than Registrable Securities, and the managing underwriter advises the Company in writing that in its opinion the number of shares of Common Stock proposed to be included in such registration, including all Registrable Securities and all other shares of Common Stock proposed to be included in such underwritten offering, exceeds the number of shares of Common Stock that can be sold in such offering and/or that the number of shares of Common Stock proposed to be included in any such registration would adversely affect the price per share of the Common Stock to be sold in such offering, the Company shall include in such registration (i) first, the number of shares of Common Stock requested to be included therein by the holder(s) requesting such registration and by the holders of Registrable Securities and Parity Securities, allocated pro rata among such holders on the basis of the number of shares of Common Stock (on a fully diluted, as converted basis) and the number of Registrable Securities and Parity Securities, as applicable, owned by all such holders or in such manner as they may otherwise agree; and (ii) second, the number of shares of Common Stock requested to be included therein by other holders of Common Stock, allocated among such holders in such manner as they may agree.

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(d) If any Piggyback Registration is initiated as a primary underwritten offering on behalf of the Company, the Company shall select the investment banking firm or firms to act as the managing underwriter or underwriters in connection with such offering. The right of any holder to registration pursuant to this Section 3 shall be conditioned upon such holder’s participation in such underwriting and the inclusion of such holder’s Registrable Securities in the underwriting to the extent provided herein. All holders of Registrable Securities proposing to distribute their securities through such underwriting shall (together with the Company and the other holders of securities of the Company with registration rights to participate therein distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected by the Company.

4. Lock-up Agreement. Each holder of Registrable Securities agrees that in connection with any public offering of the Company’s Common Stock or other equity securities in which such holder is participating, and upon the request of the managing underwriter in such offering, such holder shall not, without the prior written consent of such managing underwriter, during the period commencing on the effective date of such registration and ending on the date specified by such managing underwriter (such period not to exceed 90 days), (a) offer, pledge, sell, contract to sell, grant any option or contract to purchase, purchase any option or contract to sell, hedge the beneficial ownership of or otherwise dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into, exercisable for or exchangeable for shares of Common Stock, held immediately before the effectiveness of the registration statement for such offering, or (b) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of such securities, whether any such transaction described in clause (a) or (b) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise; provided, however, that such 90-day period may be extended for such period as may be reasonably requested by the Company or an underwriter to accommodate regulatory restrictions on (1) the publication or other distribution of research reports and (2) analyst recommendations and opinions, including, but not limited to, the restrictions contained in FINRA Rule 2711(f)(4) or NYSE Rule 472(f)(4), or any successor provisions or amendments thereto. The foregoing provisions of this Section 4 shall not apply to sales of Registrable Securities to be included in such offering pursuant to Section 2(a), Section 2(b) or Section 3(a), and shall be applicable to the holders of Registrable Securities only if all officers and directors of the Company and all stockholders owning more than one percent (1%) of the Company’s outstanding Common Stock are subject to the same restrictions. Each holder of Registrable Securities agrees to execute and deliver such other agreements as may be reasonably requested by the Company or the managing underwriter which are consistent with the foregoing or which are necessary to give further effect thereto. Notwithstanding anything to the contrary contained in this Section 4, each holder of Registrable Securities shall be released, pro rata, from any lock-up agreement entered into pursuant to this Section 4 in the event and to the extent that the managing underwriter or the Company permit any discretionary waiver or termination of the restrictions of any lock-up agreement pertaining to any officer, director or holder of greater than one percent (1%) of the outstanding Common Stock. Each holder of

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Registrable Securities included in the Registration Statement agrees to execute such agreements as may reasonably be requested by the representative of the underwriters that are necessary to give effect to this Section 4.

5. Registration Procedures. If and whenever the holders of Registrable Securities request that any Registrable Securities be registered pursuant to the provisions of this Agreement, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto the Company shall as soon as reasonably practicable:

(a) subject to Section 2(a) and Section 2(b), prepare and file with the Commission a Registration Statement with respect to such Registrable Securities and use its reasonable best efforts to cause such Registration Statement to become effective;

(b) prepare and file with the Commission such amendments, post-effective 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 a period of not less than 180 days (or in the case of any Shelf Registration, for the maximum offering period permitted under Rule 415), or if earlier, until all of such Registrable Securities have been disposed of and to comply with the provisions of the Securities Act with respect to the disposition of such Registrable Securities in accordance with the intended methods of disposition set forth in such Registration Statement;

(c) within a reasonable time before filing such Registration Statement, Prospectus or amendments or supplements thereto, furnish to one counsel selected by holders of a majority of such Registrable Securities copies of such documents proposed to be filed, which documents shall be subject to the review, comment and approval of such counsel; provided, that the Company shall not have any obligation to modify any information if the Company reasonably expects that so doing would cause the Registration Statement, Prospectus or any amendment or supplement thereto to contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statement therein not misleading.

(d) notify each selling holder of Registrable Securities, promptly after the Company receives notice thereof, of the time when such Registration Statement has been declared effective or a supplement to any Prospectus forming a part of such Registration Statement has been filed;

(e) furnish to each selling holder of Registrable Securities such number of copies of the Prospectus included in such Registration Statement (including each preliminary Prospectus) and any supplement thereto (in each case including all exhibits and documents incorporated by reference therein) and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;

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(f) use its reasonable best efforts to register or qualify such Registrable Securities under such other securities or “blue sky” laws of such jurisdictions as any selling holder reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such holders to consummate the disposition in such jurisdictions of the Registrable Securities owned by such holders; provided, that the Company shall not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this Section 5(f);

(g) notify each selling holder of such Registrable Securities, at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading in light of the circumstances then existing, and, at the request of any such holder, the Company shall as soon as practicable prepare a supplement or amendment to such Prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such Prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading in light of the circumstances then existing; provided, that each selling holder of such Registrable Securities, upon receipt of any notice from the Company of any event of the kind described in this Section 5(g) hereof, shall forthwith discontinue disposition of such Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until such holder is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by this Section 5(g), and if so directed by the Company, such holder shall deliver to the Company (at the Company’s expense) all copies, other than permanent file copies then in such holder’s possession, of the Prospectus covering such Registrable Securities at the time of receipt of such notice; and provided, further, that if the Company shall give any notice to suspend the disposition of Registrable Securities pursuant to a Prospectus (a “Suspension Notice”), the Company shall extend the period of time during which the Company is required to maintain the Registration Statement effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date such holder either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by this Section 5(g);

(h) make available for inspection by any selling holder of Registrable Securities, any underwriter participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other agent retained by any such holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such Inspector in connection with

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such Registration Statement; provided, however, that the Company’s obligations under this Section 5(h) shall not apply to any material nonpublic information of the Company unless expressly and reasonably requested by any such Inspector, in which event the Company shall make such requested material nonpublic information available to such Inspector, subject to the execution by or on behalf of such Inspector of a customary confidentiality agreement in favor of the Company in form and substance reasonably acceptable to the Company;

(i) provide a transfer agent and registrar (which may be the same entity) for all such Registrable Securities not later than the effective date of such registration;

(j) use its reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which the Common Stock is then listed;

(k) in connection with an underwritten offering, enter into such customary agreements (including underwriting and lock-up agreements in customary form) and take all such other customary actions as the holders of such Registrable Securities or the managing underwriter of such offering reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, making appropriate officers of the Company available to participate in “road show” and other customary marketing activities (including one-on-one meetings with prospective purchasers of the Registrable Securities);

(l) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission and make available to its stockholders an earnings statement (in a form that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder) no later than thirty (30) days after the end of the 12-month period beginning with the first day of the Company’s first full fiscal quarter after the effective date of such Registration Statement, which earnings statement shall cover said 12-month period, and which requirement will be deemed to be satisfied if the Company timely files complete and accurate information on Forms 10-Q, 10-K and 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act; and

(m) if required to be delivered to the underwriters for an underwritten offering, furnish each selling holder of Registrable Securities and each underwriter, if any, with (i) a legal opinion of the Company’s outside counsel, dated the effective date of such Registration Statement (and, if such registration includes an underwritten public offering, dated the date of the closing under the underwriting agreement), in form and substance as is customarily given in opinions of the Company’s counsel to underwriters in underwritten public offerings; and (ii) a “comfort” letter signed by the Company’s independent certified public accountants in form and substance as is customarily given in accountants’ letters to underwriters in underwritten public offerings;

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(n) without limiting Section 5(f) above, use its reasonable best efforts to cause such Registrable Securities to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the holders of such Registrable Securities to consummate the disposition of such Registrable Securities in accordance with their intended method of distribution thereof;

(o) notify the holders of Registrable Securities promptly of any request by the Commission for the amending or supplementing of such Registration Statement or Prospectus or for additional information;

(p) advise the holders of Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued;

(q) permit any holder of Registrable Securities which holder, in its sole and exclusive judgment, might be deemed to be an underwriter or a controlling person of the Company, to participate in the preparation of such Registration Statement, and reasonably consider the insertion therein of language, furnished to the Company in writing, which in the reasonable judgment of such holder and its counsel should be included;

(r) otherwise use its reasonable best efforts to take all other steps necessary to effect the registration of such Registrable Securities contemplated hereby;

(s) Notwithstanding the provisions of this Section 5, the Company shall be entitled to postpone or suspend, for a reasonable period of time, the effectiveness or use of, or trading under, any Registration Statement if the Company shall determine that the sale of any securities pursuant to such Registration Statement would in the good faith judgment of the Board of Directors of the Company:

(i) materially impede, delay or interfere with any material pending or proposed financing, acquisition, corporate reorganization or other similar transaction involving the Company for which the Board has authorized negotiations;

(ii) materially adversely impair the consummation of any pending or proposed material offering or sale of any class of securities by the Company; or

(iii) require disclosure of material non-public information that, if disclosed at such time, would be materially harmful to the interests of the Company and its stockholders; provided, however, that during any such period all executive officers and directors of the Company are also prohibited from selling securities of the Company (or any security of any of the Company’s subsidiaries or affiliates).

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In the event of the postponement of effectiveness or suspension of use of any Registration Statement pursuant to this Section 5(s), the applicable time period during which such Registration Statement is to remain effective shall be extended by that number of days equal to the number of days of the postponement or suspension period.

6. Expenses. All expenses (other than Selling Expenses) incurred by the Company in complying with its obligations pursuant to this Agreement and in connection with the registration and disposition of Registrable Securities, including, without limitation, all registration and filing fees, underwriting expenses (other than fees, commissions or discounts), expenses of any audits incident to or required by any such registration, fees and expenses of complying with securities and “blue sky” laws, printing expenses, fees and expenses of the Company’s counsel and accountants, and reasonable fees and expenses of one counsel for the holders of Registrable Securities participating in such registration as a group (selected by, in the case of a registration under Section 2(a) or Section 2(b), the holders of a majority of the Registrable Securities initially requesting such registration, and, in the case of all other registrations hereunder, the holders of a majority of the Registrable Securities included in the registration), shall be paid by the Company. All Selling Expenses relating to Registrable Securities registered pursuant to this Agreement shall be borne and paid by the holders of such Registrable Securities, in proportion to the number of Registrable Securities registered for each such holder.

7. Indemnification.

(a) The Company shall indemnify and hold harmless, to the fullest extent permitted by law, each holder of Registrable Securities, such holder’s officers, directors, managers, members, partners, stockholders and Affiliates, each underwriter, if any, and each other Person, if any, who controls any of the foregoing Persons within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, against all losses, claims, actions, damages, liabilities and expenses, joint or several, to which any of the foregoing Persons may become subject under the Securities Act or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses arise out of or are based upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 promulgated under the Securities Act) or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, or any violation or alleged violation by the Company of the Securities Act or any other federal or state securities laws or any rule or regulation promulgated thereunder applicable to the Company and relating to action or inaction required of the Company in connection with any such registration, qualification or compliance; and shall reimburse such Persons for any legal or other expenses reasonably incurred by any of them in connection with investigating or defending any such loss, claim, action, damage or liability, except insofar as the same arise out of or are based upon any information furnished in writing to the Company by such holder expressly for use therein.

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(b) In connection with any registration in which one or more holders of Registrable Securities is participating, each such holder, to the fullest extent permitted by law, shall indemnify and hold harmless, the Company, each director of the Company, each officer of the Company who shall sign such Registration Statement, each underwriter, if any, and each Person who controls any of the foregoing Persons within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act against any losses, claims, actions, damages, liabilities or expenses resulting from any untrue or alleged untrue statement of material fact contained in the Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 promulgated under the Securities Act) or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, and shall reimburse such Persons for any legal or other expenses reasonably incurred by any of them in connection with investigating or defending any such loss, claim, action, damage or liability in each case to the extent, but only to the extent, that such untrue statement or omission is made in reliance upon and in conformity with any written information so furnished by such holder and stated to be specifically for use in any such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus or any amendment or supplement thereto; provided, that the obligation to indemnify shall be several, not joint and several, for each holder and shall be limited to the net proceeds (after underwriting fees, commissions or discounts) actually received by such holder from the sale of Registrable Securities pursuant to such Registration Statement.

(c) Promptly after receipt by an indemnified party of notice of the commencement of any action involving a claim referred to in this Section 7, such indemnified party shall, if a claim in respect thereof is made against an indemnifying party, give written notice to the latter of the commencement of such action. The failure of any indemnified party to notify an indemnifying party of any such action shall not (unless such failure shall have a material adverse effect on the indemnifying party) relieve the indemnifying party from any liability in respect of such action that it may have to such indemnified party hereunder. In case any such action is brought against an indemnified party, the indemnifying party shall be entitled to participate in and to assume the defense of the claims in any such action that are subject or potentially subject to indemnification hereunder, jointly with any other indemnifying party similarly notified to the extent that it may wish, with counsel reasonably satisfactory to such indemnified party, and after written notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be responsible for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof; provided, that if (i) any indemnified party shall have reasonably concluded that there may be one or more legal or equitable defenses available to such indemnified party which are additional to or conflict with those available to the indemnifying party, or that such claim or litigation involves or could have an effect upon matters beyond the scope of the indemnity provided hereunder, or (ii) such action seeks an injunction or equitable relief against any

14

indemnified party or involves actual or alleged criminal activity, the indemnifying party shall not have the right to assume the defense of such action on behalf of such indemnified party without such indemnified party’s prior written consent (but, without such consent, shall have the right to participate therein with counsel of its choice) and such indemnifying party shall reimburse such indemnified party and any Person controlling such indemnified party for that portion of the fees and expenses of any counsel retained by the indemnified party which is reasonably related to the matters covered by the indemnity provided hereunder. If the indemnifying party is not entitled to, or elects not to, assume the defense of a claim, it shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. In such instance, the conflicting indemnified parties shall have a right to retain one separate counsel, chosen by the holders of a majority of the Registrable Securities included in the registration, at the expense of the indemnifying party.

(d) No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation. Each indemnified party shall furnish such information regarding itself or the claim in question as an indemnifying party may reasonably request in writing and as shall be reasonably required in connection with defense of such claim and litigation resulting therefrom.

(e) If the indemnification provided for hereunder is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage, liability or action referred to herein, then the indemnifying party, in lieu of indemnifying such indemnified party hereunder, shall contribute to the amounts paid or payable by such indemnified party as a result of such loss, claim, damage, liability or action in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the indemnified party on the other in connection with the statements or omissions which resulted in such loss, claim, damage, liability or action as well as any other relevant equitable considerations; provided, that the maximum amount of liability in respect of such contribution shall be limited, in the case of each holder of Registrable Securities, to an amount equal to the net proceeds (after underwriting fees, commissions or discounts) actually received by such seller from the sale of Registrable Securities effected pursuant to such registration. The relative fault of the indemnifying party and of the indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access to information and

15

opportunity to correct or prevent such statement or omission. The parties agree that it would not be just and equitable if contribution pursuant hereto were determined by pro rata allocation or by any other method or allocation which does not take account of the equitable considerations referred to herein. No Person guilty or liable of fraudulent misrepresentation shall be entitled to contribution from any Person.

(f) Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with the underwritten public offering are in conflict with the foregoing provisions, the provisions in the underwriting agreement shall control.

8. Participation in Underwritten Registrations. No Person may participate in any registration hereunder which is underwritten unless such Person (a) agrees to sell such Person’s securities on the basis provided in any underwriting arrangements approved by the Person or Persons entitled hereunder to approve such arrangements and (b) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents required under the terms of such underwriting arrangements; provided, that no holder of Registrable Securities included in any underwritten registration shall be required to make any representations or warranties to the Company or the underwriters (other than representations and warranties regarding such holder, such holder’s ownership of its shares of Common Stock to be sold in the offering and such holder’s intended method of distribution) or to undertake any indemnification obligations to the Company or the underwriters with respect thereto, except as otherwise provided in Section 7.

