REGISTRATION RIGHTS AGREEMENT
Exhibit 10.28
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made as of February 17, 2010 between
RAMCO-XXXXXXXXXX PROPERTIES TRUST, a Maryland real estate investment trust (the “Company”), and JCP
Realty, Inc., a Delaware corporation (“JCP”).
RECITALS:
WHEREAS, the Company and JCP, among others, are parties to an Exchange Rights Agreement dated
as of May 10, 1996 (the “Exchange Rights Agreement”) pursuant to which the Company has granted to
JCP certain rights to convert all or part of its ownership interests (the “OP Units”) into common
shares of beneficial interest in the Company (“Common Shares”) in accordance with the terms of the
Exchange Rights Agreement.
WHEREAS, the Company and JCP, among others, are parties to a Registration Rights Agreement
(the “Registration Rights Agreement”) dated as of May 10, 1996 pursuant to which the Company
granted to JCP certain incidental registration rights exercisable in accordance with the terms of
the Registration Rights Agreement.
WHEREAS, JCP and the Company wish to enter into this Agreement to document the agreements of
the parties hereto regarding certain registration rights of JCP with respect to Common Shares
issuable upon conversion of the OP Units, and to supersede and restate the Registration Rights
Agreement as to JCP in its entirety.
NOW, THEREFORE, in consideration of the premises and the covenants and agreements contained
herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows:
1. REGISTRATION.
(a) Within 90 days of receipt of notice (“JCP Notice”) from JCP (the “Registration
Deadline”) either (a) electing to convert all of JCP’s remaining OP Units into Registrable
Securities (as defined below) or (b) requesting that the Company put up a shelf registration
for sufficient Registrable Securities into which all of its remaining OP Units may be
converted upon JCP’s electing to so convert them pursuant to its Exchange Rights Agreement,
the Company shall prepare and file with the Securities and Exchange Commission (“SEC”), a
Registration Statement on Form S-3 (or, if Form S-3 is not then available, on such other
form as is available to effect such a registration) covering the resale of the number of
Registrable Securities designated by JCP in the JCP Notice; provided that, in any event,
such Registrable Securities will be delivered to JCP (i) in exchange for no fewer than all
of JCP’s OP Units and (ii) no earlier than 61 days following the JCP Notice, and provided
further, that, in lieu of delivering such Registrable Shares, the Company may pay cash for
such OP Units at a price per OP Unit or share calculated pursuant to the Exchange Rights
Agreement. For purposes of this Agreement, “Registrable Securities” means the Common Shares
issuable to JCP upon conversion of the OP Units on the terms and conditions set forth in the
Exchange Rights
Agreement; provided, that no such securities shall be deemed Registrable
Securities for purposes of this Agreement to the extent that such securities (a) have been sold to the
public pursuant to Rule 144 under the Securities Act of 1933, as amended (the “Securities
Act”) or any successor provision thereto; or (b) may be immediately sold to the public
without registration or restriction (other than notice, volume and manner of sale
requirements by JCP) pursuant to Rule 144 under the Securities Act or any successor
provision thereto.
(b) After filing each Registration Statement pursuant to Section 1(a), the Company
shall use commercially reasonable efforts to cause such Registration Statement to become
effective under the Securities Act by the Registration Deadline. If for any reason the SEC
does not permit all of the Registrable Securities to be included in the Registration
Statement filed pursuant to Section 1(a), then the Company will use commercially reasonable
efforts, in consultation with the SEC, to as promptly as practical and as allowable under
the Securities Act, cause the registration, under a Registration Statement pursuant to Rule
415 under the Securities Act or any successor rule providing for offering securities on a
continuous basis, of the sale of any Registrable Securities that have not been registered
under the applicable Registration Statement filed pursuant to Section 1(a).
