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STANDSTILL WAIVER AND VOTING AND LOCK-UP AGREEMENT
THIS STANDSTILL WAIVER AND VOTING AND LOCK-UP AGREEMENT (this “ Agreement ”) is made and entered into this 20 th day of August, 2007 by and between Archstone-Smith Trust, a Maryland real estate investment trust (the “ Company ”), and River Holding, LP (the “ Investor ”).
WHEREAS, on May 9, 2007, Tishman Speyer Development Corporation and Lehman Brothers Holdings Inc. each of whom are affiliates of Investor, entered into confidentiality agreements with the Company (the “ Confidentiality Agreement ”) that, among other things, prohibit them and their “Standstill Affiliates” (as defined in the Confidentiality Agreement), including the Investor, from acquiring any securities of the Company;
WHEREAS, on May 28, 2007, the Company, Archstone-Smith Operating Trust, a Maryland real estate investment trust (the “ Operating Trust ”), River Holding, LP, a Delaware limited partnership, River Acquisition (MD), LP, a Maryland limited partnership, and River Trust Acquisition (MD), LLC, a Maryland limited liability company, entered into an Agreement and Plan of Merger (as amended, the “ Merger Agreement ”);
WHEREAS, capitalized terms used herein that are not otherwise defined herein shall have the meanings ascribed to them in the Merger Agreement;
WHEREAS, Investor wishes to purchase outstanding common shares of the Company and/or units of the Operating Trust prior to the effective time of the Mergers and the Company is willing to waive the provisions of the Confidentiality Agreement to the extent necessary to permit Investor to purchase common shares of the Company and/or units of the Operating Trust, on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Waiver of Certain Standstill Provisions .
(a) Subject to compliance by Investor with the provisions of this Agreement, the Company hereby waives any provision of the Confidentiality Agreement and any other agreements to which the Company or its affiliates is a party (other than any such provisions contained in the declaration of trust of the Company or the declaration of trust of the Operating Trust), which could prohibit Investor or its Affiliates from purchasing any securities of the Company or the Operating Trust; provided, however, such waiver is granted solely with respect to purchases of common shares or units of the Company or the Operating Trust made in compliance with this Agreement. The waiver granted hereby shall apply only with respect to purchases of common shares or units made on or before October 5, 2007 by Investor or any Affiliate of Investor or of any owner of Investor that executes an agreement agreeing to be bound by the covenants contained in this Agreement applicable to Investor.
(b) Investor shall not purchase any securities of the Company or the Operating Trust that would cause Investor or its Affiliates to be required to make any filing
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, or that would be reasonably likely to delay the completion of the review of the application of the Buyer Parties under the EU Merger Regulation.
(c) Any purchases by Investor of securities of the Company or the Operating Trust shall be subject to the ownership limits set forth in the Declaration of Trust of the Company and Company is not hereby waiving, and is not hereby agreeing to waive, any such ownership limits.
(d) Investor shall not purchase any securities of the Company or the Operating Trust at any time when it is in possession of material nonpublic information regarding the Company and its purchases shall comply with all applicable laws and regulations, including securities laws and regulations.
(e) Investor shall promptly notify the Company of the number of any securities of the Company or the Operating Trust acquired by Investor after the date hereof.
2. Agreement to Vote .
(a) From and after the date hereof until the earlier of (a) the Company Merger Effective Time and (b) any time of termination of the Merger Agreement in accordance with its terms (such earlier time, the “ Expiration Time ”), at any meeting (whether annual or special and each adjourned or postponed meeting) of the Company’s shareholders at which the Owned Shares (as defined below) are entitled to be voted, however called, or in connection with any written consent of the Company’s shareholders, Investor shall (i) appear at such meeting or otherwise cause its Owned Shares to be counted as present thereat for purposes of calculating a quorum and (ii) vote or cause to be voted (including by written consent, if applicable) all of the common shares of the Company beneficially owned by Investor as of the relevant time (the “ Owned Shares ”) for (A) approval and adoption of the Merger Agreement and the transactions contemplated by the Merger Agreement and (B) approval of any postponement or adjournment of any such meeting proposed by or on behalf of the Company for the purpose of soliciting additional proxies if there are not sufficient votes to approve and adopt the Merger Agreement.
(b) In the event that the Company Board or a Special Committee approves, and authorizes the Company to enter into, (i) a definitive agreement providin