9. Rule 144 Compliance. With a view to making available to the holders of Registrable Securities the benefits of Rule 144 under the Securities Act and any other rule or regulation of the Commission that may at any time permit a holder to sell securities of the Company to the public without registration or, following the IPO, pursuant to a registration on Form S-3 (or any successor form), the Company shall:

(a) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act, at all times after the Registration Date;

(b) file with the Commission in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act; and

(c) furnish to any holder so long as the holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act and of the Securities Act and the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed or furnished by the Company as such holder may reasonably request in connection with the sale of Registrable Securities without registration; provided, however, that any such document’s availability on the Commission’s Electronic Data Gathering Analysis and Retrieval (EDGAR) System database (or any successor thereto) shall satisfy such obligation.

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10. Preservation of Rights; Equivalent Registration Rights in Canada.

(a) The Company shall not (a) grant any registration rights to third parties which are preferential to, or more favorable than or inconsistent with the rights granted hereunder, or (b) enter into any agreement, take any action, or permit any change to occur, with respect to its securities that violates or subordinates the rights expressly granted to the holders of Registrable Securities in this Agreement. The Investor acknowledges that (i) the Company has entered, and from time to time may enter, into one or more agreements (whether contained within the limited partnership agreement of the Operating Partnership or separate therefrom) granting registration rights to Persons receiving shares of Common Stock (or OPUs or other securities convertible into, or exchangeable or exercisable for, shares of Common Stock); and (ii) such other registration rights shall be pari passu with the registration rights of the holders of Registrable Securities hereunder (including, without limitation, with respect to priority of inclusion of securities in any Registration). Any such securities that are the subject of such pari passu registration rights are referred to herein as “Parity Securities.”

(b) Prior to the date on which the Company becomes a reporting issuer in any Canadian province and/or lists the Common Stock for trading on the Toronto Stock Exchange, the Company shall enter into an agreement with the Investor, which agreement shall provide the Investor with all applicable registration, qualification and ancillary rights (equivalent to the rights provided to the Investor in this Agreement) with respect to any public offering of Common Stock in Canada. The foregoing shall be in addition to, and shall not in any way limit the Investor’s rights under, this Agreement.

11. Termination. This Agreement shall terminate and be of no further force or effect when there shall no longer be any Registrable Securities outstanding or, if earlier, upon the tenth (10th) anniversary of the date of this Agreement; provided, that the provisions of Section 6 and Section 7 shall survive any such termination.

12. Aggregation of Securities. All shares of Registrable Securities or Parity Securities held or acquired by the Investor and its Affiliates shall be aggregated together for the purpose of determining the availability of any rights under this Agreement and such Persons may apportion such rights as among themselves in any manner they deem appropriate.

13. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (d) on the third day after the date mailed, by certified or registered mail, return

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receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses indicated below (or at such other address for a party as shall be specified in a notice given in accordance with this Section 13).

If to the Company, to:

4901 Dickens Road, Suite 101

Richmond, Virginia 23230

Attention: Stanley J. Olander, Jr.

Facsimile No.: (804) 237-1345

with a copy to (which shall not constitute notice):

Goulston & Storrs P.C.

885 Third Avenue, 18th Floor

New York, New York 10022

Attention: Yaacov M. Gross, Esq.

Facsimile No.: (212) 878-6911

If to the Investor, to:

2335887 Ontario Inc.

1 Adelaide Street E.

Suite 1200

Toronto, Ontario M5C 3A7

Canada

Attention: Robert A.S. Douglas

Facsimile No.: (416) 681-2500

with a copy to (which shall not constitute notice):

Davies Ward Phillips & Vineberg LLP

900 Third Avenue, 24th Floor

New York, New York 10022

Attention: Jeffrey Nadler, Esq.

Facsimile No.: 212.318.0132

14. Entire Agreement. This Agreement, together with the Purchase Agreement and any related exhibits and schedules thereto, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. Notwithstanding the foregoing, in the event of any conflict between the terms and provisions of this Agreement and those of the Purchase Agreement, the terms and conditions of this Agreement shall control.

15. Successor and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Each Investor may assign its rights hereunder to any purchaser or transferee of at least 100,000 shares of Registrable Securities (as presently constituted and subject to subsequent adjustments for

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stock splits, stock dividends, reverse stock splits and the like); provided, that such purchaser or transferee shall, as a condition to the effectiveness of such assignment, be required to execute a counterpart to this Agreement agreeing to be treated as the Investor whereupon such purchaser or transferee shall have the benefits of, and shall be subject to the restrictions contained in, this Agreement as if such purchaser or transferee was originally included in the definition of the Investor herein and had originally been a party hereto.

16. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.

17. Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.

18. Amendment, Modification and Waiver. The provisions of this Agreement may only be amended, modified, supplemented or waived with the prior written consent of the Company and the holders of a majority of the Registrable Securities. No waiver by any party or parties shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

19. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

20. Remedies. Each holder of Registrable Securities, in addition to being entitled to exercise all rights granted by law, including recovery of damages, shall be entitled to specific performance of its rights under this Agreement. The Company acknowledges that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Agreement and the Company hereby agrees to waive the defense in any action for specific performance that a remedy at law would be adequate.

21. Governing Law; Submission to Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of New York. Any legal suit, action or proceeding arising out of or based upon this

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Agreement or the transactions contemplated hereby may be instituted in the federal courts of the United States sitting in the Southern District of New York, or the courts of the State of New York located in the Borough of Manhattan in the County of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or any proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

22. Waiver of Jury Trial. Each party acknowledges and agrees that any controversy which may arise under this Agreement is likely to involve complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby. Each party to this Agreement certifies and acknowledges that (a) no representative of any other party has represented, expressly or otherwise, that such other party would not seek to enforce the foregoing waiver in the event of a legal action, (b) such party has considered the implications of this waiver, (c) such party makes this waiver voluntarily, and (d) such party has been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this Section 22.

23. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

[SIGNATURE PAGE FOLLOWS]

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first written above.

LANDMARK APARTMENT TRUST OF AMERICA, INC.
By:	/s/ Stanley J. Olander
Name:	Stanley J. Olander
Title:	Chief Executive Officer

(Signature page to Registration Rights Agreement relating to Securities Purchase Agreement)

IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first written above.

2335887 LIMITED PARTNERSHIP, by its general partner, 2335887 ONTARIO INC.
By:	/s/ Robert A. S. Douglas
Name:	Robert A. S. Douglas
Title:	President
By:	/s/ Joseph Lyn
Name:	Joseph Lyn
Title:	Vice-President and Secretary

(Signature page to Registration Rights Agreement relating to Securities Purchase Agreement)

EX-10.1

Exhibit 10.1

SECURITIES PURCHASE AGREEMENT

BY AND BETWEEN

LANDMARK APARTMENT TRUST OF AMERICA, INC.

AND

2335887 LIMITED PARTNERSHIP

Dated as of February 27, 2013

TABLE OF CONTENTS

ARTICLE I. Interpretation		1
1.1	Certain Definitions	1
1.2	Construction	8
ARTICLE II. Purchase and Sale of Securities		9
2.1	Purchase and Sale of Securities	9
2.2	Purchase Price	9
2.3	Closing	9
2.4	Closing Procedures	9
ARTICLE III. Representations and Warranties of the Corporation		9
3.1	Good Standing of the Corporation and the Operating Partnership	9
3.2	Good Standing of Subsidiaries	10
3.3	Authorization of Agreement	10
3.4	Consents and Approvals	11
3.5	No Conflicts; No Violations	11
3.6	Capitalization	12
3.7	Authorization of Preferred Stock	12
3.8	Absence of Defaults	12
3.9	Absence of Proceedings	13
3.10	Absence of Undisclosed Liabilities	13
3.11	Indebtedness	13
3.12	FF&E	13
3.13	Investment Company	13
3.14	Compliance	14
3.15	Insurance	14
3.16	Solvency	14
3.17	Private Placement	14
3.18	Registration Rights	14
3.19	Waiver of Ownership Limits	14
3.20	Application of Takeover Protections	15
3.21	Matters Relating to Uncontributed Portfolio Entities and Uncontributed Portfolio Properties	15
3.22	Certain Fees	17
3.23	SEC Reports; Financial Statements	17
3.24	No Material Adverse Change in Business	18
3.25	Accuracy of Descriptions	18
3.26	Possession of Intellectual Property	18
3.27	Possession of Licenses and Permits	19
3.28	Title to Property	19
3.29	Condition of Properties	20
3.30	Access and Utilities	20
3.31	No Condemnation	20

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3.32	Environmental Laws	20
3.33	Accounting Controls and Disclosure Controls	21
3.34	Tax Returns and Payment of Taxes	21
3.35	Insurance	22
3.36	REIT Qualification	22
3.37	ERISA	22
3.38	Absence of Labor Dispute	22
3.39	Foreign Corrupt Practices Act	22
3.40	Money Laundering Laws	23
3.41	OFAC	23
3.42	August Transaction Agreements	23
3.43	Acknowledgment Regarding Purchaser’s Purchase of Securities	23
3.44	Original Issue Date	24
ARTICLE IV. Representations and Warranties of the Purchaser		24
4.1	Organization	24
4.2	Authorization	24
4.3	Consents and Approvals	24
4.4	No Conflicts	25
4.5	Brokers’ Fees	25
4.6	Securities Law Matters	25
4.7	Patriot Act	25
4.8	Special Representation	26
4.9	No Other Representations or Warranties	26
ARTICLE V. [Intentionally Omitted]		27
ARTICLE VI. Conditions Precedent to Closing		27
6.1	Conditions Precedent to the Corporation’s Obligations	27
6.2	Conditions Precedent to the Purchaser’s Obligations	27
ARTICLE VII. [Intentionally Omitted]		28
ARTICLE VIII. Closing Deliveries		28
8.1	Items to Be Delivered by the Corporation	28
8.2	Items to Be Delivered by the Purchaser	30
ARTICLE IX. Other Agreements of the Parties		30
9.1	All Reasonable Efforts; Further Assurances	30
9.2	Notification	30
9.3	Issuance of Preferred Stock	31
9.4	Public Announcements	31
9.5	Confidentiality	31
9.6	Title to Acquired Properties	31
9.7	Transfer Taxes	32
9.8	Transfer Restrictions	32
9.9	Pre-emptive Rights	34
9.10	No Impairment	34

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9.11	Director and Officer Insurance	34
9.12	Access	35
9.13	Amendments to Transaction Documents	35
9.14	Integration	35
9.15	Appraisal	35
9.16	Use of Proceeds	36
9.17	Other Reporting Obligations	36
9.18	Affiliate Transactions	37
9.19	Investment Company Act	38
9.20	Amendment to Series A Preferred Articles Supplementary	38
ARTICLE X. Survival and Indemnification		39
10.1	Survival of Representations, Warranties, and Covenants	39
10.2	Indemnification	39
10.3	Procedures for Third-Party Claims	40
10.4	Direct Claims	41
10.5	Certain Other Matters	41
ARTICLE XI. Miscellaneous		42
11.1	Amendments	42
11.2	Assignment	42
11.3	Binding Effect	42
11.4	Counterparts	42
11.5	Entire Agreement	42
11.6	Fees and Expenses	42
11.7	Governing Law	43
11.8	Headings	43
11.9	Jurisdiction	43
11.10	Notices	43
11.11	No Recourse	44
11.12	Severability	44
11.13	Specific Performance	45
11.14	Third-Party Beneficiaries	45
11.15	Waiver	45

Index of Schedules

Schedule A:	Existing Properties and Existing LATA Indebtedness
Schedule B:	Uncontributed Portfolio Properties

Schedule 1.2(c)(i):	Corporation Knowledge Parties
Schedule 1.2(c)(ii):	Purchaser Knowledge Parties

Schedule 3.4:	Consents and Approvals
Schedule 3.5:	No Conflicts; No Violations
Schedule 3.22:	Certain Fees

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Index of Exhibits

Exhibit A:	Articles Supplementary
Exhibit B:	Form of Warrant
Exhibit C-1:	Form of Opinion of Counsel to Corporation
Exhibit C-2:	Form of Opinion of Tax Counsel to Corporation
Exhibit D:	Form of Registration Rights Agreement
Exhibit E:	Form of REIT Ownership Limit Waiver

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SECURITIES PURCHASE AGREEMENT

THIS SECURITIES PURCHASE AGREEMENT (this “Agreement”) is entered into as of February 27, 2013, by and between LANDMARK APARTMENT TRUST OF AMERICA, INC., a Maryland corporation (the “Corporation”), and 2335887 LIMITED PARTNERSHIP, an Ontario limited partnership (the “Purchaser”).

R E C I T A L S

WHEREAS, pursuant to that certain Securities Purchase Agreement, dated as of August 3, 2012, by and among the Corporation, the Purchaser, DK Landmark, LLC, a Florida limited liability company (“DeBartolo”), and Elco Landmark Residential Holdings, LLC, a Delaware limited liability company (“ELRH”) (the “August SPA”), the Corporation sold (i) four million (4,000,000) shares of the Corporation’s 9.75% Series A Cumulative Non-Convertible Preferred Stock, par value $0.01 per share (the “Series A Preferred Stock”) together with a warrant to purchase shares of Common Stock (as defined below) to the Purchaser and (ii) one million (1,000,000) shares of the Corporation’s 9.75% Series B Cumulative Non-Convertible Preferred Stock, par value $0.01 per share (the “Series B Preferred Stock” and, together with the Series A Preferred Stock, the “Preferred Stock”) together with a warrant to purchase shares of Common Stock to DeBartolo;

WHEREAS, the Corporation has increased the number of authorized shares of the Series A Preferred Stock from four million (4,000,000) to five million (5,000,000) by filing with the Department of Assessments and Taxation of the State of Maryland (the “Department”) the articles supplementary in the form attached hereto as Exhibit A (the “Articles Supplementary”) in accordance with the Maryland General Corporation Law (the “MGCL”);

WHEREAS, on the terms and subject to the conditions set forth herein, the Corporation desires to issue and sell to the Purchaser, and the Purchaser desires to purchase and acquire from the Corporation, one million (1,000,000) shares of the Series A Preferred Stock, on the Closing Date (as defined below) (collectively, the “Series A Preferred Shares”), together with warrants reflecting 100% warrant coverage to acquire shares of Common Stock in the form attached hereto as Exhibit B (each a “Series A Warrant”);

NOW, THEREFORE, in consideration of the foregoing recitals and the representations, warranties, covenants, and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

ARTICLE I.

Interpretation

1.1 Certain Definitions. The following terms shall have the meanings set forth below:

“Affiliate” means, in respect of any Person, any other Person that is directly or indirectly controlling, controlled by, or under common control with such Person, and the term “control” (including the terms “controlled by” and “under common control with”) means having, directly or indirectly, the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities or by contract or otherwise.

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“Annual Report” has the meaning ascribed to it in Section 3.2.

“Articles Supplementary” has the meaning ascribed to it in the recitals to this Agreement.

“August SPA” has the meaning ascribed to it in the recitals to this Agreement.

“August Transaction Agreements” has the meaning ascribed to “Transaction Agreements” in the Master Agreement.

“Business Day” means each day, other than a Saturday or a Sunday, that is not a day on which banking institutions in New York are authorized or required by law, regulation or executive order to close.

“Capital Stock” means all classes or series of stock of the Corporation, including, without limitation, Common Equity, Series A Preferred Stock and Series B Preferred Stock.

“Charter” means the Articles of Amendment and Restatement of the Corporation dated as of July 18, 2006, as amended by the Articles of Amendment dated as of December 7, 2007, the Second Articles of Amendment dated as of June 22, 2010, the Third Articles of Amendment dated as of December 28, 2010, the Fourth Articles of Amendment dated as of August 6, 2012, and as the same may thereafter be amended or restated.

“Closing” has the meaning ascribed to it in Section 2.3.

“Closing Date” has the meaning ascribed to it in Section 2.3.

“Code” means the United States Internal Revenue Code of 1986, as amended from time to time.

“Common Equity” means all shares now or hereafter authorized of any class of common stock of the Corporation, including the Common Stock, and any other stock of the Corporation, howsoever designated, authorized after the Closing Date, which has the right (subject always to prior rights of any class or series of preferred stock) to participate in the distribution of the assets and earnings of the Corporation without limit as to per share amount.

“Common Stock” means the common stock, $.01 par value per share, of the Corporation.

“Contract” has the meaning ascribed thereto in the Master Agreement.

“Corporation” has the meaning ascribed to it in the preamble to this Agreement.

“DeBartolo” has the meaning ascribed to it in the preamble to this Agreement.

“DB Contribution Agreement” means each of the those certain Interest Contribution Agreements, dated as of August 3, 2012, by and among the Corporation, the Operating Partnership, one or more of DeBartolo and its Affiliates and the other parties thereto if any, without giving effect to any amendment, modification or waiver thereof.

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“Department” has the meaning ascribed to it in the recitals to this Agreement.

