EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made and
entered into as of December 12, 2002 by and between NEW PLAN EXCEL REALTY TRUST,
INC., a Maryland corporation (the "COMPANY"), and EIG OPERATING PARTNERSHIP,
L.P. (together with its respective successors and assigns permitted under
Section 7.3 hereof, the "HOLDER").
WHEREAS, the Company and EIG Operating Partnership, L.P., a Delaware
limited partnership ("SELLER"), are entering into a transaction whereby the
Seller will contribute certain shopping center properties to Excel Realty
Partners, L.P., a Delaware limited partnership (the "PARTNERSHIP") (such
transaction, the "TRANSACTION") and, in connection therewith, the Partnership is
issuing an aggregate of 587,184 limited partner units in the Partnership (such
units, the "UNITS") to the Holder;
WHEREAS, pursuant to the terms of Section 8.6 and the other related
provisions of the Agreement of Limited Partnership of the Partnership (such
agreement, as amended from time to time, the "PARTNERSHIP AGREEMENT"),
commencing on the first anniversary of the date of issuance, and subject to the
various limitations contained in the Partnership Agreement and other instruments
being delivered in connection with the Transaction, the Holder will be entitled
to redeem its Units for cash or, at the Company's election, shares of common
stock, par value $0.01 per share, of the Company ("COMMON STOCK");
WHEREAS, the Company has agreed to grant to the Holder the
Registration Rights (as defined in Section 1 hereof);
NOW, THEREFORE, the parties hereto, in consideration of the
foregoing, the mutual covenants and agreements hereinafter set forth, and other
good and valuable consideration, the receipt and sufficiency of which are
acknowledged, hereby agree as follows:
SECTION 1. REGISTRATION RIGHTS
Subject to the various terms and conditions of the Partnership
Agreement and the limitations upon Holder's redemption of the Units set forth in
other instruments being delivered in connection with the Transaction, if the
Holder receives shares of Common Stock upon redemption of Units held by such
Holder ("REDEMPTION SHARES"), then, unless the Redemption Shares are issued to
the Holder pursuant to an Issuer Registration Statement as provided in Section 2
hereof, the Holder shall be entitled to offer the Redemption Shares for sale
pursuant to a shelf registration statement, subject to the terms and conditions
set forth in Section 3 hereof (the "REGISTRATION RIGHTS").
SECTION 2. ISSUER REGISTRATION STATEMENT
The Company shall use commercially reasonable efforts to, during the
period beginning fifteen (15) days prior to the date the Holder is first
permitted to redeem the Units pursuant to the Partnership Agreement and ending
fifteen (15) days thereafter, cause to be filed with the Securities and Exchange
Commission (the "COMMISSION") a registration statement (an "ISSUER REGISTRATION
STATEMENT") that complies as to form in all material respects with applicable
Commission rules providing for the registration of the Redemption Shares to be
issued to the Holder. The Company shall use commercially reasonable efforts to
cause the Issuer Registration Statement to be declared effective by the
Commission as soon as practicable following the filing thereof; PROVIDED, that
the Company shall be entitled to postpone the filing, or the effectiveness, of
the Issuer Registration Statement if (i) the Company is actively pursuing an
underwritten primary offering of equity securities, or (ii) the negotiation or
consummation of a transaction by the Company or its subsidiaries is pending or
an event has occurred, which negotiation, consummation or event would require
additional disclosure by the Company in the Issuer Registration Statement of
material information which the Company has a BONA FIDE business purpose for
keeping confidential and the non-disclosure of which in the Issuer Registration
Statement would be expected, in the Company's reasonable determination, to cause
the Issuer Registration Statement to fail to comply with applicable disclosure
requirements (each such circumstance a "SUSPENSION EVENT"); PROVIDED, HOWEVER,
that the Company may not delay the filing, or the effectiveness, of the Issuer
Registration Statement for more than sixty (60) days. The Company agrees to use
commercially reasonable efforts to keep such Issuer Registration Statement
continuously effective until such time as the Holder no longer owns any Units.
