Exhibit 10.1
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT ("Agreement") is entered into as of
the 26th day of August, 1998 by and among XXXXXXXX PROPERTIES ACQUISITION
PARTNERS, L.P., a Delaware limited partnership (the "Partnership"), XXXXXXXX
PROPERTIES TRUST, a Maryland real estate investment trust ("the Company"),
XXXXXXXX PROPERTIES I, INC., a Delaware corporation and sole general partner of
the Partnership (the "General Partner"), and the limited partners listed on
Exhibit A hereto (the "Limited Partners"). The Limited Partners and their
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permitted transferees and assignees are herein referred to individually as a
"Holder" and collectively, as "Holders".
RECITALS:
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WHEREAS, pursuant to the Second Amended and Restated Agreement of Limited
Partnership of Xxxxxxxx Properties Acquisition Partners, L.P., dated October 22,
1996 as amended through the date hereof (the "Partnership Agreement"), the
Limited Partners have contributed to the capital of the Partnership interests in
certain assets in exchange for the units of limited partnership interest in the
Partnership as set forth on Exhibit A hereto (the "Partnership Units");
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WHEREAS, the parties hereto desire to set forth certain rights of the Limited
Partners as holders of the Partnership Units;
NOW, THEREFORE, for and in consideration of the mutual promises and agreements
contained in this Agreement, the parties hereto mutually agree as follows:
AGREEMENT
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ARTICLE I
DEFINITIONS
Capitalized terms not otherwise defined when first used herein shall have the
meanings set forth in the Partnership Agreement.
ARTICLE II
SHELF REGISTRATION
2.1. Shelf Registration. The Company agrees to file with the Commission a
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shelf registration statement pursuant to Rule 415 of the Securities Act, or
similar rule that may be adopted by the Commission (the "Shelf Registration"),
at a time and in a manner reasonably designed to cause the Shelf Registration to
be declared effective by the Commission for the issuance and resale of shares
within either two (2) weeks prior to, or
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two (2) weeks after, the first anniversary of the date of this Agreement, with
respect to the initial issuance by the Company and resale of at least the number
of REIT Shares issuable to the Limited Partners upon redemption of the
Partnership Units (the "Exchange Shares"). The Company will use its reasonable
best efforts to cause the Shelf Registration to be declared effective under the
Securities Act as soon as reasonably possible after filing. The Company will use
its reasonable efforts to keep the Shelf Registration continuously effective
until the earlier of (a) the date when all of the Exchange Shares covered
thereby are issued or sold thereunder, (b) the date on which all Limited
Partners then holding Partnership Units agree to the withdrawal of the
Registration Statement or (c) the first date on which all of the Exchange Shares
covered thereby could, in the opinion of counsel for the Company, be sold in any
three month period pursuant to Rule 144 under the Securities Act or any
successor rule thereto (the "Shelf Registration Period"); provided that if at
such time applicable law or the Commission's interpretation thereof, does not
permit the registration of such issuance pursuant to Rule 415, then "Shelf
Registration" shall relate to the resale rather than the issuance of Exchange
Shares. The Company further agrees to supplement or make amendments to the Shelf
Registration, if required by the rules, regulations, or instructions applicable
to the registration form utilized by the Company or by the Securities Act or
rules and regulations thereunder for the Shelf Registration. In addition, the
Company agrees to file any additional Shelf Registration as may be necessary
from time to time to register additional Exchange Shares issuable as a result of
any change in the Conversion Ratio. No provision of this Agreement shall require
the Company to file a registration statement on any form other than Form S-3 or
a successor form thereto.
2.2. Registration and Qualification Procedures. The Company will:
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(a) Use its reasonable best efforts to cause the Shelf Registration to
be declared effective by the Commission as soon after filing as reasonably
possible;
(b) Use its reasonable best efforts to keep the Shelf Registration
effective and the related prospectus current throughout the Shelf Registration
Period;
(c) Furnish to each Limited Partner such numbers of copies of the
relevant prospectuses, and supplements or amendments thereto, and such other
related documents as such party reasonably requests;
(d) Use its reasonable best efforts to register or qualify the
securities covered by the Shelf Registration under applicable state securities
or blue sky laws; provided, however, that the Company shall not be required to
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(i) qualify as a foreign corporation or consent to a general and unlimited
service of process in any jurisdiction in which it would not otherwise be
required to be qualified or so consent or (ii) qualify as a dealer in
securities.