“Developments and Improvements” has the meaning ascribed to it in Section 3.29.

“Direct Claim” has the meaning ascribed to it in Section 10.4.

“Domestically Controlled REIT” shall mean a REIT that is a “domestically controlled qualified investment entity” meeting the ownership requirements of Code section 897(h)(4)(B).

“ELRH” has the meaning ascribed to it in the recitals to this Agreement.

“Environmental Law” and “Environmental Laws” have the meaning ascribed to each term in Section 3.21(d).

“Equity Interest” means (i) in the case of a corporation, shares of stock, (ii) in the case of a general or limited partnership, partnership interests, (iii) in the case of a limited liability company, limited liability company interests, (iv) in the case of a trust, beneficial interests therein, and (v) in the case of any other Person that is not an individual, the comparable interests therein.

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Executive Order” has the meaning ascribed to it in Section 4.7(a).

“FCPN” means the Foreign Corrupt Purchases Act of 1977, as amended, and the rules and regulations thereunder.

“GAAP” means generally accepted accounting principles in the United States.

“Government Approval” means any authorization, consent, approval, waiver, exception, variance, order, exemption, publication, filing, declaration, concession, grant, franchise, agreement, permission, permit, or license of, from or with any Governmental Entity, the giving notice to or registration with any Governmental Entity or any other action in respect of any Governmental Entity.

“Governmental Entity” means (a) anybody exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including any governmental agency, department, board, commission or other instrumentality, whether national, territorial, federal, state, provincial, local, supranational or other authority, (b) any organization of multiple nations, or (c) any tribunal, court or arbitrator of competent jurisdiction.

“Governmental Licenses” has the meaning ascribed to it in Section 3.25.

“Hazardous Materials” has the meaning ascribed to it in Section 3.21(d).

“IFRS” has the meaning ascribed to it in Section 9.17(b)(ii).

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“Indebtedness” has the meaning ascribed thereto in the Series A Preferred Articles Supplementary.

“Indemnitee” means any Person entitled to indemnification under this Agreement.

“Indemnitor” means any Person required to provide indemnification under this Agreement.

“Indemnity Payment” means any amount of Losses required to be paid pursuant to this Agreement.

“Intellectual Property” has the meaning ascribed thereto in Section 3.26.

“Law” means mean (a) any constitution applicable to, and any statute, treaty, rule, regulation, ordinance, or requirement of any kind of, any Governmental Entity, (b) principles of common law, and (c) any Order.

“Lender Approval” has the meaning ascribed thereto in the Master Agreement or the applicable DB Contribution Agreement, as the case may be.

“Lien” means any security interest, lien, pledge, charge, encumbrance, mortgage, indenture, security agreement or other similar agreement, arrangement, contract, commitment, or obligation, whether or not relating in any way to credit or the borrowing of money.

“Liquidation Preference” in respect of Series A Preferred Stock and Series B Preferred Stock, as applicable, has the meaning ascribed thereto in the Series A Preferred Articles Supplementary and Series B Preferred Articles Supplementary, respectively.

“Losses” means any and all direct and reasonable indirect damages (but excluding any consequential, special or punitive damages, unless such damages are actually incurred by a party in connection with any Proceedings in respect of such party is entitled to be indemnified hereunder in which case such damages shall be included), fines, penalties, deficiencies, liabilities, claims, losses (including loss of value), judgments, awards, settlements, taxes, actions, obligations and costs and expenses in connection therewith (including, without limitation, interest, court costs and fees and expenses of attorneys, accountants and other experts, or any other expenses of litigation or other Proceedings or of any default or assessment).

“Master Agreement” means that certain Master Contribution and Recapitalization Agreement, dated as of August 3, 2012, by and among the Corporation, the Operating Partnership, a Virginia limited partnership, ELRH and Elco Landmark Residential Management LLC, without giving effect to any amendment, modification or waiver thereof.

“Material Adverse Effect” means any result, occurrence, fact, change or event (whether or not known or foreseeable as of the date of this Agreement) that, individually, or in the aggregate with any such other results, occurrences, facts, changes, or events, has a material adverse effect on (i) the earnings, business affairs, business prospects, management, assets, properties, condition (financial or otherwise) or results of operations of the Corporation and its Subsidiaries, taken as a whole, or (ii) the ability of the Corporation and its Affiliates to perform

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in a timely manner their obligations under this Agreement and the other Transaction Documents and to consummate the transactions contemplated hereby or thereby; provided that, without limitation to the foregoing, it is understood and agreed that each of the following shall be deemed a Material Adverse Effect under this Agreement: (x) a “Portfolio Material Adverse Effect” (as defined in the Master Agreement on the date hereof without giving effect to any amendment, modification or waiver thereof), and (y) a material adverse effect on the value of the Portfolio Properties, taken as a whole.

“MGCL” has the meaning ascribed to it in the recitals to this Agreement.

“Money Laundering Laws” means all applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency.

“OFAC” means the Office of Foreign Assets Control of the U.S. Treasury Department.

“Operating Partnership” means Landmark Apartment Trust of America Holdings, L.P., a Virginia limited partnership.

“Order” means any decree, injunction, judgment, order, ruling, writ, assessment or arbitration award of a Governmental Entity, arbitrator or arbitral body, commission or self-regulatory organization, whether arising from a Proceeding or applicable Law.

“Ordinary Course” means, with respect to the Corporation, the ordinary course of business thereof, as the case may be, consistent with past custom and practice (including as applicable, with respect to quantity and frequency).

“Organizational Documents” means, with respect to a corporation, limited liability company, partnership, or other legally authorized incorporated or unincorporated entity, (i) the articles of incorporation, certificate of incorporation, articles of organization, articles of association, articles supplementary, certificate of limited partnership or other applicable organizational or charter documents relating to the creation or organization of such entity, together with any amendment or supplement to any of the foregoing and (ii) the bylaws, operating agreement, partnership agreement, or other applicable documents relating to the operation, governance or management of such entity, including any security holders’ agreement, voting agreement, voting trust agreement, joint venture agreement or registration rights agreement, together with any amendment or supplement to any of the foregoing.

“Originating Proceedings” has the meaning ascribed to it in Section 10.2(a)(iv).

“Patriot Act” has the meaning ascribed to it in Section 4.7(a).

“Permitted Encumbrances” (i) with respect to any Uncontributed Portfolio Property, has the meaning ascribed thereto in the Master Agreement or the applicable DB Contribution Agreement, and (ii) with respect to any other property, has the meaning ascribed thereto in the Master Agreement.

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“Person” means any individual, partnership, limited partnership, corporation, limited liability company, association, joint stock company, trust, joint venture, unincorporated organization, or other entity.

“Portfolio Properties” has the meaning ascribed to the term “Contributed Property” in the August SPA.

“Preferred Equity Securities” means (i) any and all shares of Capital Stock ranking senior to the Common Equity in respect of the right to receive dividends or the right to participate in any distribution upon liquidation, dissolution or winding up of the affairs of the Corporation or the right of redemption thereof, and (ii) any and all securities of the Corporation convertible into, or exchangeable or exercisable for, such shares, and options, warrants or other rights to acquire such shares.

“Preferred Stock” has the meaning ascribed to it in the recitals to this Agreement.

“Proceeding” means any action, claim, audit or other inquiry, hearing, investigation, suit or other charge or proceeding (whether civil, criminal, administrative, investigative, formal or informal) by or before any Governmental Entity or before an arbitrator or arbitral body or mediator.

“Proceeds Account” has the meaning ascribed to it in Section 9.16.

“Purchaser” has the meaning ascribed to it in the preamble to this Agreement.

“Purchaser Documents” has the meaning ascribed to it in Section 4.2.

“Receiving Party” has the meaning ascribed to it in Section 9.5.

“Registration Rights Agreement” has the meaning ascribed to it in Section 8.1(j).

“Regulations” means the Treasury Regulations promulgated under the Code as such regulations may be amended from time to time (including the corresponding provisions of succeeding regulations).

“Representative” has the meaning ascribed to it in Section 10.2(a)(iv).

“REIT” means any real estate investment trust complying with the requirements of Sections 856 through 860 of the Code and the Regulations related thereto.

“REIT Ownership Limit Waiver” has the meaning ascribed to it in Section 8.1(k).

“Related Person” means any employee, officer, or director of any of the Corporation and its Subsidiaries, any member of his or her immediate family, or any Person controlled by any of the foregoing Persons.

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“Rule 144” means Rule 144 promulgated by the SEC pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC having substantially the same effect as such Rule.

“SEC” means the U.S. Securities and Exchange Commission and any governmental body or agency succeeding to the functions thereof.

“SEC Reports” means, collectively, all reports, schedules, forms, statements and other documents required by the Securities Act or the Exchange Act or the rules or regulations promulgated thereunder to be filed or furnished by the Corporation, including, without limitation, proxy information and solicitation materials, in each case, in the form and with the substance prescribed by either such Act or such rules or regulations.

“Securities” means the Series A Preferred Shares and the Series A Warrants issued as of the Closing Date.

“Securities Act” means the Securities Act of 1933, as amended.

“Series A Preferred Articles Supplementary” means the Articles Supplementary filed by the Corporation with the Department on August 2, 2012 with respect to the Series A Preferred Stock.

“Series A Preferred Shares” has the meaning ascribed to it in the recitals to this Agreement.

“Series A Preferred Stock” has the meaning ascribed to it in the recitals to this Agreement.

“Series A Warrant” has the meaning ascribed to it in the recitals to this Agreement.

“Series B Preferred Articles Supplementary” means the Articles Supplementary filed by the Corporation with the Department on August 2, 2012 with respect to the Series B Preferred Stock.

“Series B Preferred Stock” has the meaning ascribed to it in the recitals to this Agreement.

“Specified SEC Reports” means the Corporation’s Annual Report on Form 10-K for the year ended December 31, 2011, and any and all Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, in each case, filed after December 31, 2011 and prior to the Closing Date (excluding disclosures in the “Risk Factors” sections of any such SEC Reports).

“Subsidiary” means (i) in respect of the Corporation, any “subsidiary” of the Corporation as such term is defined in Rule 1-02 of Regulation S-X, including, without limitation, the Operating Partnership, and (ii) in respect of any other Person, any corporation, partnership, limited liability company, joint venture or other legal entity of which such Person (either directly or through or together with another Subsidiary of such Person), (A) owns capital stock or other Equity Interest having ordinary voting power to elect a majority of the board of directors (or

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equivalent) of such Person, (B) controls the management of which, directly or indirectly, through one or more intermediaries, (C) directly or indirectly through Subsidiaries owns more than 50% of the Equity Interests or (D) is a general partner.

“Third-Party Claim” means any claim, action, suit, or proceeding made or brought by any Person that is not a party to this Agreement or an Affiliate of a party to this Agreement.

“Transaction Documents” means, collectively, this Agreement, the stock certificates representing the Series A Preferred Shares, the Series A Warrants, the Series A Preferred Articles Supplementary, the Registration Rights Agreement, the Articles Supplementary and each other document, instrument, certificate, or agreement to be issued or executed by the parties pursuant to this Agreement or any other agreement referred to above to effect the transactions contemplated hereby or thereby.

“Uncontributed Portfolio Entity” means an entity that wholly owns, directly or indirectly, an Uncontributed Property.

“Uncontributed Portfolio Property” means each property identified on Schedule B hereto.

1.2 Construction.

(a) All References to “Articles,” “Sections,” “Schedules,” and “Exhibits” contained in this Agreement are, unless expressly stated otherwise herein, references to articles, sections, schedules, or exhibits of or to this Agreement.

(b) In this Agreement, unless the context clearly requires otherwise, (i) words of any gender include each other gender, (ii) words using the singular or plural number also include the plural or singular number, respectively, (iii) “day” means a calendar day; (ii) “U.S.” or “United States” means the United States of America; (iv) “including” or “include” mean “including without limitation” or “include without limitation”; (v) “dollar” or “$” means lawful currency of the United States; and (vi) references to specific Laws (such as the MGCL and the Code), or to specific sections or provisions of Laws, apply to the respective U.S. or state Laws that bear the names so specified and to any succeeding Law, section, or provision corresponding thereto and the rules and regulations promulgated thereunder.

(c) As used in this Agreement, the term “knowledge” means, with respect to the Corporation, the actual knowledge of the Persons listed on Schedule 1.2(c)(i) and with respect to the Purchaser, the actual knowledge of the Persons listed on Schedule 1.2(c)(ii).

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ARTICLE II.

Purchase and Sale of Securities

2.1 Purchase and Sale of Securities. Subject to the terms and conditions set forth herein, on the Closing Date:

(a) the Corporation shall issue, sell, and deliver to the Purchaser, and the Purchaser shall purchase and acquire from the Corporation, one million (1,000,000) shares of Series A Preferred Stock together with a Series A Warrant having warrant coverage equal to the aggregate purchase price in respect of such shares of Series A Preferred Stock; and

(b) the Corporation shall pay to the Purchaser a purchase fee equal to the aggregate sum of one percent (1%) of the Liquidation Preference (as defined in the Series A Preferred Articles Supplementary) of all shares of Series A Preferred Stock sold to the Purchaser on the Closing Date.

2.2 Purchase Price. On the terms and subject to the conditions set forth herein, the consideration to be paid to the Corporation at the Closing by the Purchaser for the sale and purchase of the Securities as contemplated herein shall be the aggregate sum of the Liquidation Preference (as defined in the Series A Preferred Articles Supplementary) for each share of Series A Preferred Stock sold by the Corporation and purchased by the Purchaser on the Closing Date. Any purchase price paid to the Corporation as set forth in this Section 2.2 shall be paid by wire transfer of immediately available funds to the Corporation’s account designated by the Corporation in writing at least two (2) Business Days prior to the Closing Date.

2.3 Closing. The closing of the purchase and sale of the Securities as set forth in Section 2.1 (the “Closing”) shall take place on the date hereof at the offices of Goulston & Storrs P.C., 885 Third Avenue, 18th Floor, New York, New York 10022, or such other mutually agreed upon location, provided that all of the conditions contained in Article VI have been satisfied or waived by such date (other than those conditions to be satisfied on the Closing Date, as defined below). The date of the Closing is referred to herein as the “Closing Date.”

2.4 Closing Procedures. All actions to be taken and all documents to be executed and delivered by the parties in connection with the consummation of the transactions contemplated at the Closing shall be reasonably satisfactory in form and substance to the other parties and their respective counsel. All actions to be taken and all documents to be executed and delivered by all parties hereto at the Closing shall be deemed to have been taken and executed and delivered simultaneously at the Closing, and no action shall be deemed taken nor any document executed or delivered until all have been taken, executed, and delivered.

ARTICLE III.

Representations and Warranties of the Corporation

The Corporation hereby makes the following representations and warranties to the Purchaser:

3.1 Good Standing of the Corporation and the Operating Partnership.

(a) The Corporation has been duly organized and is validly existing as a corporation in good standing with the Department and has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Specified SEC Reports; and the Corporation is duly qualified as a foreign corporation to transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to

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qualify or to be in good standing would not result in a Material Adverse Effect. Complete and correct copies of the Organizational Documents of the Corporation and all amendments thereto have been made available to the Purchaser.

(b) The Operating Partnership has been duly organized and is validly existing as a limited partnership in good standing under the laws of the Commonwealth of Virginia and has the limited partnership power and authority to own, lease and operate its properties and to conduct its business as described in the Specified SEC Reports; and the Operating Partnership is duly qualified as a foreign limited partnership to transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect. Complete and correct copies of the Organizational Documents of the Operating Partnership and all amendments thereto have been made available to the Purchaser.

3.2 Good Standing of Subsidiaries. The only Subsidiaries of the Corporation are the entities listed in Exhibit 21.1 to the Corporation’s Annual Report on Form 10-K for the year ended December 31, 2011 (the “Annual Report”) and those owning Portfolio Properties acquired since the Annual Report. Each Subsidiary of the Corporation (i) has been duly organized and is validly existing as a partnership or a limited liability company in good standing under the laws of the jurisdiction of its organization, (ii) has partnership or limited liability company power and authority, as applicable, to own, lease and operate its properties and to conduct its business as described in the Specified SEC Reports and (iii) is duly qualified as a foreign partnership or limited liability company, as the case may be, to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except in the case of this clause (iii) where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect; all of the issued and outstanding equity interests or capital stock, respectively, of each such Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and is owned by the Corporation, directly or through a Subsidiary, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity; none of the outstanding equity interests or shares of capital stock, respectively, of any Subsidiary was issued in violation of the preemptive or similar rights of any securityholder of such Subsidiary. Except for the equity interests and shares of capital stock, respectively, in its Subsidiaries, the Corporation does not own, directly or indirectly, any shares of stock or any other equity or long term debt securities of any corporation or have any equity interest in any firm, partnership, joint venture, association or other entity.