Anything contained herein to the contrary notwithstanding, in the event that the
Redemption Shares are issued by the Company to the Holder pursuant to an Issuer
Registration Statement, the Company shall be deemed to have satisfied all of its
registration obligations under this Agreement in respect of such Redemption
Shares.
SECTION 3. DEMAND REGISTRATION RIGHTS
3.1 (a) REGISTRATION PROCEDURE. Unless such Redemption Shares have
been included in the filing of an Issuer Registration Statement as provided in
Section 2 hereof, then, subject to Sections 3.1(c) and 3.2 hereof, the Holder
may deliver to the Company, at any time after the last date on which an Issuer
Registration Statement may be filed as provided in Section 2 hereof, a written
notice (a "REGISTRATION NOTICE") informing the Company of its desire to have the
Redemption Shares underlying its Units registered for sale (such Redemption
Shares, together with all additional shares of Common Stock which may be issued
in the future upon redemption of any remaining Units held by Holder, referred to
herein as the "REGISTRABLE SECURITIES"); provided, however, that if the
Redemption Shares have been included in the Issuer Registration Statement and
the Issuer Registration Statement has not been declared effective by the SEC
within ninety (90) days after the original filing date or the Company is unable
to keep such Issuer Registration Statement effective until such time as the
Holder no longer owns any Units, the Holder shall be entitled to exercise the
rights provided under this Section 3.1. Upon receipt of the Registration Notice,
if the Company has not already caused the Registrable Securities to be included
as part of an existing shelf registration statement and related prospectus
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that the Company then has on file with, and has been declared effective by, the
Commission and which remains in effect and not subject to any stop order,
injunction or other order or requirement of the Commission (the "SHELF
REGISTRATION STATEMENT") (in which event the Company shall be deemed to have
satisfied its registration obligation under this Section 3), then the Company
will cause to be filed with the Commission as soon as reasonably practicable
after receiving the Registration Notice, but in no event more than sixty (60)
days following receipt of such notice, a new registration statement and related
prospectus (the "NEW REGISTRATION STATEMENT") that complies as to form in all
material respects with applicable Commission rules providing for the sale by the
Holder of the Registrable Securities, and agrees (subject to Section 3.2 hereof)
to use commercially reasonable efforts to cause the New Registration Statement
to be declared effective by the Commission as soon as practicable. (As used
herein, "REGISTRATION STATEMENT" and "PROSPECTUS" refer to the Shelf
Registration Statement and related prospectus (including any preliminary
prospectus) or the New Registration Statement and related prospectus (including
any preliminary prospectus), whichever is utilized by the Company to satisfy
Holder's Registration Rights pursuant to this Section 3, including, in each
case, any documents incorporated therein by reference.)
Subject to Section 3.2 hereof, the Company agrees to use
commercially reasonable efforts to keep the Registration Statement continuously
effective (including the preparation and filing of any amendments and
supplements necessary for that purpose) until the earlier of (i) the date that
is two (2) years after the date of effectiveness of the Registration Statement,
(ii) the date on which all of the Redemption Shares held by the Holder are
eligible for immediate sale pursuant to Rule 144(k) (or any successor provision)
or in a single transaction under Rule 144(e) (or any successor provision) under
the Securities Act of 1933, as amended (the "SECURITIES ACT"), or (iii) the date
on which the Holder consummates the sale of all of the Redemption Shares.
Notwithstanding the foregoing, the Company may at any time, in its sole
discretion and prior to receiving a Registration Notice from the Holder, include
all of the Holder's Redemption Shares or any portion thereof in any shelf
Registration Statement (in which event the Company shall be deemed to have
satisfied its registration obligation under this Section 3.1(a) so long as such
shelf Registration Statement remains effective and not the subject of any stop
order, injunction or other order of the Commission).
