EXHIBIT 10
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of December 29, 1997 (this
"Agreement"), by and between Xxxxxxxx Properties Trust, a Maryland real estate
investment trust (the "Company"), and Security Capital Preferred Growth
Incorporated, a Maryland corporation (the "Investor").
WHEREAS, pursuant to that certain Series A Preferred Securities
Purchase Agreement, dated as of December 2, 1997 (the "Purchase Agreement"), by
and among the Company, Xxxxxxxx Properties Acquisition Partners, L.P., a
Delaware limited partnership, and the Investor, the Investor has agreed to
acquire 3,773,585 shares of Series A Cumulative Convertible Preferred Shares of
Beneficial Interest, par value $.01 per share, of the Company (the "Preferred
Shares"), all of which may be converted into the Company's common shares of
beneficial interest, par value $.0l per share (the "Common Shares"), pursuant to
the terms of the Preferred Shares; and
WHEREAS, in connection with the Purchase Agreement, the Company has
agreed to register for sale by the Investor and certain transferees, the
Preferred Shares and Common Shares received by the Investor upon conversion of
Preferred Shares (collectively, the "Registrable Shares"); and
WHEREAS, the parties hereto desire to enter into this Agreement to
evidence the foregoing agreement of the Company and the mutual covenants of the
parties relating thereto.
NOW, THEREFORE, in consideration of the foregoing and the covenants of
the parties set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, subject to the terms
and conditions set forth herein, the parties hereby agree as follows:
Section 1. Certain Definitions. In this Agreement the following terms
shall have the following respective meanings:
"Accredited Investor" shall have the meaning set forth in Rule 501 of
the General Rules and Regulations promulgated under the Securities Act.
"Affiliate" shall mean, when used with respect to a specified Person,
another Person that directly, or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with the Person
specified.
"Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder, all as the
same shall be in effect at the relevant time.
"Holders" shall mean (i) the Investor and (ii) each Person holding
Registrable Shares (which term, for purposes of this definition shall include
Common Shares that may be issued upon conversion of outstanding Preferred
Shares) as a result of a transfer or assignment to that Person of Registrable
Shares other than pursuant to an effective registration statement or Rule 144
under the Securities Act.
"Indemnified Party" shall have the meaning ascribed to it in Section
6(c) of this Agreement.
"Indemnifying Party" shall have the meaning ascribed to it in Section
6(c) of this Agreement.
"Person" shall mean an individual, corporation, partnership, estate,
trust, association, private foundation, joint stock company or other entity.
"Piggyback Notice" shall have the meaning ascribed to it in Section
3(a) of this Agreement.
"Piggyback Registration" shall have the meaning ascribed to it in
Section 3(a) of this Agreement.
"Preferred Shares" shall have the meaning ascribed to it in the
recitals to this Agreement.
The terms "Register," "Registered" and "Registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act providing for the sale by the Holders of
Registrable Shares in accordance with the method or methods of distribution
designated by the Holders, and the declaration or ordering of the effectiveness
of such registration statement by the Commission.
"Registrable Shares" shall have the meaning ascribed to it in the
recitals to this Agreement, except that as to any particular Registrable Shares,
once issued such securities shall cease to be Registrable Shares when (a) a
registration statement with respect to the sale of such securities shall have
become effective under the Securities Act and such securities shall have been
disposed of in accordance with such registration statement, or (b) such
securities shall have been sold in accordance with Rule 144 (or any successor
provision) under the Securities Act.
