Exhibit 3.2
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement") is entered
into as of March 27, 2002 by and between Summit Properties Partnership, L.P., a
Delaware limited partnership (the "Partnership"), and Summit Properties Inc., a
Maryland corporation and the sole general partner of the Partnership (the
"General Partner"). Capitalized terms used in this Agreement and not otherwise
defined herein shall have the meanings given such terms in that certain Amended
and Restated Agreement of Limited Partnership of the Partnership, dated as of
May 23, 2000 (as amended from time to time, the "Partnership Agreement").
W I T N E S S E T H
WHEREAS, pursuant to Section 8.6.A of the Partnership Agreement, each
Limited Partner (other than the General Partner) has the right to require the
Partnership to redeem all or a portion of the Common Units held by such Limited
Partner (the "Redeeming Partner") at a redemption price equal to and in the form
of the Cash Amount to be paid by the Partnership, subject to the limitations and
other requirements set forth in the Partnership Agreement;
WHEREAS, pursuant to Section 8.6.B of the Partnership Agreement, the
General Partner may, in its sole and absolute discretion, elect to purchase
directly and acquire such Common Units by paying to the Redeeming Partner the
REIT Shares Amount, subject to the limitations and other requirements set forth
in the Partnership Agreement (the "Exchange Right"), whereupon the General
Partner shall acquire the Common Units offered for redemption by the Redeeming
Partner and shall be treated for all purposes of the Partnership Agreement as
the owner of such Common Units;
WHEREAS, the General Partner desires to assign to the Partnership, and
the Partnership desires to assume from the General Partner, the right to
exercise the Exchange Right; and
WHEREAS, pursuant to Section 14.1.B(4) of the Partnership Agreement,
the General Partner has the power, without the consent of the Limited Partners,
to amend the Partnership Agreement to reflect a change that is of an
inconsequential nature and does not adversely affect the Limited Partners in any
material respect.
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Assignment; Assumption.
(a) The General Partner hereby grants, assigns, conveys and
transfers to the Partnership, and the Partnership hereby accepts from the
General Partner, all of the General
Partner's right, title and interest in and to the right to exercise the Exchange
Right; provided, however, that if the Partnership, in connection with a
Redeeming Partner's exercise of its Redemption Right, elects to exercise the
Exchange Right rather than pay the Cash Amount, then: (i) the General Partner
shall satisfy the Redeeming Partner's exercise of its Redemption Right by
issuing and delivering the REIT Shares Amount to such Redeeming Partner and (ii)
such transaction shall be treated, for federal income tax purposes, as a
transfer by the Redeeming Partner of the Common Units offered for redemption to
the General Partner in exchange for the REIT Shares Amount; and provided further
that in no event shall the Partnership acquire or be deemed to acquire a
proprietary interest in any REIT Shares Amount issued as consideration for
Common Units. The General Partner agrees to take such further action and to
execute such additional documents as may be reasonably necessary to effect the
assignment of the right to exercise the Exchange Right to the Partnership.
(b) Subject to Section 1(a) hereof, from and after the date hereof, the
Partnership assumes all right, title and interest in and to, and all obligations
and liabilities relating to or arising in connection with, the right to exercise
the Exchange Right. The Partnership agrees to take such further action and to
execute such additional documents as may be reasonably necessary to effect the
assignment of the right to exercise the Exchange Right to it.
(c) The Partnership and the General Partner agree that the exercise of the
Exchange Right shall be a management power of the General Partner under Section
7.1 of the Partnership Agreement and, consequently, the exercise thereof shall
not be subject to any approval or vote of the Limited Partners.
2. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns.
3. Governing Law. This Agreement, the rights and obligations of the
parties hereto, and any claims or disputes relating thereto, shall be governed
by and construed in accordance with the laws of the State of Delaware (excluding
the choice of law rules thereof).
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IN WITNESS WHEREOF, the Partnership and the General Partner have
executed and delivered this Assignment and Assumption Agreement as of the date
first above written.
SUMMIT PROPERTIES PARTNERSHIP, L.P.
By: Summit Properties Inc.
Its General Partner
By: /S/ Michael G. Malone
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Name: Michael G. Malone
Title: Senior Vice President
SUMMIT PROPERTIES INC.
By: /S/ Michael G. Malone
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Name: Michael G. Malone
Title: Senior Vice President