(b) OFFERS AND SALES. All offers and sales by the Holder under the
Registration Statement shall be completed within the period during which the
Registration Statement remains effective and not the subject of any stop order,
injunction or other order of the Commission. Upon notice that such shelf
Registration Statement is no longer effective the Holder will not offer or sell
the Registrable Securities under the Registration Statement. If directed in
writing by the Company, the Holder will return all undistributed copies of the
Prospectus in its possession upon the expiration of such period.
(c) LIMITATIONS ON REGISTRATION RIGHTS. Each exercise of the
Registration Rights under Section 3.1(a) shall be with respect to a minimum of
one hundred thousand (100,000) Redemption Shares and any such exercise shall not
occur more than once in any 12-month period. The right of the Holder to deliver
a Registration Notice commences upon the first date Holder is permitted to
redeem the Units pursuant to the Partnership Agreement and other
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instruments being delivered in connection with the Transaction. The right of the
Holder under this Section 3.1 shall expire upon the earlier of (i) the date that
is six (6) months after the Company provides written notice to the Holder of the
occurrence of a Step-Up Event (as defined below) with respect to at least
ninety-five percent (95%) of the Units issued to the Holder in connection with
the Transaction or (ii) the date on which all of the Redemption Shares held by
the Holder or issuable upon redemption of the Units held by the Holder are
eligible for immediate sale pursuant to Rule 144(k) (or any successor provision)
or in a single transaction pursuant to Rule 144(e) (or any successor provision)
under the Securities Act. The Registration Rights granted pursuant to this
Section 3 may not be exercised in connection with any underwritten public
offering by the Company or by the Holder without the prior written consent of
the Company. A "Step-Up Event" shall be deemed to have occurred with respect to
any Units when the basis of such Units for federal income tax purposes is
adjusted to fair market value by reason of death or a gain recognition event.
3.2 SUSPENSION OF OFFERING. Notwithstanding Section 3.1(a) hereof,
the Company shall be entitled to postpone the filing of the Registration
Statement, and from time to time to require Holder not to sell under the
Registration Statement or to suspend the effectiveness thereof, upon the
occurrence of a Suspension Event; PROVIDED, HOWEVER, that the Company may not
delay, suspend or withdraw the Registration Statement for more than sixty (60)
days at any one time, or more than twice in any twelve (12) month period. Upon
receipt of any written notice from the Company of the happening of any
Suspension Event during the period the Registration Statement is effective or if
as a result of a Suspension Event the Registration Statement or related
Prospectus contains any untrue statement of a material fact or omits to state
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made (in
the case of the Prospectus) not misleading, the Holder agrees that (i) it will
immediately discontinue offers and sales of the Registrable Securities under the
Registration Statement until the Holder receives copies of a supplemental or
amended Prospectus (which the Company agrees to promptly prepare) that corrects
the misstatement(s) or omission(s) referred to above and receives notice that
any post-effective amendment has become effective or unless otherwise notified
by the Company that it may resume such offers and sales, and (ii) it will
maintain the confidentiality of any information included in the written notice
delivered by the Company unless otherwise required by law or subpoena. If so
directed by the Company, the Holder will deliver to the Company all copies of
the Prospectus covering the Registrable Securities current at the time of
receipt of such notice.
3.3 QUALIFICATION. The Company agrees to use commercially reasonable
efforts to register or qualify the Registrable Securities by the time the
applicable Registration Statement is declared effective by the Commission under
all applicable state securities or "blue sky" laws of such jurisdictions as the
Holder may reasonably request in writing, to keep each such registration or
qualification effective during the period such Registration Statement is
required to be kept effective pursuant to this Agreement or during the period
offers or sales are being made by the Holder after delivery of a Registration
Notice to the Company, whichever is shorter, and to do any and all other similar
acts and things which may be reasonably necessary or advisable to enable the
Holder to consummate the disposition of the Registrable Securities owned by the
Holder in each such jurisdiction; PROVIDED, HOWEVER, that the Company shall not
be required to
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(i) qualify generally to do business in any jurisdiction or to register as a
broker or dealer in such jurisdiction where it would not otherwise be required
to qualify but for this Agreement, (ii) take any action that would cause it to
become subject to any taxation in any jurisdiction where it would not otherwise
be subject to such taxation or (iii) take any action that would subject it to
the general service of process in any jurisdiction where it is not then so
subject.