2. OBLIGATIONS OF THE COMPANY. In connection with the registration of the Registrable
Securities, the Company shall have the following obligations:
(a) The Company shall (i) prepare and file with the SEC the Registration Statement(s)
required pursuant to Section 1 above and thereafter use commercially reasonable efforts to
cause each such Registration Statement(s) relating to Registrable Securities to become
effective by the Registration Deadline, and (ii) subject to Section 2(m) hereof, shall use
commercially reasonable efforts to keep each such Registration Statement(s) current and
effective pursuant to Rule 415 at all times until the date which is 90 days after the date
on which the Registrable Securities registered thereunder cease to be Registrable Securities
(the “Registration Period” ), which Registration Statement(s) (including any amendments or
supplements thereto and prospectuses contained therein), except for information provided by
JCP, shall not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein, or necessary to make the statements therein not
misleading.
(b) Subject to Section 2(m) hereof, the Company shall, during the Registration Period,
comply with the provisions of the Securities Act applicable to the Company with respect to
the disposition of all Registrable Securities of the Company covered by each Registration
Statement until the earlier of (i) such time as all of such Registrable Securities have been
disposed of in accordance with the intended methods of disposition by the seller or sellers
thereof as set forth in each Registration Statement, and (ii) the date which is 90 days
after the date on which the Registrable Securities registered thereunder cease to be
Registrable Securities.
(c) The Company shall furnish or otherwise make available to JCP and its legal counsel
(i) promptly after the same is prepared and publicly distributed, filed with
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the SEC, or received by the Company, one copy of each Registration Statement and any
amendment thereto, each preliminary prospectus and prospectus and each amendment or
supplement thereto, and each letter written by or on behalf of the Company to the SEC or the
staff of the SEC, and each item of correspondence from the SEC or the staff of the SEC, in
each case relating to such Registration Statement (other than any portion of any thereof
which contains material non-public information or information for which the Company has
sought or intends to seek confidential treatment), and (ii) such number of copies of a
prospectus, including a preliminary prospectus, and all amendments and supplements thereto
and such other documents as JCP may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by JCP. The Company will promptly notify JCP
by facsimile or email of the effectiveness of each Registration Statement or any
post-effective amendment. The Company will promptly respond to any and all comments received
from the SEC, with a view towards causing each Registration Statement or any amendment
thereto to be declared effective by the SEC by the Registration Deadline and shall file an
acceleration request as soon as practicable, but no later than 5 business days, following
the later of (i) resolution or clearance of all SEC comments or, if applicable, notification
by the SEC that any such Registration Statement or any amendment thereto will not be subject
to review and (ii) the date the Company is notified in writing of any comments (or that
there are no comments), to the Company’s request for acceleration, from the single firm
designated by JCP to review such acceleration request pursuant to Section 2(g).
(d) The Company shall use commercially reasonable efforts to (i) register and qualify,
in any United States jurisdiction where registration and/or qualification is required, the
Registrable Securities covered by the Registration Statements under such other securities or
“blue sky” laws of such jurisdictions in the United States as JCP shall reasonably request
in writing, (ii) prepare and file in those jurisdictions such amendments (including
post-effective amendments) and supplements to such registrations and qualifications as may
be necessary to maintain the effectiveness thereof during the Registration Period, (iii)
take such other actions as may be necessary to maintain such registrations and
qualifications in effect at all times during the Registration Period, and (iv) take all
other actions reasonably necessary or advisable to qualify the Registrable Securities for
sale in such jurisdictions, provided, that the Company shall not be required in connection
therewith or as a condition thereto to (A) qualify to do business in any jurisdiction where
it would not otherwise be required to qualify but for this Section 2(d), (B) subject itself
to general taxation in any such jurisdiction, or (C) file a general consent to service of
process in any such jurisdiction.
(e) Subject to Section 2(m) hereof, as promptly as practicable after becoming aware of
such event, the Company shall notify JCP of the happening of any event, of which the Company
has knowledge, as a result of which the prospectus included in any Registration Statement,
as then in effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading, and use its commercially reasonable efforts promptly to prepare a supplement or
amendment to any Registration Statement to correct such
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untrue statement or omission, and
deliver such number of copies of such supplement or amendment to JCP as JCP may reasonably
request.