"Registration Expenses" shall mean all out-of-pocket expenses
(excluding Selling Expenses) incurred by the Company in complying with Sections
2, 3 and 4 hereof, including, without limitation, the following: (a) all
registration, filing and listing fees; (b) fees and expenses
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of compliance with federal and state securities or real estate syndication laws
(including, without limitation, reasonable fees and disbursements of counsel in
connection with state securities and real estate syndication qualifications of
the Registrable Shares under the laws of such jurisdictions as the Holders may
reasonably designate); (c) printing (including, without limitation, expenses of
printing or engraving certificates for the Registrable Shares in a form eligible
for deposit with The Depository Trust Company and otherwise meeting the
requirements of any securities exchange on which they are listed and of printing
registration statements and prospectuses), messenger, telephone, shipping and
delivery expenses; (d) fees and disbursements of counsel for the Company; (e)
fees and disbursements of all independent public accountants of the Company
(including without limitation the expenses of any annual or special audit and
"cold comfort" letters required by the managing underwriter); (f) Securities Act
liability insurance if the Company so desires; (g) fees and expenses of other
Persons reasonably necessary in connection with the registration, including any
experts, retained by the Company; (h) fees and expenses incurred in connection
with the listing of the Registrable Shares on each securities exchange on which
securities of the same class or series are then listed; and (i) fees and
expenses associated with any filing with the National Association of Securities
Dealers, Inc. required to be made in connection with the registration statement.
"Registration Request" shall have the meaning ascribed to it in
Section 2(a) of this Agreement.
"Rule 144" shall mean Rule 144 promulgated by the Commission under the
Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations of the Commission thereunder, all as the same
shall be in effect at the relevant time.
"Selling Expenses" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to any sale of Registrable
Shares.
Section 2. Demand Registration.
(a) Upon receipt of a written request (a "Registration
Request"), which shall include a description of such Holders' proposed method of
distribution, delivered not earlier than 120 days prior to the first anniversary
of this Agreement from Holders holding at least 50% of the aggregate of the
number of Registrable Shares then outstanding (but at least 10% of the
Registrable Shares), the Company shall (i) promptly give notice of the
Registration Request to all non-requesting Holders and (ii) prepare and file
with the Commission, within 45 days after its receipt of such Registration
Request a registration statement for the purpose of effecting a Registration of
the sale of all Registrable Shares by the requesting Holders and any other
Holder who requests to have his Registrable Shares included in such registration
statement within 10 days after receipt of notice by such Holder of the
Registration Request. The Company shall use its reasonable best efforts to
effect such Registration within 120 days after its receipt of
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such Registration Request (including, without limitation, the execution of an
undertaking to file post-effective amendments and appropriate qualification
under applicable state securities and real estate syndication laws); and shall
keep such Registration continuously effective until the earlier of (i) in the
case of a registration statement filed pursuant to Rule 415 relating to the
resale of Registrable Shares in open market or block transactions, the third
anniversary of the date hereof, or in the case of other registration statements,
four months, (ii) the date on which all Registrable Shares have been sold
pursuant to such registration statement or Rule 144, and (iii) the date on
which, in the reasonable opinion of counsel to the Holders, all of the
Registrable Shares may be sold in accordance with Rule 144(k); provided,
however, that the Company shall not be obligated to take any action to effect
any such Registration, qualification or compliance pursuant to this Section 2 in
any particular jurisdiction in which the Company would be required to execute a
general consent to service of process in effecting such Registration,
qualification or compliance unless the Company is already subject to service in
such jurisdiction.
Notwithstanding the foregoing, the Company shall have the right (the
"Suspension Right") to defer such filing (or suspend sales under any filed
registration statement or defer the updating of any filed registration statement
and suspend sales thereunder) for a period of not more than 105 days during any
one-year period ending on December 31, if the Company shall furnish to the
Holders a certificate signed by an executive officer or any trustee of the
Company stating that, in the good faith judgment of the Company, it would be
detrimental to the Company and its shareholders to file such registration
statement or amendment thereto at such time (or continue sales under a filed
registration statement) and therefore the Company has elected to defer the
filing of such registration statement (or suspend sales under a filed
registration statement).
(b) The Company shall not be required to effect more than two
(2) Registrations pursuant to this Section 2.
Section 3. Piggyback Registrations.