3.4 OBLIGATIONS OF THE COMPANY. When the Company is required to
effect the registration of Redemption Shares under the Securities Act pursuant
to Section 3.1 of this Agreement, subject to Section 3.2 hereof, the Company
shall:
(a) prepare and file with the Commission such amendments and
supplements as to the Registration Statement and the Prospectus used in
connection therewith as may be necessary (i) to keep such Registration Statement
effective and (ii) to comply with the provisions of the Securities Act with
respect to the disposition of the Redemption Shares covered by such Registration
Statement, in each case for such time as is contemplated in Section 3.1(a)
above;
(b) furnish, without charge, to the Holder such number of copies of
the Registration Statement, each amendment and supplement thereto (in each case
including all exhibits), and the Prospectus included in such Registration
Statement (including each preliminary Prospectus) in conformity with the
requirements of the Securities Act as the Holder may reasonably request in order
to facilitate the public sale or other disposition of the Redemption Shares
owned by the Holder;
(c) promptly notify the Holder: (i) when the Registration Statement,
any pre-effective amendment, the Prospectus or any prospectus supplement related
thereto or post-effective amendment to the Registration Statement has been
filed, and, with respect to the Registration Statement or any post-effective
amendment, when the same has become effective, (ii) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation or threat of any proceedings for that purpose, and
(iii) of the receipt by the Company of any notification with respect to the
suspension of the qualification of any Redemption Shares for sale under the
securities or "blue sky" laws of any jurisdiction or the initiation of any
proceeding for such purpose;
(d) promptly use commercially reasonable efforts to prevent the
issuance of any order suspending the effectiveness of a Registration Statement,
and, if any such order suspending the effectiveness of a Registration Statement
is issued, shall promptly use commercially reasonable efforts to obtain the
withdrawal of such order at the earliest possible moment;
(e) if the Registrable Securities are of a class of securities that
is listed on a national securities exchange, file copies of any Prospectus with
such exchange in compliance with Rule 153 under the Securities Act so that the
Holder shall benefit from the prospectus delivery procedures described therein;
(f) following receipt of a Registration Notice and thereafter until
the sooner of completion, abandonment or termination of the offering or sale
contemplated thereby and the
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expiration of the period during which the Company is required to maintain the
effectiveness of the related Registration Statement as set forth in Section
3.1(a) above, promptly notify the Holder: (i) of the existence of any fact of
which the Company is aware or the happening of any event which has resulted in
(A) the Registration Statement, as then in effect, containing an untrue
statement of a material fact or omitting to state a material fact required to be
stated therein or necessary to make any statements therein not misleading or (B)
the Prospectus included in such Registration Statement containing an untrue
statement of a material fact or omitting to state a material fact required to be
stated therein or necessary to make any statements therein, in the light of the
circumstances under which they were made, not misleading, and (ii) of the
Company's reasonable determination that a post-effective amendment to the
Registration Statement would be appropriate or that there exist circumstances
not yet disclosed to the public which make further sales under such Registration
Statement inadvisable pending such disclosure and post-effective amendment; and,
if the notification relates to any event described in either of the clauses (i)
or (ii) of this Section 3.4(d), subject to Section 3.2 above, the Company shall
prepare and furnish to the Holder a reasonable number of copies of a supplement
or post-effective amendment to such Registration Statement or related Prospectus
or any document incorporated therein by reference and file any other required
document so that (1) such Registration Statement 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 and
(2) as thereafter delivered to the purchasers of the Redemption Shares being
sold thereunder, such Prospectus shall not include an 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, in the light of the circumstances
under which they were made, not misleading;
(g) use commercially reasonable efforts to cause all such Redemption
Shares to be listed on the national securities exchange on which the Common
Stock is then listed, if the listing of Redemption Shares is then permitted
under the rules of such national securities exchange; and
(h) if requested by the Holder, incorporate in a prospectus
supplement or post-effective amendment such information concerning the Holder or
the intended method of distribution as the Holder reasonably requests to be
included therein and is reasonably necessary to permit the sale of the
Redemption Shares pursuant to the Registration Statement, including, without
limitation, information with respect to the number of Redemption Shares being
sold, the purchase price being paid therefor and any other material terms of the
offering of the Redemption Shares to be sold in such offering; PROVIDED,
HOWEVER, that the Company shall not be obligated to include in any such
prospectus supplement or post-effective amendment any requested information that
is not required by the rules of the Commission and is unreasonable in scope
compared with the Company's most recent prospectus or prospectus supplement used
in connection with a primary or secondary offering of equity securities by the
Company.