(f) The Company shall use commercially reasonable efforts to prevent the issuance of
any stop order or other suspension of effectiveness of any Registration Statement, and, if
such an order is issued, to obtain the withdrawal of such order at the earliest practical
moment and to notify JCP of the issuance of such order and the resolution thereof.
(g) The Company shall permit a single firm of counsel designated by JCP to review such
Registration Statement and all amendments and supplements thereto (as well as all requests
for acceleration or effectiveness thereof), at JCP’s own cost, a reasonable period of time
prior to their filing with the SEC (not less than 5 business days) and use commercially
reasonable efforts to reflect in such documents any comments as such counsel may reasonably
propose (so long as such comments are provided to the Company at least 2 business days prior
to the expected filing date) and will not request acceleration of such Registration
Statement without prior notice to such counsel; provided, that the Company shall make the
final decision as to the form and content of each such document.
(h) The Company shall provide a transfer agent and registrar, which may be a single
entity, for the Registrable Securities not later than the effective date of the initial
Registration Statement.
(i) The Company shall cooperate with JCP to facilitate the timely preparation and
delivery of certificates (not bearing any restrictive legends) representing Registrable
Securities sold pursuant to such Registration Statement and enable such certificates to be
in such denominations or amounts as JCP may reasonably request and registered in such names
as JCP may request, and, within 10 business days after a Registration Statement which
includes Registrable Securities is declared effective by the SEC, the Company shall deliver,
and shall cause legal counsel selected by the Company to deliver, to the transfer agent for
the Registrable Securities (with copies to JCP) an appropriate instruction and an opinion of
such counsel in the form required by the transfer agent in order to issue such Registrable
Securities free of restrictive legends upon the resale of such Registrable Securities
pursuant to such Registration Statement.
(j) At the reasonable request of JCP, the Company shall prepare and file with the SEC
such amendments (including post-effective amendments) and supplements to a Registration
Statement and any prospectus used in connection with the Registration Statement as may be
necessary in order to make reasonable changes to the plan of distribution set forth in such
Registration Statement.
(k) The Company shall not offer any securities for its own account or the account of
others in any Registration Statement under Section 1 hereof or any amendment or supplement
thereto under Section 2(a) hereof without the consent of JCP.
(l) The Company shall use commercially reasonable efforts to comply with all applicable
laws related to a Registration Statement and offering and sale of securities
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and all applicable rules and regulations of governmental authorities in connection therewith
(including without limitation the Securities Act and the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), and the rules and regulations promulgated by the SEC).
(m) Notwithstanding anything to the contrary herein, at any time after the Registration
Statement has been declared effective by the SEC, the Company may delay or suspend the
effectiveness of any Registration Statement or the use of any prospectus forming a part of
the Registration Statement, in its sole discretion, due to the non-disclosure of material,
non-public information concerning the Company, the disclosure of which at the time is not in
its best interest, in the good faith opinion of the Company (a “Grace Period” ); provided,
that the Company shall promptly notify JCP in writing of the existence of a Grace Period in
conformity with the provisions of this Section 2(m) and the date on which the Grace Period
will begin (such notice, a “Commencement Notice” ); and, provided further, that no Grace
Period shall exceed 45 days, and such Grace Periods shall not exceed an aggregate total of
90 days during any 12-month period. For purposes of determining the length of a Grace Period
above, the Grace Period shall begin on and include the date specified by the Company in the
Commencement Notice and shall end on and include the date JCP receives written notice of the
termination of the Grace Period by the Company (which notice may be contained in the
Commencement Notice). The provisions of Sections 2(a)(ii), 2(b) and 2(e) hereof shall not be
applicable during any Grace Period. Upon expiration of the Grace Period, the Company shall
again be bound by Sections 2(a)(ii), 2(b) and 2(e) with respect to the information giving
rise thereto unless such material, non-public information is no longer applicable.