3.3 Authorization of Agreement. The Corporation has the requisite corporate power to execute and deliver this Agreement and each other Transaction Document to be executed by it and to perform its obligations hereunder and thereunder. Each Subsidiary of the Corporation that is party to any Transaction Document has the requisite limited partnership (or equivalent) power to execute and deliver each Transaction Document to be executed by it and to perform its obligations thereunder. The execution and delivery by the Corporation of this Agreement and each other Transaction Document to be executed by it and the performance by it of its obligations hereunder and thereunder have been duly authorized by all necessary corporate action on the part of the Corporation. The execution and delivery by each Subsidiary of the Corporation that is party to any Transaction Document of each Transaction Document to be

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executed by it and the performance by it of its obligations hereunder and thereunder have been duly authorized by all necessary limited partnership (or equivalent) action on the part of the such Subsidiary. This Agreement has been, and each Transaction Document to be executed by the Corporation or any Subsidiary of the Corporation will be, duly executed and delivered by a duly authorized officer of the Corporation (on its own behalf or indirectly on behalf of such Subsidiary, as the case may be) and constitute valid and binding obligations of the Corporation or such Subsidiary, as the case may be, enforceable against the Corporation or such Subsidiary, respectively, in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium, or other similar Laws affecting the enforcement of creditors’ rights in general and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).

3.4 Consents and Approvals. Except as set forth on Schedule 3.4, no consent, approval, waiver, order, or authorization of, or registration, declaration, or filing with, or notice to, any Person or Governmental Entity (including any consent, approval, waiver, or authorization in respect of any contract, license or permit) is required to be obtained or made by or in respect of the Corporation or any of its Subsidiaries in connection with the execution and delivery of this Agreement or any other Transaction Document by the Corporation or any of its Subsidiaries, the performance by the Corporation or any of its Subsidiaries of its obligations hereunder and thereunder or the consummation of the transactions contemplated hereby or thereby, other than (i) if required, the filing of a Form D with the SEC and filings with any applicable state securities regulatory authorities and (ii) those made or obtained prior to the Closing. The Corporation has obtained (i) an irrevocable written consent of DeBartolo to increase the authorized Series A Preferred Stock to the number of shares set forth in Section 3.7(a), and (ii) an irrevocable written waiver by DeBartolo of its pre-emptive rights pursuant to the August SPA to the transactions contemplated by this Agreement.

3.5 No Conflicts; No Violations. The execution and delivery of this Agreement does not (and of each other Transaction Document will not), and neither will the performance by the Corporation or any of its Subsidiaries of their respective obligations hereunder and thereunder, nor the consummation of the transactions contemplated hereby and thereby on the terms and conditions set forth herein and therein (i) conflict with the Organizational Documents of the Corporation or any of its Subsidiaries, (ii) except as set forth on Schedule 3.5, conflict with, result in any violation of, constitute a default (with or without notice, the passage of time or both) under, or give rise to a right of termination, cancellation, or acceleration of, or any obligation or to loss of a benefit under, any contract to which the Corporation or any of its Subsidiaries is a party or by which any of its assets or properties may be bound, (iii) violate, constitute a default (with or without notice, the passage of time or both) under, or cause the forfeiture, impairment, non-renewal, revocation, or suspension of any license or permit necessary for the conduct of the business of the Corporation or any of its Subsidiaries in compliance with all Laws, (iv) violate any Order of any Governmental Entity applicable to the Corporation or any of its Subsidiaries, (v) violate any Law applicable to the Corporation or any of its Subsidiaries, or (vi) result in the creation of any Lien upon any of the assets or properties of the Corporation or any of its Subsidiaries, except, in the case of clauses (ii) through (vi), as could not reasonably be expected to have a Material Adverse Effect.

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3.6 Capitalization. Except as set forth in the Specified SEC Reports or in the Transaction Documents, there are (i) no authorized or outstanding securities, rights (preemptive or other), subscriptions, calls, commitments, warrants, options, or other agreements that give any Person the right to purchase, subscribe for, or otherwise receive or be issued Capital Stock or any security convertible into or exchangeable or exercisable for Capital Stock, (ii) no outstanding debt or equity securities of the Corporation that upon the conversion, exchange, or exercise thereof would require the issuance, sale, or transfer by the Corporation of any new or additional Capital Stock (or any other securities of the Corporation which, whether after notice, lapse of time, or payment of monies, are or would be convertible into or exchangeable or exercisable for Capital Stock), (iii) no agreements or commitments obligating the Corporation to repurchase, redeem, or otherwise acquire Capital Stock or other securities of any Corporation Entity, and (iv) no outstanding or authorized stock appreciation rights, phantom stock, stock rights, or other equity-based interests in respect of the Corporation. The Corporation has not issued any voting indebtedness.

3.7 Authorization of Preferred Stock.

(a) Five million (5,000,000) shares of Preferred Stock have been designated as Series A Preferred Stock and one million (1,000,000) shares of Preferred Stock have been designated as Series B Preferred Stock. No other shares of Preferred Stock have been designated for issuance by the Board of Directors of the Corporation. The Corporation has no issued or outstanding Preferred Equity Securities other than (i) the Series A Preferred Stock issued pursuant to this Agreement and (ii) the Preferred Stock issued pursuant to the August SPA.

(b) The rights, preferences, privileges and restrictions of the Series A Preferred Stock are as set forth in the Series A Preferred Articles Supplementary. The rights, preferences, privileges and restrictions of the Series B Preferred Stock are as set forth in the Series B Preferred Articles Supplementary. When issued and delivered in accordance with the terms of this Agreement and the Series A Preferred Articles Supplementary, the Series A Preferred Shares will be duly authorized, validly issued, fully paid and nonassessable, free and clear of all Liens.

(c) The Common Stock issuable upon exercise of the Series A Warrants has been duly and validly reserved for issuance (based on an exercise price equal to Nine Dollars ($9.00)). When issued and delivered in accordance with the terms of the Series A Warrants, such Common Stock will be duly authorized, validly issued, fully paid and nonassessable, free and clear of all Liens.

3.8 Absence of Defaults.

Neither the Corporation nor any Subsidiary thereof is in violation of its Organizational Documents (including the provisions governing the Preferred Stock), or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Corporation or any Subsidiary thereof is a party or by which it or any of them may be bound, or to which any of the property or assets of the Corporation or any Subsidiary thereof is subject except for such defaults that would not result in a Material Adverse Effect.

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3.9 Absence of Proceedings.

There is no Proceeding now pending, or, to the knowledge of the Corporation, threatened, against or affecting the Corporation or any Subsidiary thereof, which is required to be disclosed in the SEC Reports which has not been so disclosed, or which might result in a Material Adverse Effect, or which might materially and adversely affect the properties or assets thereof or the consummation of the transactions contemplated in this Agreement and the other the Transaction Documents or the performance by the Corporation of its obligations hereunder or thereunder; the aggregate of all pending Proceedings to which the Corporation or any Subsidiary thereof is a party or of which any of their respective property or assets is the subject which are not described in the Specified SEC Reports, including routine litigation incidental to the business, would not reasonably be expected to result in a Material Adverse Effect.

3.10 Absence of Undisclosed Liabilities. Neither the Corporation nor any of its Subsidiaries has any material liabilities, whether currently due, accrued, absolute, contingent, unliquidated or otherwise, whether or not known, whether due or to become due and regardless of when asserted, other than the following: (i) any Indebtedness set forth on Schedule A hereto, (ii) liabilities fully and adequately reflected or reserved against in the Specified SEC Reports; (iii) liabilities incurred in the Ordinary Course of business of the Corporation and its Subsidiaries since the date of the latest audited annual financial statements included in the Specified SEC Reports, none of which could reasonably be expected to have a Material Adverse Effect; (iv) liabilities between or among any two or more of the Corporation and its Subsidiaries; and (v) liabilities of the type expressly covered by any other representations and warranties of the Corporation set forth in this Agreement.

3.11 Indebtedness. Schedule A hereto sets forth all Indebtedness of the Corporation and each of its Subsidiaries (including any Indebtedness secured by a mortgage on any real property) as of the Closing Date, listing separately (a) each such Indebtedness that is secured by a mortgage on any specific real property, (b) each such Indebtedness that is a Permitted Additional Unsecured Debt (as defined in the Series A Preferred Articles Supplementary) and (c) any other material Indebtedness. Neither the Corporation nor any of its Subsidiaries has any Indebtedness or any liabilities in respect thereof, whether currently due, accrued, absolute, contingent, unliquidated or otherwise, whether or not known, whether due or to become due and regardless of when asserted, except Indebtedness listed on Schedule A.

3.12 FF&E. There are no items owned or leased by a third party and used at any real property owned by the Corporation or its Subsidiaries by or on behalf of the owner of such real property in connection with the ownership, operation or maintenance of such real property that would otherwise constitute FF&E (as defined in the Master Agreement), except as has not had and could not reasonably be expected to have a Material Adverse Effect.

3.13 Investment Company. The Corporation is not, and after giving effect to the issuance of the Securities and the application of the proceeds thereof will not be, an “investment company” within the meaning of Investment Company Act of 1940, as amended.

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3.14 Compliance. None of the Corporation or any of its Subsidiaries is in violation of any Law or of any Order of any Governmental Entity which violation has had or could reasonably be expected to have a Material Adverse Effect.

3.15 Insurance. The Corporation and its Subsidiaries carry or are entitled to the benefits of insurance with financially sound and reputable insurers, in such amounts and covering such risks as are generally maintained by companies of established reputation engaged in the business of ownership of multifamily residential properties, and all such insurance is in full force and effect. The Corporation has no reason to believe that any of the Corporation and its Subsidiaries will not be able to (a) renew its existing insurance coverage as and when such policies expire or (b) obtain comparable coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost that would not reasonably be expected to result in a Material Adverse Effect. Since January 1, 2011, none of the Corporation and its Subsidiaries has been denied any material insurance coverage that it has sought or for which it has applied.

3.16 Solvency. The Corporation and its Subsidiaries are able to pay their respective debts (including trade debts) as they mature. The fair saleable value of all the assets and properties (including goodwill minus disposition costs) of the Corporation and its Subsidiaries, taken as a whole, exceeds the fair value of their liabilities and 101% of the Liquidation Preference of the outstanding shares of each series of Preferred Stock, both before and after giving effect to the consummation of the transactions contemplated by the Transaction Documents. The Corporation will not be left with unreasonably small capital after consummation of any transaction contemplated by the Transaction Documents.

3.17 Private Placement. Assuming the accuracy of the representations and warranties of the Purchaser set forth in Section 4.6, the offer, sale, and issuance of the Securities as contemplated hereby will be exempt from the registration requirements of the Securities Act and will have been registered or qualified (or are exempt from registration and qualification) under the registration or qualification requirements of all applicable state securities Laws. Neither the Corporation nor any Person acting on its behalf will take any action that would cause the loss of any such exemption. Assuming the accuracy of the representations and warranties of the Purchasers set forth in Section 4.6, the offer, sale, and issuance of the Securities as contemplated hereby will comply with all applicable federal and state Laws.

3.18 Registration Rights. Except as set forth in or as permitted by any of the Transaction Documents, the limited partnership agreement of the Operating Partnership or the Registration Rights Agreement, dated as of August 3, 2012, by and among the Corporation, the Purchaser and DeBartolo, as may be amended from time to time, the Corporation has not granted or agreed to grant to any Person any rights (including “piggy back” registration rights) to have any securities of the Corporation or any of its Subsidiaries registered with the SEC or any other Governmental Entity that have not been satisfied.

3.19 Waiver of Ownership Limits. The Board of Directors of the Corporation has waived the Aggregate Stock Ownership Limit and the Common Stock Ownership Limit (each as defined in the Charter), in accordance with the Charter to permit the Purchaser to acquire and hold ownership positions in the Corporation exceeding such limit or limits, to the extent provided in the REIT Ownership Limit Waiver delivered to the Purchaser at the Closing.

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3.20 Application of Takeover Protections. The Corporation has taken all necessary action, if any, in order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar provision under the Charter (or other Organizational Documents of the Corporation) or the MGCL that is or could become applicable to the Purchaser as a result of the Purchaser and the Corporation fulfilling their obligations or exercising their rights under the Transaction Documents, including the Corporation’s issuance of the Securities and the Purchaser’s ownership of the Securities and the Corporation’s issuance of Common Stock upon exercise of the Series A Warrants and the Purchaser’s ownership of such Common Stock. To the extent that any acquisition of Capital Stock by the Purchaser pursuant to this Agreement would constitute an acquisition of control shares, such acquisition has been exempted from Title 3, Subtitle 7 of the MGCL.

3.21 Matters Relating to Uncontributed Portfolio Entities and Uncontributed Portfolio Properties.

(a) Incorporation of Representations and Warranties in Article V of Master Agreement. The Corporation hereby makes to the Purchaser, as of the date hereof, each of the representations and warranties set forth in Article V of the Master Agreement, to the extent that they pertain to a Uncontributed Portfolio Entity or Uncontributed Portfolio Property, all of which are hereby incorporated by reference (together with (i) any definitions therein necessary to give effect to such representations and warranties and (ii) any disclosure schedules thereto modifying or referenced by such representations and warranties), mutatis mutandis, including to reflect that documents stated therein to have been furnished or made available to any of the Corporation, ELRH and their respective Affiliates shall have been furnished or made available to the Purchasers; provided that any reference to any “Portfolio Material Adverse Effect” in any such representations and warranties shall be deemed to include also any matter described in clause (ii) of the definition of “Material Adverse Effect” herein. For the avoidance of doubt, the Corporation hereby makes to the Purchaser, for purposes of this Agreement, those same representations and warranties, verbatim, in place of ELRM.

(b) Insurance. The Contributed Entities and their respective Subsidiaries carry or are entitled to the benefits of insurance with financially sound and reputable insurers, in such amounts and covering such risks as are generally maintained by companies of established reputation engaged in the business of ownership of multifamily residential properties, and all such insurance is in full force and effect. The Corporation has no reason to believe that any of the Contributed Entities and their respective Subsidiaries will not be able to (a) renew its existing insurance coverage as and when such policies expire or (b) obtain comparable coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost that would not reasonably be expected to result in a Material Adverse Effect. Since January 1, 2011, none of the Contributed Entities and their respective Subsidiaries has been denied any material insurance coverage that it has sought or for which it has applied.

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(c) Other Third Party Approvals and Consents. Except as set forth on Schedule 3.21(c), no consent, approval, waiver or authorization of, or registration, declaration, or filing with, or notice to, any Person (including any consent, approval, waiver, or authorization in respect of any contract or permit) is required to be obtained or made by or in respect of ELRH, Elco Landmark Residential Management LLC or any Affiliate of either of them in connection with the execution and delivery of any of the Transaction Documents, the performance of any of them of their respective obligations thereunder or the consummation of the transaction contemplated thereby, other than (i) those set forth in the related disclosure schedules incorporated by reference herein pursuant to Section 3.21(a), (ii) any Lender Approval or Refinancing and (iii) those made or obtained prior to the Closing.

(d) Environmental Matters. Except as would not, singly or in the aggregate, result in a Material Adverse Effect, (A) no owner of any Uncontributed Portfolio Property is in violation of any federal, state, local or foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent, decree or judgment, relating to pollution or protection of human health, the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products, asbestos-containing materials or mold (collectively, “Hazardous Materials”) or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (each, an “Environmental Law” and, collectively, “Environmental Laws”), (B) each owner of each Uncontributed Portfolio Property has all permits, authorizations and approvals required under any applicable Environmental Laws and are each in compliance with their requirements, (C) there are no pending or threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigation or proceedings relating to any Environmental Law against any Uncontributed Portfolio Entity or any owner of a Uncontributed Portfolio Property and (D) there are no events or circumstances that would reasonably be expected to form the basis of an order for clean-up or remediation, or an action, suit or proceeding by any private party or governmental body or agency, against or affecting any Uncontributed Portfolio Entity or owner or a Uncontributed Portfolio Property relating to Hazardous Materials or any Environmental Laws.

(e) FF&E. There are no items owned or leased by a third party and used at any Uncontributed Portfolio Property by or on behalf of the owner of such Uncontributed Portfolio Property in connection with the ownership, operation or maintenance of such Uncontributed Portfolio Property that would otherwise constitute FF&E (as defined in the Master Agreement on the date hereof without giving effect to any amendment, modification or waiver thereof), other than (i) any leased or licensed item as set forth in the related disclosure schedules incorporated by reference herein pursuant to Section 3.21(a), and (ii) any other item that is not material to the ownership, operation or maintenance of such Uncontributed Portfolio Property.

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(f) Contracts.

(i) No event has occurred that has not been waived that, with notice or lapse of time or both, would result in a material default by an owner of a Uncontributed Portfolio Property of, or give rise to any Lien or right of termination, prepayment or acceleration against any owner of a Uncontributed Portfolio Property under, any material Contract.