3.5 OBLIGATIONS OF THE HOLDER. In connection with any Registration
Statement utilized by the Company to satisfy the Registration Rights pursuant to
this Section 3, the Holder agrees to cooperate with the Company in connection
with the preparation of the Registration Statement, and the Holder agrees that
it will (i) respond within ten (10) Business Days to any
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written request by the Company to provide or verify information regarding the
Holder or the Holder's Registrable Securities (including the proposed manner of
sale) that may be required to be included in such Registration Statement
pursuant to the rules and regulations of the Commission, and (ii) provide in a
timely manner information regarding the proposed distribution by the Holder of
the Registrable Securities and such other information as may be requested by the
Company from time to time in connection with the preparation of and for
inclusion in the Registration Statement and related Prospectus. As used in this
Agreement, a "BUSINESS DAY" is any Monday, Tuesday, Wednesday, Thursday or
Friday other than a day on which banks and other financial institutions are
authorized or required to be closed for business in the State of New York.
SECTION 4. INDEMNIFICATION; CONTRIBUTION
4.1 INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify
and hold harmless the Holder and each person, if any, who controls the Holder
within the meaning of Section 15 of the Securities Act or Section 20 of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and any of
their partners, members, officers, directors, employees or representatives, as
follows:
(i) against any and all loss, liability, claim, damage,
judgment and expense whatsoever, as incurred, arising out of or
based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any
amendment thereto) pursuant to which the Registrable Securities were
registered under the Securities Act, including all documents
incorporated therein by reference, or the omission or alleged
omission therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading or
arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus (or any
amendment or supplement thereto), including all documents
incorporated therein by reference, or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading;
(ii) against any and all loss, liability, claim, damage,
judgment and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue
statement or omission, if such settlement is effected with the
written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including reasonable fees and disbursements of counsel), reasonably
incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, in
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each case whether or not a party, or any claim whatsoever based upon
any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not
paid under subparagraph (i) or (ii) above;
PROVIDED, HOWEVER, that the indemnity provided pursuant to this Section 4.1 does
not apply to the Holder with respect to any loss, liability, claim, damage,
judgment or expense to the extent arising out of (A) any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by the Holder
expressly for use in the Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement thereto), or (B) Holder's failure
to deliver an amended or supplemental Prospectus furnished to the Holder by the
Company, if such loss, liability, claim, damage, judgment or expense would not
have arisen had such delivery occurred.