3. OBLIGATIONS OF JCP. In connection with the registration of the Registrable Securities, JCP
shall have the following obligations:
(a) It shall be a condition precedent to the obligations of the Company to complete a
Registration pursuant to this Agreement with respect to the Registrable Securities that JCP
shall furnish to the Company such information regarding itself, the Registrable Securities
held by it and the intended method of disposition of the Registrable Securities held by it
as shall be reasonably required to effect the registration of such Registrable Securities
and shall execute such documents in connection with such registration as the Company may
reasonably request. At least 5 business days prior to the first anticipated filing date of a
Registration Statement under which Registrable Securities will be registered, the Company
shall notify JCP of the information the Company requires from JCP. Any such information
shall not contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein, or necessary to make the statements therein not misleading.
JCP must provide such information to the Company at least 2 business days prior to the first
anticipated filing date of such Registration Statement.
(b) JCP agrees to cooperate with the Company as reasonably requested by the Company in
connection with the preparation and filing of each Registration Statement hereunder.
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(c) JCP agrees that, upon receipt of any notice from the Company of the happening of
any event of the kind described in
Sections 2(e), 2(f) or 2(m), JCP will
immediately discontinue disposition of Registrable Securities pursuant to the
Registration Statement covering such Registrable Securities until JCP’s receipt of the
copies of the supplemented or amended prospectus contemplated by Section 2(e) or 2(f) or
notice from the Company of the termination of the Grace Period, and, if so directed by the
Company, JCP shall deliver to the Company (at the expense of the Company) or destroy (and
deliver to the Company a certificate of destruction) all copies in JCP’s possession, of the
prospectus covering such Registrable Securities current at the time of receipt of such
notice.
(d) JCP agrees that it will not effect any disposition or other transfer of the
Registrable Securities that would constitute a sale within the meaning of the Securities Act
other than transactions exempt from the registration requirements of the Securities Act or
pursuant to, and as contemplated in, a Registration Statement, and that it will promptly
notify the Company of any material changes in the information set forth in a Registration
Statement furnished by or regarding JCP or its plan of distribution other than changes in
the number of shares beneficially owned.
4. EXPENSES OF REGISTRATION. All expenses of the Company incurred in connection with
registrations, filings or qualifications pursuant to Sections 1 and 2, including, without
limitation, all registration, listing and qualification fees, printers and accounting fees and the
fees and disbursements of counsel for the Company, shall be borne by the Company. All expenses of
JCP incurred in connection with registrations, filings or qualifications pursuant to Sections 1, 2
and 3, including, without limitation, underwriting discounts and commissions and legal expenses
incurred by JCP for review of any Registration Statement, shall be borne by JCP.
5. REPORTS UNDER THE EXCHANGE ACT. With a view to making available to JCP the benefits of
Rule 144 promulgated under the Securities Act or any other similar rule or regulation of the SEC
that may at any time permit JCP to sell securities of the Company to the public without
registration, the Company agrees to:
(a) make and keep public information available, as those terms are understood and
defined in Rule 144;
(b) file with the SEC in a timely manner all reports and other documents required of
the Company under the Securities Act and the Exchange Act so long as the Company remains
subject to such requirements and the filing of such reports and other documents is required
for the applicable provisions of Rule 144; and
(c) furnish to JCP, so long as JCP own Registrable Securities, promptly upon request,
(i) a written statement by the Company that it has complied with the reporting requirements
of the Securities Act and the Exchange Act as required for applicable provisions of Rule
144, (ii) a copy of the most recent annual or quarterly report of the Company and such other
reports and documents so filed by the Company, and (iii) such other information as may be
reasonably requested to permit JCP to sell such securities pursuant to Rule 144 without
registration.