2.3. Allocation of Expenses. The Partnership or the Company shall pay all
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expenses in connection with the Shelf Registration, including, without
limitation (a) Commission registration fees, (b) printing expenses, (c)
accounting and legal fees and expenses for the Company and the Partnership (but
not the fees and expenses of an accountant or attorney engaged by any Limited
Partner) and (d) expenses of complying with applicable securities or blue sky
laws in connection with the Shelf Registration; provided, however, neither the
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Partnership nor the Company shall be liable for (i) any discounts or commissions
to any broker attributable to any sale of Exchange Shares, or (ii) any fees or
expenses incurred by holders of Exchange Shares in connection with such
registration which, according to the written instructions of any regulatory
authority, the Partnership or the Company is not permitted to pay.
2.4. Indemnification. In connection with the Shelf Registration, the
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Company, the General Partner, and the Partnership agree to indemnify holders of
Partnership Units and Exchange Shares in accordance with the provisions of
Article III hereof.
2.5. Listing on Securities Exchange. The Company will, at its expense, list
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and maintain the listing on the NYSE of the Exchange Shares registered pursuant
to this Article II.
ARTICLE III
INDEMNIFICATION
3.1. Indemnification by the Company, the General Partner, and the
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Partnership. The Company, the General Partner, and the Partnership agree to
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indemnify and hold harmless the Limited Partners, the directors and officers of
any corporate Limited Partner, and each Person (if any) who controls a corporate
Limited Partner within the meaning of Section 15 of the Securities Act, against
any and all losses, claims, damages, or liabilities to which they or any of them
may become subject under the Securities Act or any other statute or common law,
including any amount paid in settlement of any litigation, commenced or
threatened, if such settlement is effected with the written consent of the
Company, and to reimburse them for any legal or other expenses incurred by them
in connection with investigating any claims and defending any actions, insofar
as any such losses, claims, damages, liabilities, or actions arise out of or are
based upon (a) any untrue statement or alleged untrue statement of a material
fact contained in the registration statement filed hereunder to register the
Exchange Shares or any post-effective amendment thereto or in any filing made in
connection with the qualification of the offering under blue sky or other
securities laws of jurisdictions in which the Exchange Shares are offered (a
"Blue Sky Filing"), or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading, or (b) any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus, if used prior to the
effective date of such registration statement, or contained in the final
prospectus (as amended or supplemented if the Company shall have filed with the
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Commission any amendment thereof or supplement thereto) if used within the
period during which the Company is required to keep the registration statement
to which such prospectus relates current, or the omission or alleged omission to
state therein (if so used) a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading; provided, however, that the indemnification agreement contained
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in this Section 3.1 shall not apply to such losses, claims, damages,
liabilities, or actions arising out of, or based upon, any such untrue statement
or alleged untrue statement, or any such omission or alleged omission, if such
statement or omission was made in reliance upon and in conformity with
information furnished to the Company by the Limited Partners or by an
underwriter specifically for use in connection with preparation of the
registration statement, any preliminary prospectus or final prospectus contained
in the registration statement, any such amendment or supplement thereto or any
Blue Sky Filing.
3.2. Indemnification Procedures.
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(a) Each indemnified party shall, with reasonable promptness after its
receipt of written notice of the commencement of any action against such
indemnified party in respect of which indemnity may be sought from an
indemnifying party on account of an indemnity agreement contained herein, notify
the indemnifying party in writing of the commencement thereof.