4.2 INDEMNIFICATION BY HOLDER. Holder (and each permitted assignee
of the Holder, on a several basis) severally and not jointly agrees to indemnify
and hold harmless the Company, and each of its directors and officers (including
each director and officer of the Company who signed a Registration Statement),
and each person, if any, who controls the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage,
judgment and expense whatsoever, as incurred, arising out of or
based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any
amendment thereto) pursuant to which the Registrable Securities of
the Holder were registered under the Securities Act, including all
documents incorporated therein by reference, or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading
or arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in any Prospectus (or
any amendment or supplement thereto), including all documents
incorporated therein by reference, or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading;
(ii) against any and all loss, liability, claim, damage,
judgment and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue
statement or omission, if such settlement is effected with the
written consent of the Holder; and
(iii) against any and all expense whatsoever, as incurred
(including reasonable fees and disbursements of counsel), reasonably
incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, in
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each case whether or not a party, or any claim whatsoever based upon
any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not
paid under subparagraph (i) or (ii) above;
PROVIDED, HOWEVER, that the indemnity provided pursuant to this Section 4.2
shall only apply with respect to any loss, liability, claim, damage, judgment or
expense to the extent arising out of (A) any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Company by the Holder expressly for
use in the Registration Statement (or any amendment thereto) or the Prospectus
(or any amendment or supplement thereto) or (B) Holder's failure to deliver an
amended or supplemental Prospectus furnished to the Holder by the Company, if
such loss, liability, claim, damage or expense would not have arisen had such
delivery occurred. Notwithstanding the provisions of this Section 4.2, Holder
and any permitted assignee shall not be required to indemnify the Company, its
officers, directors or control persons with respect to any amount in excess of
the amount of the total proceeds to the Holder or such permitted assignee, as
the case may be, from sales of the Registrable Securities of the Holder under
the Registration Statement that is the subject of the indemnification claim.
4.3 CONDUCT OF INDEMNIFICATION PROCEEDINGS. An indemnified party
hereunder shall give reasonably prompt notice to the indemnifying party of any
action or proceeding commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify the indemnifying party (i) shall not
relieve it from any liability which it may have under the indemnity agreement
provided in Section 4.1 or 4.2 above, unless and only to the extent it did not
otherwise learn of such action and the lack of notice by the indemnified party
results in the forfeiture by the indemnifying party of substantial rights and
defenses, and (ii) shall not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided under Section 4.1 or 4.2 above. If the indemnifying party so
elects within a reasonable time after receipt of such notice, the indemnifying
party may assume the defense of such action or proceeding at such indemnifying
party's own expense with counsel chosen by the indemnifying party and approved
by the indemnified party, which approval shall not be unreasonably withheld;
PROVIDED, HOWEVER, that the indemnifying party will not settle, compromise or
consent to the entry of any judgment with respect to any such action or
proceeding without the written consent of the indemnified party unless such
settlement, compromise or consent secures the unconditional release of the
indemnified party; and PROVIDED FURTHER, that, if the indemnified party
reasonably determines that a conflict of interest exists where it is advisable
for the indemnified party to be represented by separate counsel or that, upon
advice of counsel, there may be legal defenses available to it which are
different from or in addition to those available to the indemnifying party, then
the indemnifying party shall not be entitled to assume such defense and the
indemnified party shall be entitled to separate counsel at the indemnifying
party's expense. If the indemnifying party is not entitled to assume the defense
of such action or proceeding as a result of the second proviso to the preceding
sentence, the indemnifying party's counsel shall be entitled to conduct the
indemnifying party's defense and counsel for the indemnified party shall be
entitled to conduct the defense of the indemnified party, it being understood
that both such counsel will cooperate with each other to conduct the defense of
such action or proceeding as efficiently as possible. If the indemnifying party
is not so
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entitled to assume the defense of such action or does not assume such defense,
after having received the notice referred to in the first sentence of this
paragraph, the indemnifying party will pay the reasonable fees and expenses of
counsel for the indemnified party. In such event, however, the indemnifying
party will not be liable for any settlement effected without the written consent
of the indemnifying party. If an indemnifying party is entitled to assume, and
assumes, the defense of such action or proceeding in accordance with this
paragraph, the indemnifying party shall not be liable for any fees and expenses
of counsel for the indemnified party incurred thereafter in connection with such
action or proceeding.
4.4 CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Sections 4.1 and 4.2 above is for any reason held to be unenforceable by the
indemnified party although applicable in accordance with its terms, the Company
and the Holder shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by such indemnity agreement
incurred by the Company and the Holder, in such proportion as is appropriate to
reflect the relative fault of the Company on the one hand and the Holder on the
other hand, in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities, or expenses. The relative fault of
the indemnifying party and indemnified party shall be determined by reference
to, among other things, whether the action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact, has been made by, or relates to information supplied by,
the indemnifying party or the indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such action.