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6. NO ASSIGNMENT OF REGISTRATION RIGHTS. The rights under this Agreement shall not be
assignable by JCP, except to its affiliates or to any transferee acquiring all of JCP’s OP Units.
7. REDEMPTION OF COMMON SHARES. In the event that, (i) for any reason, the Company does not
cause any Registration Statement required under Section 1 to become effective under the Securities
Act by the Registration Deadline or (ii) a Grace Period pursuant to Section 2(m) above commences at
any time within the first 365 days after the effectiveness of any Registration Statement filed by
the Company pursuant to Section 1 above, then, notwithstanding anything in the Exchange Rights
Agreement to the contrary, JCP may elect to require the Company to redeem all or part of JCP’s
Common Shares for which JCP’s OP Units have been exchanged for a cash amount at a price per Common
Share calculated pursuant to the Exchange Rights Agreement. In the event of such election, the
registration rights set forth in this Agreement shall not apply to such Common Shares.
8. INDEMNIFICATION.
(a) In the event of any registration of Registrable Securities hereunder, the Company
will, and hereby does, indemnify and hold harmless, JCP, its directors, trustees, officers,
partners, agents, employees and affiliates and each other person who participates as an
underwriter in the offering or sale of such securities and each other person or entity, if
any, who controls JCP or any such underwriter within the meaning of the Securities Act,
against any and all losses, claims, damages, expenses or liabilities, joint or several,
actions or proceedings (whether commenced or threatened) in respect thereof, to which each
such indemnified party may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages, expenses or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any Registration
Statement under which the Registrable Securities were registered under the Securities Act,
any preliminary prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein in
light of the circumstances in which they were made not misleading, and the Company will
reimburse JCP and each director, trustee, officer, partner, agent, employee or affiliate,
underwriter and controlling person for any legal or any other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim, damage, expense,
liability, action, or proceeding; provided, that
(i) the Company shall not be liable in any such case to the extent that any
such loss, claim, damage, expense or liability (or action or proceeding in respect
thereof) arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such Registration Statement, any
such preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement in reliance upon and in conformity with written information furnished to
the Company through an instrument duly
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executed by or on behalf of JCP or its underwriter specifically stating that it
is for use in the preparation thereof, and
(ii) the Company shall not be liable to any person who participates as an
underwriter in the offering or sale of Registrable Securities or any other person or
entity, if any, who controls or is controlled by such underwriter within the meaning
of the Securities Act, in any such case to the extent that any such loss, claim,
damage, expense or liability (or action or proceeding in respect thereof) arises out
of such underwriter’s failure to send or give a copy of the final prospectus, as the
same may be then supplemented or amended, to the person asserting an untrue
statement or alleged untrue statement or omission or alleged omission at or prior to
the written confirmation of the sale of Registrable Securities to such person if
such statement or omission was corrected in such final prospectus.
(b) In the event of any registration of Registrable Securities hereunder, JCP will
indemnify, and hereby does, indemnify and hold harmless the Company, its trustees, its
officers who sign the Registration Statement, each person or entity who participates as an
underwriter in the offering or sale of such securities, and each person or entity, if any,
who controls the Company or any such underwriter within the meaning of the Securities Act
against any and all losses, claims, damages, expenses or liabilities, joint or several,
actions or proceedings (whether commenced or threatened) in respect thereof, to which each
such indemnified party may become subject under the Securities Act or otherwise insofar as
such losses, claims, damages, expenses or liabilities (or actions or proceedings, whether
commenced or threatened in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact in or omission or alleged omission
to state a material fact in such Registration Statement, any preliminary prospectus, final
prospectus or summary prospectus contained therein, or any amendment or supplement thereto,
but only to the extent that such statement or omission was made in reliance upon and
conformity with written information furnished by JCP to the Company through an instrument
duly executed by or on behalf of JCP specifically stating that it is for use in preparation
thereof and provided, that JCP shall not be liable to any person who participates as an
underwriter in the offering or sale of Registrable Securities or any other person or entity,
if any, who controls or is controlled by such underwriter within the meaning of the
Securities Act, in any such case to the extent that any such loss, claim, damage, expense or
liability (or action or proceeding in respect thereof) arises out of such underwriter’s
failure to send or give a copy of the final prospectus, as the same may be then supplemented
or amended, to the person asserting an untrue statement or alleged untrue statement or
omission or alleged omission at or prior to the written confirmation of the sale of
Registrable Securities to such person if such statement or omission was corrected in such
final prospectus.