(ii) The material Contracts with respect to each Uncontributed Portfolio Property to be contributed by ELRH or any Affiliate thereof are in full force and effect, without material default by ELRH, Elco Landmark Residential Management LLC or any of their respective Affiliates that is a party thereto and, to the Corporation’s knowledge, without material default by any other party thereto.

(iii) The material Contracts with respect to each Uncontributed Portfolio Property to be contributed by DeBartolo or any Affiliate thereof are in full force and effect, without material default by DeBartolo or any Affiliate thereof that is a party thereto and, to the Corporation’s knowledge, without material default by any other party thereto.

3.22 Certain Fees. Except for any fee payable to the Purchaser pursuant to this Agreement and except as set forth in Schedule 3.22, no brokerage or finder’s fees or commissions are or will be payable by the Corporation or any of its Subsidiaries to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated by this Agreement or any of the Transaction Documents (including, without limitation, the exercise of the Series A Warrants). The Purchaser shall have no obligation with respect to any fees or with respect to any claims (other than such fees or commissions owed by the Purchaser pursuant to agreements made by the Purchaser which fees or commissions shall be the sole responsibility of the Purchaser) made by or on behalf of the Corporation or any of its Subsidiaries for fees of a type contemplated in this Section 3.22 that may be due in connection with the transactions contemplated by this Agreement or any of the Transaction Documents (including, without limitation, the exercise of the Series A Warrants). The Corporation shall indemnify and hold harmless the Purchaser, its employees, officers, directors, agents, and partners, and its Affiliates, from and against all claims, losses, damages, costs (including the costs of preparation and attorney’s fees) and expenses, as such fees and expenses are incurred, that are suffered in respect of (i) any claimed or existing fees or commissions of the type contemplated by this Section 3.22 for which the Corporation or any of its Subsidiaries is responsible, other than those disclosed above, and (ii) any failure of the Corporation or any of its Subsidiaries to timely pay those fees and commissions disclosed above.

3.23 SEC Reports; Financial Statements. The Corporation has filed with or furnished to the SEC all SEC Reports. The Corporation has delivered or made available to the Purchaser all SEC Reports to the extent the same are not publicly available through the SEC’s EDGAR website. As of their respective filing dates, the SEC Reports complied in all material respects with the requirements of the Securities Act or Exchange Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder and other federal, state and local laws, rules

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and regulations applicable to the SEC Reports, and none of the SEC Reports (including any and all financial statements included therein) as of such dates contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.

The financial statements included in the SEC Reports, together with the related schedules and notes, including without limitation the audited financial statements included in the Annual Report, and the unaudited interim financial statements included in the Corporation’s Quarterly Report on Form 10-Q for the three month period ended September 30, 2012 (the “Quarterly Report”), are accurate in all material respects and present fairly the financial position of ATA and its consolidated Subsidiaries, at the dates indicated; said financial statements have been prepared in conformity GAAP applied on a consistent basis throughout the periods involved. The supporting schedules, if any, present fairly in accordance with GAAP the information required to be stated therein.

3.24 No Material Adverse Change in Business. Since December 31, 2011, (A) there has been no material adverse change in the condition, financial or otherwise, or in the earnings, business affairs, business prospects, management, assets or properties of the Corporation and/or its Subsidiaries considered as one enterprise, whether or not arising in the Ordinary Course, (B) except for the transactions contemplated by the Master Agreement, there have been no transactions entered into by the Corporation or any Subsidiary thereof, other than those in the Ordinary Course, which are material with respect to the Corporation and each Subsidiary thereof considered as one enterprise, and (C) there has been no dividend or distribution of any kind declared, paid or made by the Corporation on any class of its shares of capital stock, other than in the Ordinary Course and dividends declared and paid on the Preferred Stock in accordance with the terms thereof.

3.25 Accuracy of Descriptions.

The descriptions in the SEC Reports of affiliate transactions, contracts required to be described therein and other legal documents are true and correct in all material respects, and there are no affiliate transactions, contracts or other documents of a character required to be described in the SEC Reports or to be filed as exhibits to the SEC Reports which are not described or filed as required. All agreements between the Corporation or any Subsidiary thereof, on the one hand, and any other party expressly referenced in the SEC Reports are legal, valid and binding obligations of the Corporation or one or more of its Subsidiaries, enforceable against the Corporation or its Subsidiaries in accordance with their respective terms, except to the extent that enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general equitable principles.

3.26 Possession of Intellectual Property.

The Corporation and each Subsidiary thereof owns or possesses, or can acquire on reasonable terms, adequate patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential

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information, systems or procedures), trademarks, service marks, trade names or other intellectual property (collectively, “Intellectual Property”) necessary to conduct its business as described in the Specified SEC Reports, and neither the Corporation nor any of its Subsidiaries has received any notice or is otherwise aware of any infringement of or conflict with asserted rights of others with respect to any Intellectual Property or of any facts or circumstances which would render any Intellectual Property invalid or inadequate to protect the interest of the Corporation or any of its Subsidiaries therein, and which infringement or conflict (if the subject of any unfavorable decision, ruling or finding) or invalidity or inadequacy, singly or in the aggregate, would result in a Material Adverse Effect.

3.27 Possession of Licenses and Permits.

The Corporation and its Subsidiaries possess such permits, licenses, approvals, consents and other authorizations issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct their business as described in the Specified SEC Reports (collectively, “Governmental Licenses”), except where the failure so to possess would not, singly or in the aggregate, result in a Material Adverse Effect; the Corporation and its Subsidiaries are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in a Material Adverse Effect; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in a Material Adverse Effect; and neither the Corporation nor any of its Subsidiaries has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect.

3.28 Title to Property.

The Corporation and its Subsidiaries have good and marketable title in fee simple to all real property owned by the Corporation and its Subsidiaries and good title to all other properties owned by them, in each case, free and clear of all mortgages, pledges, liens, security interests, claims, restrictions or encumbrances of any kind except (a) first mortgages on the particular real properties and (b) such as do not, singly or in the aggregate, materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Corporation or any of its Subsidiaries; and all of the leases and subleases material to the business of the Corporation and its Subsidiaries, considered as one enterprise, and under which the Corporation or any of its Subsidiaries holds properties described in the SEC Reports, are in full force and effect, and neither the Corporation nor any Subsidiary thereof has any notice of any material claim of any sort that has been asserted by anyone adverse to the rights of the Corporation or any Subsidiary thereof under any of the leases or subleases mentioned above, or affecting or questioning the rights of the Corporation or such Subsidiary to the continued possession of the leased or subleased premises under any such lease or sublease.

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3.29 Condition of Properties.

The Corporation, the Operating Partnership or their Subsidiaries have received and reviewed property condition reports on all real property owned by the Corporation, the Operating Partnership and their Subsidiaries. Except as otherwise set forth in the Specified SEC Reports, to the Corporation’s knowledge: (i) none of the real property owned by the Corporation, the Operating Partnership and their Subsidiaries is in violation of any applicable building code, zoning ordinance or other law or regulation, except where such violation of any applicable building code, zoning ordinance or other law or regulation would not, singly or in the aggregate, have a Material Adverse Effect; (ii) none of the Corporation, the Operating Partnership and their Subsidiaries has received written notice of any proposed material special assessment or any proposed change in any property tax, zoning or land use laws or availability of water affecting any real property owned by the Corporation, the Operating Partnership and their Subsidiaries that would, singly or in the aggregate, have a Material Adverse Effect; (iii) there does not exist any violation of any declaration of covenants, conditions and restrictions with respect to any real property owned by the Corporation, the Operating Partnership and their Subsidiaries that would, singly or in the aggregate, have a Material Adverse Effect, or any state of facts or circumstances or condition or event that could, with the giving of notice or passage of time, or both, constitute such a violation; and (iv) the developments or improvements comprising any portion of real property owned by the Corporation, the Operating Partnership and their Subsidiaries (the “Developments and Improvements”) are free of any physical, mechanical, structural, design or construction defects that would, singly or in the aggregate, have a Material Adverse Effect and the mechanical, electrical and utility systems servicing the Developments and Improvements (including, without limitation, all water, electric, sewer, plumbing, heating, ventilation, gas and air conditioning) are in good condition and proper working order, reasonable wear and tear and need for routine repair and maintenance excepted, and are free of defects, except for such failures and defects that would not, singly or in the aggregate, have a Material Adverse Effect.

3.30 Access and Utilities.

All of the real property owned by the Corporation, the Operating Partnership and their Subsidiaries has rights of access to public ways and is served by electric, water, sewer, sanitary sewer and storm drain facilities adequate to service real property owned by the Corporation, the Operating Partnership and their Subsidiaries for its use as described in the Specified SEC Reports.

3.31 No Condemnation.

No condemnation or other proceeding has been commenced that has not been completed, and, to the Corporation’s knowledge, no such proceeding is threatened, with respect to all or any portion of the real property owned by the Corporation, the Operating Partnership and their Subsidiaries or for the relocation away from any such property of any roadway providing access to such property or any portion thereof.

3.32 Environmental Laws.

Except as would not, singly or in the aggregate, result in a Material Adverse Effect, (A) neither the Corporation nor any of its Subsidiaries is in violation of any Environmental Law, (B) the Corporation and its Subsidiaries have all permits, authorizations and approvals required

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under any applicable Environmental Laws and are each in compliance with their requirements, (C) there are no pending or threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigation or proceedings relating to any Environmental Law against the Corporation or any of its Subsidiaries and (D) there are no events or circumstances that would reasonably be expected to form the basis of an order for clean-up or remediation, or an action, suit or proceeding by any private party or governmental body or agency, against or affecting the Corporation or any of its Subsidiaries relating to Hazardous Materials or any Environmental Laws.

3.33 Accounting Controls and Disclosure Controls.

The Corporation and each of its Subsidiaries maintains a system of internal accounting controls sufficient to provide reasonable assurances that (A) transactions are executed in accordance with management’s general or specific authorization; (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (C) access to assets is permitted only in accordance with management’s general or specific authorization; and (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Since the date of the Corporation’s formation, there has been (1) no material weakness in the Corporation’s internal control over financial reporting (whether or not remediated) and (2) no change in the Corporation’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Corporation’s internal control over financial reporting. The Corporation and each of its Subsidiaries maintain disclosure controls and procedures that are effective to perform the functions for which they were established and are designed to ensure that information required to be disclosed by the Corporation in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the SEC’s rules and forms, and is accumulated and communicated to the Corporation’s management, including its principal executive officer or officers and principal financial officer or officers, as appropriate, to allow timely decisions regarding disclosure.

3.34 Tax Returns and Payment of Taxes.

All United States federal income tax returns of the Corporation and its Subsidiaries required by law to be filed have been filed and all taxes shown by such returns or otherwise assessed, which are due and payable, have been paid, except assessments against which appeals have been or will be promptly taken in good faith and as to which adequate reserves have been provided and will be maintained. The Corporation and its Subsidiaries have filed all other material tax returns that are required to have been filed by them pursuant to applicable foreign, state, local or other law and has paid all taxes due pursuant to such returns or pursuant to any assessment (including all real estate taxes) received by the Corporation and its Subsidiaries, except for such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and will be maintained and except for taxes the nonpayment of which would not result in a Material Adverse Effect. All such returns are true, correct and complete in all material respects. The charges, accruals and reserves on the books of the Corporation in respect of any income and tax liability for any years not finally determined are adequate to meet any assessments or re-assessments for additional income tax for any years not

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finally determined. The Corporation has not engaged in any transaction that could affect its income Tax liability for any taxable year not closed by the statute of limitations which is a “listed transaction” within the meaning of Treasury Regulation section 301.6011-4 (irrespective of the effective date).

3.35 Insurance.

The Corporation and its Subsidiaries carry or are entitled to the benefits of insurance, with financially sound and reputable insurers, in such amounts and covering such risks as is generally maintained by companies of established repute engaged in the same or similar business, and all such insurance is in full force and effect. The Corporation has no reason to believe that it or any Subsidiary thereof will not be able (A) to renew its existing insurance coverage as and when such policies expire or (B) to obtain comparable coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost that would not result in a Material Adverse Effect. Neither the Corporation nor any Subsidiary thereof has been denied any insurance coverage which it has sought or for which it has applied.

3.36 REIT Qualification.

Commencing with the Corporation’s taxable year ending December 31, 2006, the Corporation has been organized and has operated, and will continue to be organized and operated, in a manner so as to qualify as a REIT under Sections 856 through 860 of the Code. The proposed method of operation of the Corporation as described in the Specified SEC Reports will enable the Corporation to continue to meet the requirements for qualification and taxation as a REIT under the Code for its taxable years ending December 31, 2011 and subsequent taxable years.

3.37 ERISA.

The assets of the Corporation do not constitute “plan assets” under the Employee Retirement Income Security Act of 1974, as amended.

3.38 Absence of Labor Dispute.

(A) No labor dispute with the employees of the Corporation, the Operating Partnership or any Subsidiary thereof exists or, to the knowledge of the Corporation, is imminent, and (B) the Corporation is not aware of any existing or imminent labor disturbance by the employees of any of its, the Operating Partnership’s or any of their Subsidiaries’ principal suppliers, manufacturers, customers or contractors, which, in the case of (A) or (B), would result in a Material Adverse Effect.

3.39 Foreign Corrupt Practices Act.

Neither the Corporation nor, to the knowledge of the Corporation, any director, officer, agent, employee, Affiliate or other person acting on behalf of the Corporation or any of its Subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by any of such persons of the FCPA, including, without limitation, making use of the

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mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA, and the Corporation and, to the knowledge of the Corporation, its Affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.

3.40 Money Laundering Laws.

The operations of the Corporation and its Subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Corporation or any of its Subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Corporation, threatened.

3.41 OFAC.

Neither the Corporation nor, to the knowledge of the Corporation, any trustee, officer, agent, employee, Affiliate or person acting on behalf of the Corporation or any of its Subsidiaries is currently subject to any U.S. sanctions administered by OFAC; and the Corporation will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.

3.42 August Transaction Agreements.

Each of the August Transaction Agreements is in full force and effect and has not been terminated, amended, modified or waived. The Corporation has complied with and is not in breach of, and to the knowledge of the Corporation each other party has complied with and is not in breach of, each of the August Transaction Agreements. Full Contribution (as defined in the Master Agreement), and Adjusted Full Contribution (as defined in the August SPA) with respect to each of the Purchaser and DeBartolo, has occurred. The Corporation has complied with, and is not in breach of, the provisions of the August SPA and the Preferred Stock (including the restrictions contained in Sections 8(c) of the Series A Preferred Stock Articles Supplementary and the Series B Preferred Stock Articles Supplementary.

3.43 Acknowledgment Regarding Purchaser’s Purchase of Securities. The Corporation acknowledges and agrees that the Purchaser is acting solely in the capacity of an arm’s length purchaser with respect to this Agreement and the transactions contemplated hereby. The Corporation further acknowledges that the Purchaser is not acting as a financial advisor or fiduciary of the Corporation (or in any similar capacity) with respect to this Agreement and any other Transaction Documents to which the Purchaser is or will be a party and the transactions contemplated hereby and thereby and any advice given by the Purchaser or any of its

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representatives or agents in connection with this Agreement and the transactions contemplated hereby is merely incidental to the Purchaser’s purchase of the Securities. The Corporation further represents to the Purchaser that the Corporation’s decision to enter into this Agreement and each of the other Transaction Documents to which the Corporation is a party has been based solely on the independent evaluation of the Corporation and its representatives. The Corporation further acknowledges that the Purchaser has not made any promises or commitments other than as set forth in this Agreement, including any promises or commitments for any additional investment by the Purchaser in the Corporation, except to the extent that the Purchaser may be party to, and as provided in, any of the Transaction Documents or any other agreement executed and delivered in connection therewith.

3.44 Original Issue Date.

The Corporation acknowledges that the Original Issue Date for purposes of the Series A Preferred Articles Supplementary was August 3, 2012 and the Dividend Deferral Period provided for under the Series A Preferred Articles Supplementary ended on November 2, 2012. For the avoidance of doubt, the Corporation further acknowledges that there shall be no deferral of any dividends payable in respect of the Series A Preferred Shares issued by the Corporation on Closing pursuant to this Agreement.

ARTICLE IV.

Representations and Warranties of the Purchaser

The Purchaser hereby makes the following representations and warranties to the Corporation:

4.1 Organization. The Purchaser is duly formed, validly existing, and in good standing under the Laws of its jurisdiction of formation.