(b) The omission to notify the indemnifying party shall not relieve it
from any liability which it may have to any indemnified party unless the failure
to give notice materially adversely affects the ability of the indemnifying
party to defend a claim which is the subject of indemnification hereunder (in
which case the indemnifying party shall be relieved of its obligation only to
the extent of offsetting any loss, damage, or liability it suffers as a
consequence of the failure against its monetary obligation to the indemnified
party).
(c) In case any such action shall be brought against any indemnified
party and the indemnified party shall so notify an indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and to the extent it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party 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
hereunder for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation, except as provided below.
(d) The indemnified party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such
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counsel shall be paid by the indemnified party unless (i) the indemnifying party
agrees to pay the same, (ii) the indemnifying party fails to assume the defense
of such action with counsel reasonably satisfactory to the indemnified party,
(iii) the named parties to any such action (including any impleaded parties)
have been advised by such counsel that representation of such indemnified party
and the indemnifying party by the same counsel would be inappropriate under
applicable standards of professional conduct (in which case the indemnifying
party shall not have the right to assume the defense of such action on behalf of
such indemnified party), or (iv) the defendants in such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be one or more legal defenses available
to it and and/or other indemnified parties which are different from, or
additional to, those available to the indemnifying party. No indemnifying party
shall be liable for any settlement entered into without its consent.
(e) The indemnity agreements contained herein shall be in addition to
any liabilities which the indemnifying party may have pursuant to law.
3.3. Contribution.
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(a) If for any reason the indemnification provisions contemplated
herein are either unavailable or insufficient to hold harmless an indemnified
party in respect of any losses, claims, damages, or liabilities referred to
therein, then the party that otherwise would be required to provide
indemnification or the indemnifying party (in either case, for purposes of this
section, the "Indemnifying Party") in respect of such losses, claims, damages,
or liabilities, shall contribute to the amount paid or payable by the party that
would otherwise be entitled to indemnification or the indemnified party (in
either case, for purposes of this section, the "Indemnified Party") as a result
of such losses, claims, damages, liabilities, or expense, in such proportion as
is appropriate to reflect the relative fault of the Indemnifying Party and the
Indemnified Party, as well as any other relevant equitable considerations. The
relative fault of the Indemnifying Party and Indemnified Party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact related to information supplied by the Indemnifying Party or
Indemnified Party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities, and expenses referred to above shall be deemed to include
any legal or other fees or expenses reasonably incurred by such party.
(b) The parties hereto agree that it would not be just and equitable
if contribution pursuant to this section were determined by pro rata allocation
(even if the holders or any underwriters or all of them were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. No person or entity
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determined to have committed a fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person or entity who was not guilty of such fraudulent misrepresentation.
ARTICLE IV
GENERAL
4.1. Notices. All notices, requests, demands and other communications
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hereunder shall be in writing and shall be delivered by hand, transmitted by
facsimile transmission, or sent prepaid by international courier, to the Limited
Partners at their addresses as mentioned on the books of the Partnership.
Notices of the Company, the Partnership and the General Partner shall be
delivered at or mailed to Xxxxxxxx Properties I, Inc., 0000 Xxxx Xxxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000. The Company, the Partnership and the
General Partner may specify a different address by written notice to the Limited
Partners. Any Limited Partners may specify a different address by written notice
to the Company. Any notice, request, demand or other communication delivered or
sent in the manner aforesaid shall be deemed given or made (as the case may be)
when delivered by hand or confirmed by facsimile transmission, or, in the case
of delivery by courier, when actually delivered to the address of the intended
recipient.
4.2. Entire Agreement. This Agreement and exhibits attached hereto
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constitute the entire agreement of the parties and supersede all prior written
agreements and prior and contemporaneous oral agreements, understandings and
negotiations with respect to the subject matter hereof.
4.3. Pronouns and Plurals. When the context in which words are used in this
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Agreement indicates that such is the intent, words in the singular number shall
include the plural and the masculine gender shall include the neuter or female
gender as the context may require.
4.4. Headings. The article headings or sections in this Agreement are for
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convenience only and shall not be used in construing the scope of this Agreement
or any particular article.