(a) On and after the Conversion Date (as defined in the Series
A Preferred Articles Supplementary), so long as the Investor and its Affiliates
hold at least 25% of the Registrable Shares, if the Company proposes to register
any of its common equity securities or any securities convertible into its
common equity securities under the Securities Act (other than pursuant to (i) a
registration statement filed pursuant to Rule 415 under the Securities Act, (ii)
a registration on Form S-4 or any successor form, or (iii) an offering of
securities in connection with an employee benefit, share dividend, share
ownership or dividend reinvestment plan) and the registration form to be used
may be used for the registration of Registrable Shares, the Company will give
prompt written notice to all holders of Registrable Shares of its intention to
effect such a registration (each a "Piggyback Notice") and, subject to
subparagraph 3(c) below, the Company will include in such registration all
Registrable Shares with respect to which the Company has received written
requests for inclusion therein within ten days after the date of sending the
Piggyback Notice (a "Piggyback Registration"), unless, if the Piggyback
Registration is not an underwritten offering, the Company in its reasonable
judgement
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determines that, or in the case of an underwritten Piggyback Registration, the
managing underwriters advise the Company in writing that in their opinion, the
inclusion of Registrable Shares would adversely interfere with such offering,
affect the Company's securities in the public markets, or otherwise adversely
affect the Company. Nothing herein shall affect the right of the Company to
withdraw any such registration in its sole discretion.
(b) If a Piggyback Registration is a primary registration on behalf of
the Company and, if the Piggyback Registration is not an underwritten offering,
the Company in its reasonable judgement determines that, or in the case of an
underwritten Piggyback Registration, the managing underwriters advise the
Company in writing that in their opinion, the number of securities requested to
be included in such registration exceeds the number which can be sold in an
orderly manner within a price range acceptable to the Company, the Company will
include in such registration (i) first, the securities the Company proposes to
sell and (ii) second, the Registrable Shares requested to be included in such
Registration and any other securities requested to be included in such
registration, pro rata among the holders of Registrable Shares requesting such
registration and the holders of such other securities on the basis of the number
of Shares requested for inclusion in such registration by each such holder.
(c) If a Piggyback Registration is a secondary registration behalf
of holders of the Company's securities other than the holders of Registrable
Shares, and, if the Piggyback Registration is not an underwritten offering, the
Company determines that, or in the case of an underwritten Piggyback
Registration, the managing underwriters advise the Company in writing that in
their opinion, the number of securities requested to be included in such
registration exceeds the number which can be sold in an orderly manner in such
offering within a price range acceptable to the holders initially requesting
such registration, the Company will include in such registration the securities
requested to be included therein by the holders requesting such registration and
the Registrable Shares requested to be included in such registration, pro rata
among the holders of securities requesting such registration on the basis of the
number of Shares requested for inclusion in such registration by each such
holder.
(d) In the case of an underwritten Piggyback Registration, the Company
will have the right to select the investment banker(s) and manager(s) to
administer the offering. If requested by the underwriters for any underwritten
offerings by Holders, under a registration requested pursuant to Section 2(a),
the Company will enter into a customary underwriting agreement with such
underwriters for such offering, to contain such representations and warranties
by the Company and such other terms as are customarily contained in agreements
of that type. The Holders shall be a party to such underwriting agreement and
may, at their option, require that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement be conditions
precedent to the obligations of Holders. The Holders shall not be required to
make any representations or warranties to or agreement with the Company or the
underwriters other than representations, warranties or agreements regarding the
Holders and the Holders' intended method of distribution and any other
representation or warranties required by law.
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Section 4. Registration Procedures.
(a) The Company shall promptly notify the Holders of the
occurrence of the following events:
(i) when any registration statement relating to the
Registrable Shares or post-effective amendment thereto filed with the
Commission has become effective;
(ii) the issuance by the Commission of any stop order
suspending the effectiveness of any registration statement relating to the
Registrable Shares;
(iii) the suspension of an effective registration
statement by the Company in accordance with the last paragraph of Section
2(a) hereof;
(iv) the Company's receipt of any notification of the
suspension of the qualification of any Registrable Shares covered by a
registration statement for sale in any jurisdiction; and
(v) the existence of any event, fact or circumstance
that results in a registration statement or prospectus relating to
Registrable Shares or any document incorporated therein by reference
containing an untrue statement of material fact or omitting to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading during the distribution of securities.