4.2 Authorization. The Purchaser has the requisite limited partnership power to execute and deliver this Agreement and each other Transaction Document to be executed by it in connection with the consummation of the transactions contemplated hereby (the “Purchaser Documents”) and to perform its obligations hereunder and thereunder. The execution and delivery by the Purchaser of this Agreement and each Purchaser Document and the performance by it of its obligations hereunder and thereunder have been (or at the time of execution will be) duly authorized by all necessary limited partnership, limited liability company or equivalent action on the part of the Purchaser. This Agreement has been (and each Purchaser Document applicable to the Purchaser will be) duly executed and delivered by the Purchaser and, assuming the due execution and delivery of this Agreement and each Purchaser Document by the other party or parties hereto or thereto, constitutes a valid and binding obligation of the Purchaser enforceable against the Purchaser in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium, or other similar Laws affecting the enforcement of creditors’ rights in general and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).

4.3 Consents and Approvals. No consent, approval, waiver, order, or authorization of, or registration, declaration, or filing with, or notice to, any Person or Governmental Entity is

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required to be obtained or made by or in respect of the Purchaser in connection with the execution and delivery of this Agreement or any Purchaser Document by the Purchaser, the performance by the Purchaser of its obligations hereunder and thereunder, or the consummation of the transactions contemplated hereby or thereby.

4.4 No Conflicts. The execution and delivery of this Agreement does not (and each Purchaser Document will not), and neither the performance by the Purchaser of its obligations hereunder and thereunder, nor the consummation of the transactions contemplated hereby and thereby, will (i) conflict with the Purchaser’s Organizational Documents, (ii) conflict with, result in any violation of, constitute a default under, or give rise to a right of termination, cancellation, or acceleration of, or any obligation or to loss of a benefit under, any contract to which the Purchaser is a party or by which any of its assets or properties may be bound or (iii) violate any Order of any Governmental Entity or Law applicable to the Purchaser.

4.5 Brokers’ Fees. Neither the Purchaser nor any Person acting on the Purchaser’s behalf has agreed to pay any commission, finder’s or broker’s fee, or similar payment in connection with the transactions contemplated by this Agreement or any matter related hereto to any Person for which any of the Corporation and its Subsidiaries will be liable.

4.6 Securities Law Matters. The Purchaser is acquiring the Securities for investment for its own account, and not with a view to, or for sale in connection with, any distribution thereof. The Purchaser is an “accredited investor” as defined in Rule 501(a) of Regulation D under the Securities Act and not a registered broker-dealer under Section 15 of the Exchange Act. The Purchaser understands and acknowledges that none of the Securities or the Common Stock underlying the Series A Warrants has been registered under the Securities Act, or the securities Laws of any state or foreign jurisdiction and, unless so registered, may not be offered, sold, transferred, or otherwise disposed of except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and any applicable securities Laws of any state or foreign jurisdiction. The Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Securities, and has so evaluated the merits and risks of such investment. The Purchaser is able to bear the economic risk of an investment in the Securities and, at the present time, is able to afford a complete loss of such investment.

4.7 Patriot Act.

(a) Neither the Purchaser nor, to the Purchaser’s knowledge, any of its Affiliates, is in violation of Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001 and relating to Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (the “Executive Order”) and/or, to the Purchaser’s knowledge, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (the “Patriot Act”).

(b) Neither the Purchaser nor, to the Purchaser’s knowledge, any of its Affiliates, is a “Prohibited Person” which is defined as follows:

(i) a person or entity that is listed in the Annex to, or is otherwise subject to the provisions of, the Executive Order;

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(ii) a person or entity owned or controlled by, or acting for or on behalf of, any person or entity that is listed in the Annex to, or is otherwise subject to the provisions of, the Executive Order;

(iii) a person or entity with whom the Corporation or its successor or assignee is prohibited from dealing or otherwise engaging in any transaction by the Executive Order or the Patriot Act;

(iv) a person or entity who commits, threatens or conspires to commit or supports “terrorism” as defined in the Executive Order;

(v) a person or entity that is named as a “specially designated national and blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control at its official website, http://www.treas.gov/ofac/tllsdn.pdf, or at any replacement website or other replacement official publication of such list; and

(vi) a person or entity who is affiliated with a person or entity listed above.

(c) Neither the Purchaser nor, to the Purchaser’s knowledge, any of its Affiliates, has: (i) conducted any business or engaged in any transaction or dealing with any Prohibited Person, including the making or receiving any contribution of funds, goods or services to or for the benefit of any Prohibited Person, (ii) dealt in or otherwise engaged in any transaction relating to, any property or interests in property blocked pursuant to the Executive Order; or (iii) engaged in or conspired to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in the Executive Order or the Patriot Act.

4.8 Special Representation. The Purchaser hereby represents and warrants to the Corporation that it is treated as a “foreign government” under Treasury Regulation Section 1.892-2T (and any successor provision thereto), and that it is not an entity described in section 892(a)(2)(B) of the Code.

4.9 No Other Representations or Warranties. The Corporation acknowledges and agrees that the Purchaser does not make and has not made any representations or warranties herein other than those specifically set forth in this Article IV.

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ARTICLE V.

[Intentionally Omitted]

ARTICLE VI.

Conditions Precedent to Closing

6.1 Conditions Precedent to the Corporation’s Obligations. Subject to Section 2.3, the obligation of the Corporation to consummate the sale of Securities on the Closing Date is subject to the satisfaction or waiver by the Corporation on the Closing Date of the following conditions:

(a) Accuracy of Representations and Warranties. Each of the representations and warranties of the Purchaser contained in Article IV shall be true and correct on and as of the Closing Date with the same force and effect as though the same had been made on and as of the Closing Date.

(b) Performance of Covenants. The Purchaser shall have performed and complied with the covenants and provisions of this Agreement required to be performed or complied with by it on the Closing Date.

(c) Closing Deliveries. The Purchaser shall have delivered to the Corporation the items set forth in Section 8.2 required to be delivered by the Purchasers on or before the Closing Date.

(d) Ancillary Agreements. The Registration Rights Agreement shall have been executed and delivered by the Purchaser.

(e) No Order. No Governmental Entity with jurisdiction over such matters shall have enacted, issued, promulgated, enforced or entered any Law or Order (whether temporary, preliminary or permanent) which is then in effect and has the effect of making the transactions contemplated hereby illegal or otherwise restricting, preventing or prohibiting consummation of the transactions contemplated hereby.

6.2 Conditions Precedent to the Purchaser’s Obligations. The obligation of the Purchaser to consummate the purchase of Securities on the Closing Date is subject to the satisfaction on the Closing Date of the following conditions (except to the extent waived in writing by the Purchaser):

(a) Accuracy of Representations and Warranties. Each of the representations and warranties of the Corporation contained herein shall be true and correct on and as of the Closing Date with the same force and effect as though the same had been made on and as of the Closing Date other than such representations and warranties that expressly speak as of an earlier date (which need only be true and correct as of such date).

(b) Performance of Covenants. The Corporation shall have performed and complied with all of the covenants and provisions of this Agreement required to be performed or complied with by it on the Closing Date.

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(c) Closing Deliveries. The Corporation shall have delivered to each Purchaser each item set forth in Section 8.1 required to be delivered by the Corporation on or before the Closing Date.

(d) Organizational Documents. The Articles Supplementary have been duly filed with, and accepted by, the Department.

(e) Ancillary Agreements. The Registration Rights Agreement shall have been executed and delivered by the Corporation.

(f) No Order. No Governmental Entity with jurisdiction over such matters shall have enacted, issued, promulgated, enforced or entered any Law or Order (whether temporary, preliminary or permanent) which is then in effect and has the effect of making the transactions contemplated hereby illegal or otherwise restricting, preventing or prohibiting consummation of the transactions contemplated hereby.

(g) No Material Adverse Effect. Since December 31, 2011, there shall not have occurred any event, circumstance, condition, fact, or other matter that has had or could reasonably be expected to have a Material Adverse Effect.

(h) Domestically Controlled REIT. The Corporation shall be qualified as a Domestically Controlled REIT.

(i) Consents and Waivers. All approvals, authorizations, consents, and waivers of any Person or Governmental Entity that are required in connection with the execution and delivery of this Agreement or any Transaction Document, the performance of the Corporation of its obligations hereunder or thereunder, and the consummation of the transactions contemplated hereby and thereby shall have been duly obtained and effective.

(j) Absence of Breach. No event shall have occurred that, with the giving of notice or the passage of time or both, would (i) constitute a default or breach by any party (other than the Purchaser and its Affiliates) of its covenants and agreements under the Transaction Documents, or (ii) allow the exercise of the Optional Redemption Right under (and as defined in) the Series A Preferred Articles Supplementary or the Series B Preferred Articles Supplementary.

ARTICLE VII.

[Intentionally Omitted]

ARTICLE VIII.

Closing Deliveries

8.1 Items to Be Delivered by the Corporation. At the Closing, the Corporation shall deliver to the Purchaser the following items, in form and substance reasonably satisfactory to the Purchaser:

(a) Preferred Stock Certificates. Validly issued stock certificates duly executed by the appropriate officers of the Corporation and representing the Series A Preferred Shares being issued to the Purchaser at the Closing.

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(b) Series A Warrant. The Series A Warrant being issued to the Purchaser at the Closing, duly executed by the Corporation.

(c) Purchase Fee. An amount equal to the aggregate sum of one percent (1%) of the Liquidation Preference (as defined in the Series A Preferred Articles Supplementary) of all of Series A Preferred Shares being issued to the Purchaser at the Closing.

(d) Expense Reimbursement. The amount to be reimbursed by the Corporation pursuant to Section 11.6(a).

(e) Certificate of Good Standing. A file-stamped copy, dated no later than three (3) Business Days prior to the Closing Date, certified by the Department and showing the Corporation to be validly existing and in good standing in the State of Maryland.

(f) Certified Copy of Series A Preferred Articles Supplementary. A file-stamped copy of the Series A Preferred Articles Supplementary and the Articles Supplementary, as certified by the Department.

(g) Officers’ Certificate. A certificate, dated as of the Closing Date, duly executed by the President and the Secretary of the Corporation certifying that (i) attached to such certificate are true and complete copies of (x) all Organizational Documents of the Corporation (including without limitation the Series A Preferred Articles Supplementary and the Articles Supplementary), together with any and all amendments thereto, and (y) all resolutions adopted by the Corporation’s Board of Directors authorizing the execution, delivery and performance by the Corporation of the Transaction Documents to which it is a party and including, without limitation, such elections and determinations, if any, as may be necessary to opt out of, or otherwise to render inapplicable, any applicable control share, business combination or other anti-takeover Laws, and (ii) that the same are in full force and effect and in accordance with all applicable Laws.

(h) Closing Certifications of the Corporation. A certificate duly executed by the President and the Secretary of the Corporation certifying that, as of the Closing Date, each of the conditions set forth in Sections 6.2(a), 6.2(b), 6.2(i) and 6.2(j) (solely with respect to the Corporation’s obligations thereunder) has been satisfied (except to the extent waived in writing by the Purchaser).

(i) Legal Opinions. An opinion of Goulston & Storrs P.C., counsel to the Corporation, dated the Closing Date, in substantially the form attached hereto as Exhibit C-1, and an opinion of Morris, Manning and Martin LLP, tax counsel to the Corporation, dated the Closing Date, in substantially the form attached hereto as Exhibit C-2.

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(j) Registration Rights Agreement. The Registration Rights Agreement, duly executed by the Corporation, in substantially the form attached hereto as Exhibit D (the “Registration Rights Agreement”).

(k) Ownership Limit Waiver. A duly executed REIT ownership limit waiver certificate in substantially the form attached hereto as Exhibit E (a “REIT Ownership Limit Waiver”).

(l) Other Documents. Such other documents relating to the transactions contemplated hereby as the Purchaser or its counsel may reasonably request.

8.2 Items to Be Delivered by the Purchaser. At the Closing, the Purchaser shall deliver to the Corporation the following:

(a) Purchase Price. The purchase price in cash for the Securities being purchased by the Purchaser at the Closing.

(b) Officer’s Certificates. A certificate, dated as of the Closing Date, duly executed by authorized officers of the Purchaser certifying that, as of the Closing Date, each of the conditions set forth in clauses (a) and (b) of Section 6.1 has been satisfied (except to the extent waived in writing by the Corporation).

(c) Registration Rights Agreement. The Registration Rights Agreement, duly executed by the Purchaser.

(d) Other Documents. Such other documents relating to the transactions contemplated hereby as the Corporation or its counsel may reasonably request.

ARTICLE IX.

Other Agreements of the Parties

9.1 All Reasonable Efforts; Further Assurances. Subject to the terms and conditions hereof, each of the parties hereto shall use all reasonable efforts to take, or cause to be taken, all action, and do, or cause to be done, as promptly as practicable, all things necessary, proper, or advisable under applicable Law to consummate and make effective as promptly as practicable the transactions contemplated hereby. At and from time to time after the Closing, at the request of any party hereto, the other parties shall execute and deliver such additional certificates, instruments, and other documents and take such other actions as such party may reasonably request in order to carry out the purposes of this Agreement.

9.2 Notification. The Corporation shall promptly notify the Purchaser in writing of any material adverse development causing a breach of any of its representations, warranties, covenants or agreements contained in this Agreement or in any of the other Transaction Documents, or that will make it or its Subsidiaries incapable of or materially less likely to be capable of performing any of its material obligations under any of the Transaction Documents. The provisions of this Section 9.2 shall terminate upon the redemption of all Series A Preferred Stock.

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9.3 Issuance of Preferred Stock. No Preferred Stock or any other Preferred Equity Securities shall be issued by the Corporation except in conformity with this Agreement. So long as the Purchaser or any of its Affiliates holds any Series A Preferred Stock, the Series A Preferred Stock shall be issued only to the Purchaser and/or its Affiliates (as directed by the Purchaser). The provisions of this Section 9.3 shall terminate upon the redemption of all Series A Preferred Stock.

9.4 Public Announcements. None of the parties may issue any press release, make any public filing with any Governmental Entity or make any other public announcement relating to this Agreement or the transactions contemplated hereby without the prior written approval of the Corporation and the Purchaser. The foregoing shall not apply to the extent necessary or advisable in order to satisfy a party’s or its Affiliate’s disclosure obligations or other obligations under applicable Law, as determined by such party, in which event such party shall first consult with and reasonably consider any comments or suggestions of the other parties with respect thereto.

9.5 Confidentiality. Subject to Section 9.4, each party hereto agrees that such party will hold, and will use all commercially reasonable efforts to cause its officers, directors, members, managers, partners, employees, accountants, counsel, consultants, advisors, financial sources, financial institutions, representatives and agents to hold, in confidence all confidential information and documents received from or on behalf of any other party hereto (including, without, limitation, any material nonpublic information received from or on behalf of the Corporation), except to the extent such information (i) was previously known on a non-confidential basis to the party receiving such information or documents (the “Receiving Party”), (ii) was in the public domain through no fault of the Receiving Party, (iii) was independently developed by the Receiving Party, (iv) was later developed by the Receiving Party from sources other than the disclosing party not known by the Receiving Party to be bound by any confidentiality obligation, or (v) is required to be disclosed by Law or by any Governmental Entity.

9.6 Title to Acquired Properties. With respect to (i) each Uncontributed Portfolio Property, (ii) each additional multi-family residential property, if any, acquired by the Corporation and its Subsidiaries after the Closing the acquisition cost of which is funded, in whole or in part, with proceeds from the issuance and sale of Securities at the Closing, and (iii) the property known as “Andros Isles Apartments” owned by one or more of DeBartolo and its Affiliates currently anticipated to be acquired by the Corporation and its Subsidiaries, the Corporation and its Subsidiaries (including as a Subsidiary, for purposes of this Section 9.6, any entity that would become a Subsidiary of the Corporation upon consummation of the contribution of the Uncontributed Portfolio Properties) shall acquire good and marketable title in fee simple to the real property with respect thereto, in each case, free and clear of all mortgages, pledges, liens, security interests, claims, restrictions or encumbrances of any kind except (a) mortgages on such real property (to the extent permitted under the Series A Preferred Articles Supplementary), (b) Permitted Encumbrances and (c) such as do not, individually or in the aggregate, materially affect the value of such real property and do not interfere with the use made and proposed to be made of such real property by the Corporation or any of its Subsidiaries. The provisions of this Section 9.6 shall terminate upon the redemption of all Series A Preferred Stock.

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9.7 Transfer Taxes. The Corporation shall pay all sales, use, transfer, stamp, conveyance, value added, or other similar taxes, duties, excises, or governmental charges imposed by any domestic or foreign taxing authority and all recording and filing fees, notarial fees, and other similar costs in connection with the issuance, sale or delivery to the Purchaser of the Series A Preferred Shares or Series A Warrants at the Closing pursuant to Article II, the issuance, sale or delivery of any shares of Common Stock upon exercise of the Series A Warrant to the holder thereof, or otherwise on account of this Agreement or the transactions contemplated hereby or thereby, and shall indemnify and save harmless the Purchaser without limitation as to time against any and all liabilities in respect thereof.