4.5. Counterparts. This Agreement may be executed in several counterparts,
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each of which shall be deemed to be an original copy and all of which together
shall constitute one and the same instrument binding on all parties hereto,
notwithstanding that all parties shall not have signed the same counterpart.
4.6. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of New York.
4.7. Assignment and Confirmation. This Agreement may be assigned by a
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Limited Partner only upon the written consent of the Company, except that this
Agreement may be assigned without such consent to the transferee in a transfer
permitted in writing by the Partnership. It shall be a condition to any Person
succeeding to the rights of a Limited Partner as permitted herein that such
Person, if requested by the Company, execute a counterpart to this Agreement and
become a party hereto.
4.8. Amendment. This Agreement may be amended by written agreement
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executed by the Company, the General Partner, the Partnership and the Limited
Partner to whom the amendment shall apply.
4.9. Authority: Binding Effect. Each party hereto represents and warrants
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to the other parties that it has the full legal right, power and authority to
execute this Agreement, that this Agreement has been duly authorized, executed
and delivered on behalf of such party and constitutes a valid and binding
agreement of such party enforceable in accordance with its terms.
4.10. Counterparts. This Agreement may be executed in several counterparts,
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each of which shall be deemed an original, but such counterparts shall together
constitute but one and the same Agreement.
4.11. Apportion of Agreement. This Agreement shall apply only to the
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Partnership Units listed on Exhibit A and the Exchange Shares issuable in
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respect thereof.
IN WITNESS WHEREOF, each party has duly executed this Agreement as of the
day and year first above written.
XXXXXXXX PROPERTIES TRUST, a
Maryland real estate investment trust
By: /s/ J. Xxxxx Xxxxxxx
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Name: J. Xxxxx Xxxxxxx
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Title: Vice President
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XXXXXXXX PROPERTIES ACQUISITION
PARTNERS, L.P.
By: XXXXXXXX PROPERTIES I, INC., its
general partner
By: /s/ J. Xxxxx Xxxxxxx
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Name: J. Xxxxx Xxxxxxx
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Title: Vice President
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LIMITED PARTNERS
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
/s/ Xxxxxxxxxxx X. Xxxxxx
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Xxxxxxxxxxx X. Xxxxxx
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EXHIBIT A TO REGISTRATION RIGHTS AGREEMENT
LIMITED PARTNERSHIP UNITS
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XXXXX X. XXXXXX: 10,063 UNITS
XXXXXXXXXXX X. XXXXXX: 10,063 UNITS
EXHIBIT B TO REGISTRATION RIGHTS AGREEMENT
NOTICE OF EXERCISE OF REDEMPTION RIGHT
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The undersigned hereby irrevocably (i) presents for redemption ________
units of limited partnership interest ("Units") in Xxxxxxxx Properties
Acquisition Partners, L.P. (the "Partnership") in accordance with the terms of
the Registration Rights Agreement, dated __________, 1998 ("Agreement") and the
"Exchange Right" referred to in Section 8.05 of the Second Amended and Restated
Agreement of Limited Partnership of the Partnership (the "Partnership
Agreement"), (ii) surrenders such Units and all right, title and interest
therein, (iii) surrenders herewith any certificate or other writing evidencing
the Units (and requests that any Units so evidenced that are not redeemed be
evidenced by the issuance of a new certificate or writing) and (iv) directs that
the "Cash Amount" or "REIT Shares Amount" (as determined by the General
Partner), as defined in the Agreement, deliverable upon exercise of the
Redemption Rights be delivered to the address specified below, and if REIT
Shares are to be delivered, such Company Shares be registered or placed in the
name(s) and at the address(es) specified below.
Dated:________ __, _____
Name of Limited Partner:
___________________________________
(Signature of Limited Partner)
___________________________________
(Mailing Address)
___________________________________
(City) (State) (Zip Code)
Signature Guaranteed by:
___________________________________
If REIT Shares are to be issued, issue to:
____________________________________
____________________________________
____________________________________
Please insert social security or identifying number:
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