The Company agrees to use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of any such registration
statement or any state qualification as promptly as possible. The Investor
agrees by acquisition of the Registrable Shares that upon receipt of any notice
from the Company of the occurrence of any event of the type described in Section
4(a)(ii), (iii), (iv) or (v) to immediately discontinue its disposition of
Registrable Shares pursuant to any registration statement relating to such
securities until the Investor's receipt of written notice from the Company that
such disposition may be made.
(b) The Company shall provide to the Holders, at no cost to
the Holders, a copy of the registration statement and any amendment thereto used
to effect the Registration of the Registrable Shares, each prospectus contained
in such registration statement or post-effective amendment and any amendment or
supplement thereto and such other documents as the requesting Holders may
reasonably request in order to facilitate the disposition of the Registrable
Shares covered by such registration statement. The Company consents to the use
of each such prospectus and any supplement thereto by the Holders in connection
with the offering and sale of the Registrable Shares covered by such
registration statement or any
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amendment thereto. The Company shall also file a sufficient number of copies of
the prospectus and any post-effective amendment or supplement thereto with the
New York Stock Exchange, Inc. (or, if the Common Shares are no longer listed
thereon, with such other securities exchange or market on which the Common
Shares are then listed) so as to enable the Holders to have the benefits of the
prospectus delivery provisions of Rule 153 under the Securities Act.
(c) The Company agrees to use its reasonable best efforts to cause the
Registrable Shares covered by a registration statement to be registered with or
approved by such state securities authorities as may be necessary to enable the
Holders to consummate the disposition of such shares pursuant to the plan of
distribution set forth in the registration statement; provided, however, that
the Company shall not be obligated to take any action to effect any such
Registration, qualification or compliance pursuant to this Section 4 in any
particular jurisdiction in which the Company would be required to execute a
general consent to service of process in effecting such Registration,
qualification or compliance unless the Company is already subject to service in
such jurisdiction.
(d) Subject to the Company's Suspension Right, if any event, fact or
circumstance requiring an amendment to a registration statement relating to the
Registrable Shares or supplement to a prospectus relating to the Registrable
Shares shall exist, immediately upon becoming aware thereof the Company agrees
to notify the Holders and prepare and furnish to the Holders a post-effective
amendment to the registration statement or supplement to the prospectus or any
document incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of the Registrable Shares,
the prospectus will not contain an untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading.
(e) The Company agrees to use its reasonable best efforts (including
the payment of any listing fees) to obtain the listing of all Registrable Shares
covered by the registration statement on each securities exchange on which
securities of the same class or series are then listed.
(f) The Company agrees to use its reasonable best efforts to comply
with the Securities Act and the Exchange Act in connection with the offer and
sale of Registrable Shares pursuant to a registration statement, and, as soon as
reasonably practicable following the end of any fiscal year during which a
registration statement effecting a Registration of the Registrable Shares shall
have been effective, to make available to its security holders an earnings
statement satisfying the provisions of Section 11(a) of the Securities Act.
(g) The Company agrees to cooperate with the selling Holders to
facilitate the timely preparation and delivery of certificates representing
Registrable Shares to be sold pursuant to a Registration and not bearing any
Securities Act legend; and enable certificates for such Registrable Shares to be
issued for such numbers of shares and registered in such names as the Holders
may reasonably request at least two business days prior to any sale of
Registrable Shares.
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Section 5. Expenses of Registration. The Company shall pay all
Registration Expenses incurred in connection with the registration,
qualification or compliance pursuant to Sections 2, 3 and 4 hereof. All Selling
Expenses incurred in connection with the sale of Registrable Shares by any of
the Holders shall be borne by the Holder selling such Registrable Shares. Each
Holder shall pay the expenses of its own counsel.
Section 6. Indemnification.
(a) The Company will indemnify each Holder, each Holder's
officers and directors, and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, against all expenses, claims,
losses, damages and liabilities (including reasonable legal expenses), arising
out of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in any registration statement or prospectus relating to
the Registrable Shares, or any amendment or supplement thereto, or based on any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
provided, however, that the Company will not be liable in any such case to the
extent that any such claim, loss, damage, liability or expense arises out of or
is based on any untrue statement or omission or alleged untrue statement or
omission, made in reliance upon and in conformity with information furnished in
writing to the Company by such Holder or underwriter for inclusion therein.