The parties hereto agree that it would not be just or equitable if
contribution pursuant to this Section 4.4 were determined by PRO RATA allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 4.4, Holder shall not be required
to contribute any amount in excess of the amount of the total proceeds to the
Holder from sales of the Registrable Securities of the Holder under the
Registration Statement that is the subject of the indemnification claim.
Notwithstanding the foregoing, no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 4.4, each person, if
any, who controls the Holder within the meaning of Section 15 of the Securities
Act shall have the same rights to contribution as the Holder, and each director
of the Company, each officer of the Company who signed a Registration Statement
and each person, if any, who controls the Company within the meaning of Section
15 of the Securities Act shall have the same rights to contribution as the
Company.
SECTION 5. EXPENSES
The Company shall pay all expenses incident to the performance by
the Company of its registration obligations under Sections 2 and 3 above,
including (i) all stock exchange,
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Commission and state securities registration, listing and filing fees, (ii) all
expenses incurred in connection with the preparation, printing and distribution
of any Issuer Registration Statement or Registration Statement and Prospectus,
and (iii) fees and disbursements of counsel for the Company and of the
independent public accountants of the Company. Holder shall be responsible for
the payment of any brokerage and sales commissions, fees and disbursements of
the Holder's counsel, accountants and other advisors, and any transfer taxes
relating to the sale or disposition of the Registrable Securities by the Holder
pursuant to this Agreement.
SECTION 6. RULE 144 COMPLIANCE
The Company covenants that it will use its best efforts to timely
file the reports required to be filed by the Company under the Securities Act
and the Exchange Act so as to enable the Holder to sell the Redemption Shares
pursuant to Rule 144 under the Securities Act. In connection with any sale,
transfer or other disposition by the Holder of any Redemption Shares pursuant to
Rule 144 under the Securities Act, the Company shall cooperate with the Holder
to facilitate the timely preparation and delivery of certificates representing
the Redemption Shares to be sold and not bearing any Securities Act legend, and
enable certificates for such Redemption Shares to be for such number of shares
and registered in such names as Holder may reasonably request at least five (5)
Business Days prior to any sale of Redemption Shares hereunder.
SECTION 7. MISCELLANEOUS
7.1 INTEGRATION; AMENDMENT. This Agreement constitutes the entire
agreement among the parties hereto with respect to the matters set forth herein
and supersedes and renders of no force and effect all prior oral or written
agreements, commitments and understandings among the parties with respect to the
matters set forth herein. Except as otherwise expressly provided in this
Agreement, no amendment, modification or discharge of this Agreement shall be
valid or binding unless set forth in writing and duly executed by each of the
parties hereto.
7.2 WAIVERS. No waiver by a party hereto shall be effective unless
made in a written instrument duly executed by the party against whom such waiver
is sought to be enforced, and only to the extent set forth in such instrument.
Neither the waiver by any of the parties hereto of a breach or a default under
any of the provisions of this Agreement, nor the failure of any of the parties,
on one or more occasions, to enforce any of the provisions of this Agreement or
to exercise any right or privilege hereunder shall thereafter be construed as a
waiver of any subsequent breach or default of a similar nature, or as a waiver
of any such provisions, rights or privileges hereunder.
7.3 ASSIGNMENT; SUCCESSORS AND ASSIGNS. This Agreement and the
rights granted hereunder may not be assigned by the Holder without the written
consent of the Company; PROVIDED, HOWEVER, that the Holder may assign its rights
and obligations hereunder, following at least ten (10) days prior written notice
to the Company, to a permitted transferee in connection with a transfer of some
or all of the Holder's Units in accordance with the terms of the Partnership
Agreement, if such transferee agrees in writing to be bound by all of the
provisions hereof. This Agreement shall inure to the benefit of and be binding
upon all of the parties hereto
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and their respective heirs, executors, personal and legal representatives,
successors and permitted assigns, including, without limitation, any successor
of the Company by merger, acquisition, reorganization, recapitalization or
otherwise.