(c) Promptly after receipt by any indemnified party hereunder of notice of the
commencement of any action or proceeding involving a claim referred to in paragraphs (a) or
(b) of this Section 8, the indemnified party will notify the indemnifying party in writing
of the commencement thereof; but the omission so to notify the indemnifying
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party will not relieve the indemnifying party from any liability which it may have to any
indemnified party under paragraphs (a) or (b) of this Section 8, except to the extent
it is prejudiced thereby. In case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent that it shall
wish, to assume the defense thereof, with counsel selected by it and approved by the
indemnified party (which approval shall not be unreasonably withheld or delayed), and, after
notice from the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such indemnified party
under paragraph (a) or (b) of this Section 8 for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified party, in connection
with the defense thereof other than reasonable costs of investigation; provided, that an
indemnified party shall have the right to retain its own counsel, with the reasonable fees
and expenses to be paid by the indemnifying party, if representation of such indemnified
party by the counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. In addition, the indemnifying party shall
not be required to indemnify, reimburse or otherwise make any contribution to the amount
paid or payable by the indemnified party for any losses, claims, damages, expenses or
liabilities incurred by the indemnified party in settlement of any actions, proceedings or
investigations otherwise covered hereunder unless such settlement has been previously
approved by the indemnifying party, which approval shall not be unreasonably withheld or
delayed.
(d) If for any reason the indemnity under this Section 8 is unavailable or is
insufficient to hold harmless any indemnified party under paragraph (a) or (b) of this
Section 8, then the indemnifying parties shall contribute to the amount paid or payable by
the indemnified party as a result of any loss, claim, expense, damage or liability (or
actions or proceedings, whether commenced or threatened, in respect thereof), and legal or
other expenses reasonably incurred by the indemnified party in connection with investigating
or defending any such loss, claim, expense, damage, liability, action or proceeding, in such
proportion as is appropriate to reflect the relative fault of the indemnifying party on the
one hand and the indemnified party on the other. The relative fault 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 Company or JCP and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue statement or
omission. If, however, the allocation provided in the second preceding sentence is not
permitted by applicable law, or if the allocation provided in the second preceding sentence
provides a lesser sum to the indemnified party than the amount hereinafter calculated, then
the indemnifying party shall contribute to the amount paid or payable by the indemnified
party in such proportion as is appropriate to reflect not only such relative fault but also
the relative benefits of the indemnifying party and the indemnified party as well as any
other relevant equitable considerations. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this paragraph (d) of Section 8 were to be
determined by pro rata allocation or by any other
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method of allocation which does not take account of the equitable considerations
referred to in the preceding sentences of this paragraph (d) of Section 8.
(e) Indemnification and contribution similar to that specified in this Section 8 (with
appropriate modifications) shall be given by the Company and JCP with respect to any
required registration or other qualification of securities under any federal, state or blue
sky law or regulation of any governmental authority other than the Securities Act.
(f) Notwithstanding any other provision of this Section 8, to the extent that any
director, trustee, officer, partner, agent, employee, affiliate, or other representative
(current or former) of any indemnified party is a witness in any action or proceeding, the
indemnifying party agrees to pay to the indemnified party all out-of-pocket expenses
reasonably incurred by, or on the behalf of, the indemnified party and such witness in
connection therewith.