9.8 Transfer Restrictions.

(a) The Series A Preferred Shares may only be disposed of in accordance with the restrictions on transfer, if any, set forth in the Organizational Documents of the Corporation, subject to such waivers as may be granted from time to time to a holder thereof, including, without limitation, the waiver granted as of the Closing as contemplated by Section 8.1(k) and any waiver that may be granted hereafter pursuant to Section 9.8(e). The Series A Warrants may only be disposed of in accordance with the restrictions on transfer set forth therein. The Series A Warrants may not be detached from the Series A Preferred Shares with respect to which they are issued under this Agreement so long as such Series A Preferred Shares remain unredeemed and outstanding, as more fully set forth in the Series A Warrants.

(b) The Securities may only be disposed of pursuant to an effective registration statement under the Securities Act or pursuant to an available exemption from the registration requirements of the Securities Act, and in compliance with any applicable state securities laws. In connection with any transfer of Securities other than pursuant to an effective registration statement or to the Corporation or pursuant to the last sentence of Rule 144(b)(l)(i) under the Securities Act, except as otherwise set forth herein, the Corporation may require the transferor to provide to the Corporation an opinion of counsel selected by the transferor, the form and substance of which opinion shall be reasonably satisfactory to the Corporation, to the effect that such transfer does not require registration under the Securities Act. Notwithstanding the foregoing, the Corporation hereby agrees that no such legal opinion shall be required in the case of any transfer of Securities by the Purchaser to an Affiliate of the Purchaser, provided in each case that the transferee certifies to the Corporation that it is an “accredited investor” as defined in Rule 501(a) under the Securities Act. As a condition of any transfer of any Securities, any such transferee shall agree in writing to be bound by the terms of this Agreement (and any other applicable Purchaser Document) and shall have the rights of the Purchaser under this Agreement (and any other applicable Purchaser Document).

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(c) The Purchaser agrees to the imprinting on any certificate evidencing the Series A Preferred Shares, except as otherwise permitted by Section 9.8(d), of a restrictive legend in substantially the form as follows, together with any additional legend required by any applicable state securities laws:

THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS OR BLUE SKY LAWS.

(d) Certificates evidencing the Series A Preferred Shares shall not be required to contain the legend set forth in Section 9.8(c): (i) if a registration statement under the Securities Act covering the resale of such Series A Preferred Shares under the Securities Act is effective, (ii) following any sale of such Series A Preferred Shares in compliance with Rule 144, (iii) if such Series A Preferred Shares are eligible for sale pursuant to the last sentence of Rule 144(b)(l)(i) under the Securities Act, or (iv) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the Staff of the SEC). The Corporation shall cause its counsel to issue a legal opinion to the Corporation’s transfer agent in connection with any transfer occurring after the effective date of any registration statement referred to in clause (i) above. Following such effective date or at such earlier time as such legend is no longer required for certain Series A Preferred Shares, the Corporation will no later than three (3) Business Days following the delivery by the Purchaser to the Corporation or the Corporation’s transfer agent of a legended certificate representing such Series A Preferred Shares, deliver or cause to be delivered to the Purchaser a certificate representing such Series A Preferred Shares that is free from such legend. The Corporation may not make any notation on its records or give instructions to any transfer agent of the Corporation that enlarge the restrictions on transfer set forth in this Section 9.8.

(e) In the event of a proposed transfer of Series A Preferred Shares that, if consummated, would result in the intended transferee beneficially owning shares of capital stock of the Corporation in excess of the ownership limit established under the Charter for REIT qualification purposes, then, to the extent permitted by the Charter and subject to the other terms and conditions of this Section 9.8(e), the Corporation shall deliver a duly executed REIT Ownership Limit Waiver to such transferee effective upon such transfer. Any such intended transferee shall provide at least fifteen (15) calendar days written notice to the Corporation of such proposed transfer and request for a REIT Ownership Limit Waiver. The grant of any such REIT Ownership Limit Waiver shall be subject to a determination by the Board of Directors of the Corporation that such waiver would not adversely affect the Corporation’s ability to qualify as a REIT and shall also be subject to satisfaction of the conditions set forth in the immediately following sentences.

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As a condition to any such waiver, the proposed transferee shall represent to the Corporation, and shall furnish such reasonable evidence as the Board of Directors may request, that no person or entity described in Section 542(a)(2) of the Code, including the application of the provisions of Section 544 of the Code, as modified by Section 856(h)(1)(B) of the Code, owns more than the maximum ownership limit set forth in the Charter, as such may have been modified as provided therein. Any such waiver may be subject to automatic revocation in the event the foregoing representation ceases to be true, as a result of a direct or indirect transfer of an interest or otherwise. In addition to the above, as a condition to the granting of any such waiver, the Corporation may require an opinion of counsel or other evidence reasonably satisfactory to the Board of Directors of the Corporation in support of the grant of such waiver, in addition to such other customary conditions as the Board of Directors of the Corporation may impose.

9.9 Pre-emptive Rights

The Corporation and the Purchaser agree that the Pre-emptive Rights granted to the Purchaser pursuant to Section 9.9 of the August SPA shall, subject to the provisions of clause (II) of Section 9.9(f) of the August SPA, continue to be applicable until the redemption of all outstanding Series A Preferred Stock and Series B Preferred Stock.

9.10 No Impairment. So long as any Series A Preferred Stock is outstanding, the Corporation shall:

(a) comply with its obligations under the Series A Preferred Articles Supplementary and the Series B Preferred Articles Supplementary, and the Corporation shall not take any action or make any omission that, with notice or the passage of time or both, would constitute a violation of (i) Section 8(c) of the Series A Preferred Articles Supplementary or (ii) Section 8(c) of the Series B Preferred Articles Supplementary; and

(b) not take or permit any action, or cause or permit any of its Subsidiaries (including as a Subsidiary, for purposes of this Section 9.10(b), any entity that would become a Subsidiary of the Corporation upon consummation of the contribution of the Uncontributed Portfolio Properties) to take or permit any action that would cause the Corporation to be prohibited from making any payments or distributions required to be made pursuant to the terms of the Preferred Stock, including, without limitation, any action that would prohibit the Corporation from making distributions under the MGCL.

9.11 Director and Officer Insurance. So long as the Purchaser has a designee on the Board of Directors of the Corporation, the Corporation shall maintain directors’ and officers’ liability insurance providing coverage in such amounts and on such terms as is customary for a publicly traded company of similar size to the Corporation. Such insurance shall include coverage for all directors of the Corporation, including any director designated (individually or jointly) by the Purchaser. The Purchaser hereby acknowledges and agrees that the Corporation’s directors’ and officers’ liability insurance policy in effect as of the Closing Date, a copy of which has been furnished to the Purchaser, complies with this Section 9.11 as of the date hereof; provided that, upon the reasonable request of the Purchaser from time to time, to modify or increase the coverage of the Corporation’s directors’ and officers’ liability insurance policy that

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is then in effect in light of the circumstances existing at such time, then the Corporation shall make such modifications or increase to such directors’ and officers’ liability insurance policy (or, if applicable, purchase an additional directors’ and officers’ liability insurance policy) as may be required, if at all, to comply with this Section 9.11.

9.12 Access. In addition to any other rights provided by law or set forth herein, from and after the Closing Date, the Corporation shall, and shall cause each of its Subsidiaries to, give the Purchaser and its representatives access during reasonable business hours to (i) all properties, assets, books, contracts, commitments, reports and records relating to the Corporation and its Subsidiaries, and (ii) the management, accountants, lenders, customers and suppliers of the Corporation and its Subsidiaries; provided, however, in each case, that a party shall not be required to provide such access to any information or Persons if such party reasonably determines that access to such information or Persons would violate the attorney-client privilege between such party or any Affiliate thereof and its counsel that cannot be provided to the Purchaser in a manner that would avoid the violation of such attorney-client privilege. The provisions of this Section 9.12 shall terminate upon the redemption of all the Series Preferred Stock.

9.13 Amendments to Transaction Documents. So long as any share of Series A Preferred Stock are held by any of the Purchaser and its Affiliates, the Corporation shall not, and shall not permit any of its Subsidiaries to, enter into, become or remain subject to any agreement or instrument, except for the Transaction Documents, that would prohibit or require the consent of any Person to any amendment, modification or supplement to any of this Agreement, the Series A Warrant, the Series A Preferred Articles Supplementary, the Series B Preferred Articles Supplementary or the Registration Rights Agreement. For avoidance of doubt, any and all approval requirements of (i) shareholders of the Corporation or partners of the Operating Partnership under their respective Organizational Documents or under applicable Laws or (ii) lenders to the Corporation or any of its Subsidiaries or with respect to any of their respective properties (including for this purpose any Uncontributed Portfolio Properties) shall be disregarded for purposes of this Section 9.13.

9.14 Integration. The Corporation shall not, and shall use its best efforts to ensure that no Affiliate of the Corporation shall, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Series A Preferred Shares and the Series A Warrants hereunder in a manner that would require the registration under the Securities Act of the sale of any Series A Preferred Shares or Series A Warrants hereunder to the Purchaser.

9.15 Appraisal. So long as any shares of Series A Preferred Stock are held by any of the Purchaser and its Affiliates, the Corporation shall cause an appraisal of each property owned by the Corporation and its Subsidiaries to be undertaken on December 1 of each calendar year. All appraisals required under this Section 9.15 shall be performed by a nationally recognized independent real property appraisal firm having specialized knowledge and expertise in the appraisal of multi-family residential properties; provided, however, any appraiser selected by the Corporation to perform appraisals required under this Section 9.15 shall be rotated at least once every three years (with the first such three-year period commencing on the Closing Date). The Corporation shall cause all such appraisals to be completed and distributed to the Purchaser not

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later than the January 20th immediately following the date of such respective update or appraisal. The cost of any annual appraisal and update obtained pursuant to this Section 9.15 shall be borne by the Corporation. The provisions of this Section 9.15 shall terminate upon the redemption of all of the Series A Preferred Stock.

9.16 Use of Proceeds. The Corporation shall use the proceeds received from the issuance and sale of the Securities at the Closing primarily for acquisitions of capital assets and leases, retirement of Indebtedness and payment of costs and expense relating to the IPO. Provided that the proceeds are used primarily for the above mentioned purposes, the remaining proceeds may be used for general corporate purposes. Notwithstanding the foregoing, no portion of the proceeds received from the issuance and sale of the Securities at the Closing may be used for the payment of distributions or dividends to the Corporation’s stockholders or to limited partners of the Operating Partnership. The proceeds received from the issuance and sale of the Securities at the Closing, shall be deposited on the Closing Date in one or more segregated bank accounts of the Corporation (collectively, the “Proceeds Accounts”). No withdrawals shall be permitted from the Proceeds Accounts without the written consent of OPTrust (so long as any of OPTrust and its Affiliates hold any Series A Preferred Stock), other than for use in accordance with this Section 9.16. For so long as the Purchaser or any of its Affiliates holds any Series A Preferred Stock, with respect to each calendar month in which any such withdrawals are made, the Corporation shall furnish a written report the Purchaser within thirty (30) days after the end of such month specifying in reasonable detail the dates and amounts of such withdrawals and the purposes therefor.

9.17 Other Reporting Obligations. (a) During any period in which the Corporation is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Corporation shall deliver to the Purchaser by mail and without cost to the Purchaser the following reports in the form that the Corporation would have been required to file with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act as if the Corporation were subject thereto as well as the other documents listed herein:

(i) as soon as practicable, but in any event within the time frame prescribed for the filing of an annual report pursuant to the Exchange Act after the end of each fiscal year, an annual report on Form 10-K, and to the extent not included in such Form 10-K, an income statement of the Corporation for such fiscal year, a balance sheet of the Corporation and statement of stockholders’ equity as of the end of such fiscal year, and a statement of cash flows for such fiscal year, such year-end financial reports to be prepared on a consolidated basis, in reasonable detail, prepared in accordance with GAAP, and audited and certified by independent public accountants of nationally recognized standing selected by the Corporation; and

(ii) as soon as practicable, but in any event within the time frame prescribed for the filing of a quarterly report pursuant to the Exchange Act for each fiscal quarter of each fiscal year of the Corporation, a quarterly report on Form 10-K, and to the extent not included in such Form 10-Q, an unaudited income statement and statement of cash flows for such fiscal quarter and an unaudited balance sheet and a statement of stockholder’s equity as of the end of such fiscal quarter prepared on a consolidated basis.

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(b) The Corporation at its sole cost and expense shall furnish to the Purchaser (in each case, for the avoidance of doubt, subject to the provisions of Section 9.5):

(i) as soon as practicable, but in any event at least 30 days prior to the end of each fiscal year, a budget for the next fiscal year, prepared on a monthly basis, including income statements, balance sheets, and statements of cash flows for such months, and, as soon as prepared, any other budgets or revised budgets prepared by the Corporation;

(ii) as soon as practicable, but in any event no later than 60 days after the end of each calendar year, annual fair value statements, with a December 31 year-end, prepared in accordance with International Financial Reporting Standards (“IFRS”); and

(iii) as soon as practicable, any additional reports as may be reasonably requested by the Purchaser from time to time for its own internal purposes.

(c) Audits. The Corporation shall be audited annually by a nationally recognized accounting firm (which firm is initially anticipated to be Ernst & Young).

(d) Termination. The provisions of this Section 9.17 shall terminate upon the redemption of all the Series A Preferred Stock.

9.18 Affiliate Transactions. So long as any shares of Series A Preferred Stock are held by any of the Purchaser and its Affiliates, no Related Person shall: (i) owe any amount to any of the Corporation and its Subsidiaries, nor shall any of the Corporation and its Subsidiaries owe any amount to, nor shall any of the Corporation and its Subsidiaries commit to make any loan or extend or guarantee credit to or for the benefit of, any Related Person; (ii) have any direct or indirect ownership interest in, or be an officer, director, employee, consultant or agent of, any Person that has a business relationship with, or enters into any transaction with, any of the Corporation and its Subsidiaries; or (iii) own, directly or indirectly, in whole or in part, any real property, leasehold interests or other property, or any permits, the use of which is necessary for the conduct of the business of any of the Corporation and its Subsidiaries as currently conducted and as proposed to be conducted; provided, however, that the provisions of this Section 9.18 shall not apply to (I) the transactions contemplated hereby and by the other Transaction Documents, (II) any Qualified Contribution Transaction (as such term is defined in the Series A Preferred Articles Supplementary), and (III) any other transaction or arrangement that is approved in writing by the Purchaser (which approval will not be unreasonably conditioned, delayed, or withheld, provided that such transaction or arrangement is made on terms and conditions that are no less favorable to the Corporation and its Subsidiaries than such terms and conditions as may be attained in a transaction not involving a Related Person). The provisions of this Section 9.18 are in addition to, and not in lieu of, any other applicable restrictions that may be set forth in the Organizational Documents of the Corporation (including the Charter) and elsewhere in the Transaction Documents (including the Series A Preferred Articles Supplementary) or as may be provided by the MGCL or other applicable Laws. The provisions of this Section 9.18 shall terminate upon the redemption of the Series A Preferred Stock.

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9.19 Investment Company Act. At any time while any Series A Preferred Stock is outstanding, the Corporation shall make all reasonable efforts to conduct its affairs, and to cause its Subsidiaries to conduct their affairs, in such a manner as to ensure that neither the Corporation nor its Subsidiaries will be or become an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended.

9.20 Amendment to Series A Preferred Articles Supplementary.

At the first meeting of the stockholders of the Corporation following the date of this Agreement, the Corporation shall propose and recommend to the stockholders of the Corportion that the Series A Preferred Articles Supplementary and Series B Preferred Articles Supplementary be amended, in form acceptable to the Purchaser, to:

(i) replace the current definition of “IPO” in each of the Series A Preferred Articles Supplementary and Series B Preferred Articles Supplementary in its entierty with the following: ““IPO” shall mean the consummation of the initial closing (without regard for any closing of any associated “green shoe”) of the first underwritten public offering of shares of Common Stock registered under the United States Securities Act of 1933, as amended, and/or applicable securities legislation in Canada that occurs after the Original Issue Date and, in conjunction with which, such shares of Common Stock are listed for trading on the NYSE, the Nasdaq Stock Market and/or the Toronto Stock Exchange.”;

(ii) divest, to the greatest extent permitted by law, the holders of the common stock of Corporation of any rights to vote in respect of any amendment to the Series A Preferred Articles Supplementary or Series B Preferred Articles Supplementary, as applicable, and that (x) only a majority vote of the holders of all Series A Preferred Stock, voting as a class, is required to amend the Series A Preferred Articles Supplementary, and (y) only a majority vote of the holders of all Series B Preferred Stock, voting as a class, is required to amend the Series B Preferred Articles Supplementary, in each case without derogating from the rights provided to the holders of the Series A Preferred Stock and the holders of the Series B Preferred Stock pursuant to section 8(c)(iv) of the Series A Preferred Articles Supplementary and section 8(c)(iv) of the Series B Preferred Articles Supplementary, respectively;

(iii) make any additional amendments as may be reasonably required in order to give effect to the foregoing amendments set forth in this Section 9.20 and the transactions contemplated by this Agreement.