7.4 NOTICES. All notices called for under this Agreement shall be in
writing and shall be deemed given upon receipt if delivered personally or by
facsimile transmission and followed promptly by mail, or mailed by registered or
certified mail (return receipt requested), postage prepaid, or overnight
delivery service, to the parties at the addresses set forth opposite their
signatures below, or to any other address or addressee as any party entitled to
receive notice under this Agreement shall designate, from time to time, to
others in the manner provided in this Section 7.4 for the service of notices;
PROVIDED, HOWEVER, that notices of a change of address shall be effective only
upon receipt thereof. Any notice delivered to the party hereto to whom it is
addressed shall be deemed to have been given and received on the day it was
received; PROVIDED, HOWEVER, that if such day is not a Business Day, then the
notice shall be deemed to have been given and received on the Business Day next
following such day and if any party rejects delivery of any notice attempted to
be given hereunder, delivery shall be deemed given on the date of such
rejection. Any notice sent by facsimile transmission shall be deemed to have
been given and received on the Business Day next following the transmission.
7.5 SPECIFIC PERFORMANCE. The parties hereto acknowledge that the
obligations undertaken by them hereunder are unique and that there would be no
adequate remedy at law if any party fails to perform any of its obligations
hereunder, and accordingly agree that each party, in addition to any other
remedy to which it may be entitled at law or in equity, shall be entitled to (i)
compel specific performance of the obligations, covenants and agreements of any
other party under this Agreement in accordance with the terms and conditions of
this Agreement and (ii) obtain preliminary injunctive relief to secure specific
performance and to prevent a breach or contemplated breach of this Agreement in
any court of the United States or any State thereof having jurisdiction.
7.6 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 Maryland, but not
including the choice of law rules thereof.
7.7 HEADINGS. Section and subsection headings contained in this
Agreement are inserted for convenience of reference only, shall not be deemed to
be a part of this Agreement for any purpose, and shall not in any way define or
affect the meaning, construction or scope of any of the provisions hereof.
7.8 PRONOUNS. All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine, neuter, singular or plural, as the
identity of the person or entity may require.
7.9 EXECUTION IN COUNTERPARTS. To facilitate execution, this
Agreement may be executed in as many counterparts as may be required. It shall
not be necessary that the signature
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of or on behalf of each party appears on each counterpart, but it shall be
sufficient that the signature of or on behalf of each party appears on one or
more of the counterparts. All counterparts shall collectively constitute a
single agreement. It shall not be necessary in any proof of this Agreement to
produce or account for more than a number of counterparts containing the
respective signatures of or on behalf of all of the parties.
7.10 SEVERABILITY. If fulfillment of any provision of this
Agreement, at the time such fulfillment shall be due, shall transcend the limit
of validity prescribed by law, then the obligation to be fulfilled shall be
reduced to the limit of such validity; and if any clause or provision contained
in this Agreement operates or would operate to invalidate this Agreement, in
whole or in part, then such clause or provision only shall be held ineffective,
as though not herein contained, and the remainder of this Agreement shall remain
operative and in full force and effect.
SIGNATURES ON FOLLOWING PAGE
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed on its behalf as of the date first herein above
set forth.
Address: COMPANY:
1120 Avenue of the Americas NEW PLAN EXCEL REALTY TRUST, INC.
Xxxxx 0000
Xxx Xxxx, XX 00000
Fax No.: (000) 000-0000
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
Address: HOLDER:
000 Xxxx Xxxxx Xxxxxx EIG OPERATING PARTNERSHIP, L.P.
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000-0000
Fax No.: (000) 000-0000
By: HK Holdings, LLC, its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------
Name: Xxxxxx X. Xxxxx
Title: President
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