(g) All legal and other expenses incurred by or on behalf of JCP in connection with
investigating or defending any loss, claim, expense, damage, liability, action or proceeding
shall be paid by the Company in advance of the final disposition of such investigation,
defense, action or proceeding within 30 days after the receipt by the Company of a statement
or statements from JCP requesting from time to time such payment, advance or advances. The
entitlement of JCP to such payment or advancement of expenses shall include those incurred
in connection with any action or proceeding by JCP seeking an adjudication or award in
arbitration pursuant to this Section 8. Such statement or statements shall reasonably
evidence such expenses incurred by JCP in connection therewith.
(h) The termination of any proceeding by judgment, order, settlement or conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, adversely affect the
rights of any indemnified party to indemnification hereunder or create a presumption that
any indemnified party violated any federal or state securities laws.
(i)
(i) In the event that advances are not made pursuant to this Section 8 or
payment has not otherwise been timely made, each indemnified party shall be entitled
to seek a final adjudication in an appropriate court of competent jurisdiction of
the entitlement of the indemnified party to indemnification or advances hereunder.
(ii) The Company and JCP agree that they shall be precluded from asserting that
the procedures and presumptions of this Section 8 are not valid, binding and
enforceable. The Company and JCP further agree to stipulate in any such court that
the Company and JCP are bound by all the provisions of this Section 8 and are
precluded from making any assertion to the contrary.
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(iii) To the extent deemed appropriate by the court, interest shall be paid by
the indemnifying party to the indemnified party at a reasonable interest
rate for amounts which the indemnifying party has not timely paid as the result
of its indemnification and contribution obligations hereunder.
(j) In the event that any indemnified party is a party to or intervenes in any
proceeding in which the validity or enforceability of this Section 8 is at issue or seeks an
adjudication to enforce the rights of any indemnified party under, or to recover damages for
breach of, this Section 8, the indemnified party, if the indemnified party prevails in
whole in such action, shall be entitled to recover from the indemnifying party and shall be
indemnified by the indemnifying party against, any expenses incurred by the indemnified
party. If it is determined that the indemnified party is entitled to indemnification for
part (but not all) of the indemnification so requested, expenses incurred in seeking
enforcement of such partial indemnification shall be reasonably prorated among the claims,
issues or matters for which the indemnified party is entitled to indemnification and for
such claims, issues or matters for which the indemnified party is not so entitled.
(k) The indemnity agreements contained in this Section 8 shall be in addition to any
other rights (to indemnification, contribution or otherwise) which any indemnified party may
have pursuant to law or contract and shall remain operative and in full force and effect
regardless of any investigation made or omitted by or on behalf of any indemnified party and
shall survive the transfer of any Registrable Securities by JCP.
9. TERMINATION OF RIGHTS AND OBLIGATIONS. The obligations of the parties pursuant to the
terms of this Agreement, other than the obligations set forth in Sections 8 and 10, shall terminate
upon the date upon which all Registrable Securities held by JCP cease to be Registrable Securities
and neither JCP nor its affiliate nor the transferee of its entire interest in the OP Units
continue to own any OP Units.
10. WAIVER OF CERTAIN REGISTRATION RIGHTS. Except for those rights that are contained within
this Agreement, JCP hereby waives all rights granted to it by the Company under the Registration
Rights Agreement with respect to any offering of securities of the Company.
11. ENTIRE AGREEMENT. The parties acknowledge and agree that this Agreement supersedes the
Registration Rights Agreement in its entirety. Accordingly, this Agreement contains the entire
agreement between the parties with respect to the subject matter hereof and there are no agreements
or understandings between the parties other than those set forth or referred to herein. This
Agreement is not intended to confer upon any person not a party hereto any rights or remedies
hereunder, except those persons and entities referred to in Sections 6 and 8 hereof.
12. SPECIFIC PERFORMANCE. The parties hereto acknowledge and agree that money damages may not
be an adequate remedy for any breach of the provisions of this Agreement and that any party may, in
its sole discretion, apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and
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for other injunctive relief in order to
enforce or prevent violation of the provisions of this Agreement.