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ARTICLE X.

Survival and Indemnification

10.1 Survival of Representations, Warranties, and Covenants.

(a) The representations and warranties of the parties contained in this Agreement shall survive until the date upon which all of the shares of the Series A Preferred Stock have been redeemed and shall be unaffected by any investigation heretofore or hereafter made by any party in favor of which any such representation and warranty has been made; except that the representations and warranties contained in Section 3.7 (Authorization of Preferred Stock), Section 3.17 (Private Placement), Section 3.19 (Waiver of Ownership Limits), Section 3.22 (Certain Fees) and Section 3.43 (Acknowledgment Regarding Purchaser’s Purchase of Securities) shall survive indefinitely. Any claim for indemnification in respect of any representation or warranty that is not asserted by notice given as herein provided relating thereto prior to the expiration of the specified period of survival shall not be pursued and is hereby irrevocably waived after the expiration of such period of survival. Any claim for a Loss in respect of such a breach asserted within such period of survival as herein provided will be timely made for purposes hereof.

(b) Unless a specified period is set forth in this Agreement (in which event such specified period will control), the covenants in this Agreement will survive and remain in effect indefinitely.

10.2 Indemnification.

(a) From and after the Closing, the Corporation shall indemnify and hold harmless the Purchaser from and against any and all Losses incurred, arising out of or relating to:

(i) any breach by the Corporation of any of the representations, warranties or covenants made by the Corporation in this Agreement;

(ii) any dividend or other distributions of any nature declared or paid by the Corporation in respect of the Series A Preferred Stock, including any redemption or purchase thereof by the Corporation, that is claimed or alleged to have been made, or actually made, in violation of any applicable Laws;

(iii) any claim or Proceedings against the Corporation or the Purchaser in relation to this Agreement or any other Transaction Document or any of the transactions contemplated hereby or thereby commenced by (A) any Governmental Entity with jurisdiction over the Corporation or any of its Subsidiaries or (B) any stockholder, director, or officer of the Corporation (other than the Purchaser and the Purchaser’s respective Affiliates and their respective representatives), or any representative thereof, including, without limitation, any allegation or claim that the transactions contemplated hereby or thereby are invalid or illegal, except to the extent resulting from the bad faith or willful malfeasance of any of the Purchaser and the Purchaser’s Affiliates; and

(iv) any claim or Proceedings against the Purchaser commenced by any director, officer, employee or other representative of the Purchaser (a “Representative”) who, in his or her capacity as a Representative of the

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Purchaser, has been appointed as a director of the Corporation, and (A) as a result of, or in connection with such Representative’s position as a director of the Corporation, is or becomes subject to any claim or Proceedings (the “Originating Proceedings”), and (B) such Representative makes a claim or commences Proceedings against the Purchaser in respect of an indemnity claim or claim for loss resulting from the Originating Proceedings; provided, however, that the Corporation shall not be obligated to indemnify the Purchaser under this clause (iv) to the extent that the Corporation is prohibited under applicable law from indemnifying such Representative in respect of such Originating Proceedings.

(b) From and after the Closing, the Purchaser shall indemnify and hold harmless the Corporation from and against any and all Losses incurred, arising out of or relating to any breach by the Purchaser of any of the representations, warranties or covenants made by the Purchaser in this Agreement.

(c) Without limitation to Section 10.2(a), from and after the Closing and for so long as any Series A Preferred Stock is held by any of the Purchaser and its Affiliates, the Corporation shall indemnify and hold harmless each of the Purchaser and its Affiliates from and against any and all U.S. federal, state or local income or withholding tax incurred or suffered by such Indemnitee as a holder of Series A Preferred Stock with respect to any gain that is treated as recognized by such holder from a sale or exchange (or deemed sale or exchange) by any of the Corporation and its Subsidiaries under Code section 897(h)(1) of a “United States real property interest” as defined in Code section 897(c)(1) and that results from any distribution made by the Corporation.

(d) The conduct of any Proceedings for which indemnification is available under this Section 10.2 shall be governed by Section 10.3. The indemnification obligations of any Indemnitor under this Section 10.2 shall be the exclusive remedy of the Purchaser hereunder for breaches of the representations, warranties and covenants addressed thereby, other than for fraud and equitable remedies, and shall be binding upon and inure to the benefit of any successors, permitted assigns, heirs and personal representatives of the Purchaser.

10.3 Procedures for Third-Party Claims.

(a) If any Indemnitee receives notice of assertion or commencement of any Third-Party Claim against such Indemnitee in respect of which an Indemnitor may be obligated to provide indemnification under this Agreement, the Indemnitee shall give such Indemnitor reasonably prompt written notice thereof; provided, however, that no delay on the part of the Indemnitee in notifying any Indemnitor shall relieve the Indemnitor from any obligation hereunder unless (and then solely to the extent) the Indemnitor is actually prejudiced by such delay.

(b) Any Indemnitor will have the right to defend the Indemnitee against the Third-Party Claim with counsel of its choice reasonably satisfactory to the Indemnitee so long as (i) the Indemnitor notifies the Indemnitee in writing within ten (10) days after the Indemnitee has given notice of the Third-Party Claim that the Indemnitor will indemnify

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the Indemnitee from and against any such Losses, (ii) the Indemnitor provides the Indemnitee with evidence reasonably acceptable to the Indemnitee that the Indemnitor will have the financial resources to defend against the Third-Party Claim and fulfill its indemnification obligations hereunder, (iii) the Third-Party Claim involves only monetary damages and does not seek an injunction or other equitable relief, (iv) settlement of, or an adverse judgment in respect of, the Third-Party Claim is not, in the good faith judgment of the Indemnitee, likely to establish a precedential custom or practice adverse to the continuing business interests of the Indemnitee, and (v) the Indemnitor conducts the defense of the Third-Party Claim actively and diligently.

(c) So long as the Indemnitor is conducting the defense of the Third-Party Claim in accordance with Section 10.3(b), (i) the Indemnitee may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Claim, (ii) the Indemnitee will not consent to the entry of any judgment or enter into any compromise or settlement in respect of the Third-Party Claim without the prior written consent of the Indemnitor (which consent will not be unreasonably conditioned, delayed, or withheld), and (iii) the Indemnitor will not consent to the entry of any judgment or enter into any compromise or settlement in respect of the Third-Party Claim without the prior written consent of the Indemnitee (which consent will not be unreasonably conditioned, delayed, or withheld); provided, however, that, in respect of clause (iii) above, the Indemnitee may condition such consent upon the delivery by the claimant or plaintiff to the Indemnitee of a duly executed unconditional release of the Indemnitee from all liability in respect of such Third-Party Claim.

(d) In the event any condition set forth in Section 10.3(b) is or becomes unsatisfied, however, (i) the Indemnitee may defend against, and consent to the entry of any judgment or enter into any settlement in respect of, the Third-Party Claim in any manner it reasonably may deem appropriate, provided that the Indemnitee will consult with and obtain the consent of the Indemnitor in connection therewith which shall not be unreasonably conditioned, delayed, or withheld, (ii) the Indemnitor will reimburse the Indemnitee promptly and periodically for the costs of defending against the Third-Party Claim (including reasonable attorneys’ fees and expenses), and (iii) the Indemnitor will remain responsible for any Losses the Indemnitee may suffer resulting from, arising out of, relating to, in the nature of, or caused by, the Third-Party Claim to the fullest extent provided in this Section 10.3.

10.4 Direct Claims. The Indemnitor will have a period of thirty (30) days within which to respond in writing to any claim by an Indemnitee on account of a Loss that does not result from a Third-Party Claim (a “Direct Claim”). If the Indemnitor does not so respond within such 30 day period, the Indemnitor will be deemed to have rejected such claim, in which event the Indemnitee will be entitled to pursue such remedies as may be available to the Indemnitee.

10.5 Certain Other Matters. Upon making any Indemnity Payment Indemnitor will, to the extent of such Indemnity Payment, be subrogated to all rights of Indemnitee against any third person (other than an insurance company) in respect of the Loss to which the Indemnity Payment related; provided, however, that (i) Indemnitor shall then be in compliance with its obligations under this Agreement in respect of such Loss and (ii) until Indemnitee fully recovers payment of

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its Loss, any and all claims of the Indemnitor against any such third person on account of such Indemnity Payment will be subrogated and subordinated in right of payment to Indemnitee’s rights against such third person. Without limiting the generality or effect of any other provision hereof, each such Indemnitee and Indemnitor will duly execute upon request all instruments reasonably necessary to evidence and perfect the above-described subrogation and subordination rights. Any Indemnity Payment hereunder shall be treated as an adjustment to the purchase price.

ARTICLE XI.

Miscellaneous

11.1 Amendments. This Agreement may be amended, modified, or supplemented only pursuant to a written instrument making specific reference to this Agreement and signed by each of the parties hereto.

11.2 Assignment. Except as expressly provided otherwise in this Agreement, this Agreement and the rights and obligations hereunder shall not be assigned, delegated, or otherwise transferred (whether by operation of law, by contract, or otherwise) without the prior written consent of the other parties hereto; provided, however, that the Purchaser may, without obtaining the prior written consent of any other party hereto, assign, delegate, or otherwise transfer its rights and obligations hereunder to any of its Affiliates in connection with a transfer of Securities to such Affiliate, provided that any such assignment, delegation or other transfer shall not relieve the Purchaser from its obligations hereunder. Each party shall execute such acknowledgements of such permitted assignments in such forms consistent with the provisions hereof as the assigning party may from time to time reasonably request. Any attempted assignment, delegation, or transfer in violation of this Section 11.2 shall be void and of no force or effect.

11.3 Binding Effect. Except as otherwise expressly provided herein, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

11.4 Counterparts. This Agreement may be executed in multiple counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same instrument.

11.5 Entire Agreement. This Agreement (including the Schedules attached hereto) and the other Transaction Documents constitute the entire agreement of the parties hereto in respect of the subject matter hereof and thereof, and supersede all prior agreements or understandings, among the parties hereto in respect of the subject matter hereof and thereof.

11.6 Fees and Expenses.

(a) At the Closing, the Corporation shall reimburse the Purchaser for reasonable out-of-pocket expenses (including fees and disbursements of their counsel and accountants) incurred by or on behalf of the Purchaser in connection with the preparation, negotiation, execution, delivery, and performance of this Agreement and each Transaction Document through and including the Closing Date, including legal and financial diligence relating thereto.

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(b) The Corporation shall bear all of the expenses (including fees and disbursements of its counsel) incurred by or on behalf of the Corporation in connection with the preparation, negotiation, execution, delivery, and performance of this Agreement and each Transaction Document and the consummation of the transactions contemplated hereby and thereby.

11.7 Governing Law. This Agreement shall be enforced, governed, and construed in all respects in accordance with the laws of the State of New York applicable to contracts executed and performable solely in such state (except for matters governed exclusively by the MGCL).

11.8 Headings. The article and section headings of this Agreement are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provision hereof.

11.9 Jurisdiction. Except as otherwise expressly provided in this Agreement, the parties hereto agree that any action, suit, or proceeding seeking to enforce any provision of, or based on any matter arising out of or relating to, this Agreement or the transactions contemplated hereby can only be brought in federal court sitting in the Eastern District of New York or, if such court does not have jurisdiction, any district court sitting in the Borough of Manhattan, New York County, New York, and each of the parties hereto hereby consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such action, suit, or proceeding and irrevocably waives, to the fullest extent permitted by Law, any objection that it may now or hereafter have to the laying of the venue of any such action, suit, or proceeding in any such court or that any such action, suit, or proceeding that is brought in any such court has been brought in an inconvenient forum.

11.10 Notices. Any notice, demand, request, instruction, correspondence, or other document required or permitted to be given hereunder by any party to the other shall be in writing and delivered (i) in person, (ii) by a nationally recognized overnight courier service requiring acknowledgment of receipt of delivery, (iii) by certified mail, postage prepaid and return receipt requested, or (iv) by facsimile, as follows:

If to the Corporation, to:

4901 Dickens Road, Suite 101

Richmond, Virginia 23230

Attention: Stanley J. Olander, Jr.

Facsimile No.: (804) 237-1345

with a copy to (which shall not constitute notice):

Goulston & Storrs P.C.

885 Third Avenue, 18th Floor

New York, New York 10022

Attention: Yaacov M. Gross, Esq.

Facsimile No.: (212) 878-6911

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If to the Purchaser, to:

2335887 Ontario Inc.

1 Adelaide Street E.

Suite 1200

Toronto, Ontario M5C 3A7

Canada

Attention: Robert A.S. Douglas

Facsimile No.: (416) 681-2500

with a copy to (which shall not constitute notice):

Davies Ward Phillips & Vineberg LLP

900 Third Avenue, 24th Floor

New York, New York 10022

Attention: Jeffrey Nadler, Esq.

Facsimile No.: (212) 318-0132

Notice shall be deemed given, received, and effective on: (i) if given by personal delivery or courier service, the date of actual receipt by the receiving party, or if delivery is refused on the date delivery was first attempted; (ii) if given by certified mail, the third day after being so mailed if posted with the United States Postal Service; and (iii) if given by facsimile, the date on which the facsimile is transmitted if confirmed by transmission report during the transmitter’s normal business hours, or at the beginning of the next business day after transmission if confirmed at any time other than the transmitter’s normal business hours. Any person entitled to notice may change any address or facsimile number to which notice is to be given to it by giving notice of such change of address or facsimile number as provided in this Section 11.10. The inability to deliver notice because of changed address or facsimile number of which no notice was given shall be deemed to be receipt of the notice as of the date such attempt was first made.

11.11 No Recourse. Notwithstanding any provision of this Agreement to the contrary, the Corporation agrees that neither it nor any person acting on its behalf may assert any claim or cause of action against any officer, director, stockholder, controlling person, manager, member, partner, employer, agent, representative, or affiliate of the Purchaser or the Purchaser’s officers, directors, stockholders, controlling persons, managers, members, partners, employees, agents, or representatives in connection with, arising out of, or relating to this Agreement, the Transaction Documents, or the transactions contemplated hereby or thereby.

11.12 Severability. If any provision of this Agreement or the application of such provision to any person or circumstance shall be held (by a court of competent jurisdiction) to be invalid, illegal, or unenforceable under the applicable Law of any jurisdiction, (i) the remainder of this Agreement or the application of such provision to other persons or circumstances or in other jurisdictions shall not be affected thereby, and (ii) such invalid, illegal, or unenforceable provision shall not affect the validity or enforceability of any other provision of this Agreement.

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11.13 Specific Performance. The parties hereby acknowledge and agree that if any party refuses to perform under this Agreement, monetary damages alone will not be adequate to compensate the other parties for their injuries. Therefore, each party shall, in addition to any other remedy that may be available to it, be entitled to obtain specific performance of this Agreement. If any action, suit, or proceeding is instituted by any party to enforce this Agreement, each of the other party hereby waives the defense that there is an adequate remedy at law. In the event of a default by any party that results in the filing of an action for damages, specific performance, or other remedies, the other parties shall be entitled to reimbursement by the defaulting party of all reasonable attorneys’ fees and expenses incurred by it.

11.14 Third-Party Beneficiaries. Nothing express or implied in this Agreement is intended or shall be construed to confer upon or give any Person other than the parties hereto and their respective permitted assigns any rights or remedies under or by reason of this Agreement or the transactions contemplated hereby.

11.15 Waiver. The rights and remedies provided for herein are cumulative and not exclusive of any right or remedy that may be available to any party whether at law, in equity, or otherwise. No delay, forbearance, or neglect by any party, whether in one or more instances, in the exercise or any right, power, privilege, or remedy hereunder or in the enforcement of any term or condition of this Agreement shall constitute or be construed as a waiver thereof. Any waiver or consent shall be valid or binding only if expressly and affirmatively made in writing and duly executed by the party to be charged with such waiver. No waiver shall constitute or be construed as a continuing waiver or a waiver in respect of any subsequent breach or default, either of similar or different nature, unless expressly so stated in such writing.

[Remainder of page intentionally left blank. Signature page follows.]

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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above written.

LANDMARK APARTMENT TRUST OF AMERICA, INC.
By:	/s/ Stanley J. Olander
Name:	Stanley J. Olander
Title:	Chief Executive Officer

Signature to Securities Purchase Agreement

IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above written.

2335887 LIMITED PARTNERSHIP, by its general partner, 2335887 ONTARIO INC.
By:	/s/ Robert A. S. Douglas
Name:	Robert A. S. Douglas
Title:	President
By:	/s/ Joseph Lyn
Name:	Joseph Lyn
Title:	Vice-President and Secretary

Signature to Securities Purchase Agreement