13. MISCELLANEOUS.
(a) Counterparts. This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement, and shall become effective when one or
more counterparts have been signed by each of the parties and delivered to the other
parties. Copies of executed counterparts transmitted by telecopy, telefax or other
electronic transmission service shall be considered original executed counterparts for
purposes of this Section 13, provided the receipt of such counterparts is confirmed.
(b) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT REFERENCE TO THE CHOICE OF LAW PRINCIPLES
THEREOF.
(c) Jurisdiction; Venue. Legal proceedings commenced by either party arising out of
any of the rights or obligations contemplated by this Agreement shall be brought exclusively
in the federal courts of Delaware or in the absence of federal jurisdiction in the state
courts of Delaware. The parties to this Agreement hereby irrevocably submit to the personal
jurisdiction of such courts and hereby irrevocably waive, to the fullest extent permitted
under law, the defense of an inconvenient forum or improper venue to the maintenance of such
action or proceeding.
(d) Notices. All notices and other communications hereunder shall be sufficiently
given for all purposes hereunder if in writing and delivered personally, sent by documented
overnight delivery service or sent by certified mail/return receipt requested, postage
prepaid, to the appropriate address as set forth below. Notices duly mailed in accordance
with this Section shall be deemed to have been served on the date of mailing. Notices to
the Company shall be addressed to:
Ramco-Xxxxxxxxxx Properties Trust
00000 Xxxxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
00000 Xxxxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
with a copy to:
Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx
0000 Xxxxx Xxxxxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx
0000 Xxxxx Xxxxxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx
or at such other address and to the attention of such other person as the Company may designate by
written notice to JCP.
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Notices to JCP shall be addressed to:
JCP Realty, Inc.
0000 Xxxxxx Xxxxx (MS 1104)
Xxxxx, XX 00000-0000
Attention: Real Estate Counsel
0000 Xxxxxx Xxxxx (MS 1104)
Xxxxx, XX 00000-0000
Attention: Real Estate Counsel
with a copy to:
JCP Realty, Inc.
0000 Xxxxxx Xxxxx (XX 0000)
Xxxxx, XX 00000-0000
Attention: Executive Vice President
0000 Xxxxxx Xxxxx (XX 0000)
Xxxxx, XX 00000-0000
Attention: Executive Vice President
or at such other address and to the attention of such other person as JCP may designate by written
notice to the Company upon at least ten (10) days prior written notice.
(e) Headings. The Section and other headings contained in this Agreement are inserted
for convenience of reference only and will not affect the meaning or interpretation of this
Agreement.
(f) Amendments and Waivers. This Agreement may not be modified or amended except by an
instrument or instruments in writing signed by the party against whom enforcement of any
such modification or amendment is sought. Any party hereto may, only by an instrument in
writing, waive compliance by any other party hereto with any term or provision hereof on the
part of such other party hereto to be performed or complied with. The waiver by any party
hereto of a breach of any term or provision hereof shall not be construed as a waiver of any
subsequent breach.
(g) Absence of Presumption. This Agreement shall be construed without regard to any
presumption or rule requiring construction or interpretation against the party drafting or
causing any instrument to be drafted.
(h) Severability. Any provision hereof which is invalid or unenforceable shall be
ineffective to the extent of such invalidity or unenforceability, without affecting in any
way the remaining provisions hereof.
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IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of each of the parties
hereto as of the day first above written.
| RAMCO-XXXXXXXXXX PROPERTIES TRUST | ||
| By: /s/ Xxxxxx Xxxxxxxxxx | ||
| Name: Xxxxxx Xxxxxxxxxx | ||
| Title: President and Chief Executive Officer | ||
| JCP REALTY, INC. | ||
| By: /s/ Xxxxxx X. Xxxxxxxx | ||
| Name: Xxxxxx X. Xxxxxxxx | ||
| Title: Vice President |
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