(b) Each Holder will indemnify the Company, each of its
trustees and each of its officers who signs the registration statement, each
underwriter, if any, of the Company's securities covered by such registration
statement, and each person who controls the Company or such underwriter within
the meaning of Section 15 of the Securities Act, against all claims, losses,
damages and liabilities (including reasonable legal fees and expenses) arising
out of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in any such registration statement or prospectus, or any
amendment or supplement thereto, or based on any omission (or alleged omission)
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement or
prospectus, in reliance upon and in conformity with information furnished in
writing to the Company by such Holder for inclusion therein.
(c) Each party entitled to indemnification under this Section
6 (the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, but the
omission to so notify the Indemnifying Party shall not relieve it from any
liability which it may have to the Indemnified Party pursuant to the provisions
of this Section 6 except to the extent of the actual damages suffered by such
delay in notification. The Indemnifying Party shall assume the defense of such
action, including the employment of counsel to be chosen by the Indemnifying
Party to be reasonably satisfactory to the Indemnified Party, and payment of
expenses. The Indemnified Party shall have the right to
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employ its own counsel in any such case, but the legal fees and expenses of such
counsel shall be at the expense of the Indemnified Party, unless the employment
of such counsel shall have been authorized in writing by the Indemnifying Party
in connection with the defense of such action, or the Indemnifying Party shall
not have employed counsel to take charge of the defense of such action or the
Indemnified Party shall have reasonably concluded that there may be defenses
available to it or them which are different from or additional to those
available to the Indemnifying Party (in which case the Indemnifying Party shall
not have the right to direct the defense of such action on behalf of the
Indemnified Party), in any of which events such fees and expenses shall be borne
by the Indemnifying Party. No Indemnifying Party, in the defense of any such
claim or litigation, shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such Indemnified Party of a release from all liability in respect to such
claim or litigation.
(d) If the indemnification provided for in this Section 6 is
unavailable to a party that would have been an Indemnified Party under this
Section 6 in respect of any expenses, claims, losses, damages and liabilities
referred to herein, then each party that would have been an Indemnifying Party
hereunder shall, in lieu of indemnifying such Indemnified Party, contribute to
the amount paid or payable by such Indemnified Party as a result of such
expenses, claims, losses, damages and liabilities in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party on the one
hand and such Indemnified Party on the other in connection with the statement or
omission which resulted in such expenses, claims, losses, damages and
liabilities, as well as any other relevant equitable considerations. 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
Indemnifying Party or such Indemnified Party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and each Holder agree that it would not be
just and equitable if contribution pursuant to this Section were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 6(d).
(e) 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.
(f) In no event shall any Holder be liable for any expenses,
claims, losses, damages or liabilities pursuant to this Section 6 in excess of
the net proceeds to such Holder of any Registrable Shares sold by such Holder.
Section 7. Information to be Furnished by Holders. Each Holder shall
furnish to the Company such information as the Company may reasonably request
and as shall be required in connection with the Registration and related
proceedings referred to in Section 2 or Section 3 hereof. If any Holder fails to
provide the Company with such information within 10
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days of receipt of the Company's request, the Company's obligations under
Section 2 or Section 3 hereof, as applicable, with respect to such Holder or the
Registrable Shares owned by such Holder shall be suspended until such Holder
provides such information.
Section 8. Undertaking to Participate in Underwriting. If the Holders
of at least $20 million of the Registrable Shares shall propose to sell
Registrable Shares in an underwritten public offering, the Company shall make
available members of the management of the Company and its affiliates for
reasonable assistance in selling efforts relating to such offering, to the
extent customary for a public offering (including, without limitation, to the
extent customary, senior management attendance at due diligence meetings with
the underwriters and their counsel and road shows) and shall enter into
underwriting agreements containing usual and customary terms and conditions
reasonably acceptable to the Company for such types of offerings. The Holders
and the Company shall agree upon who shall serve as the managing underwriter of
such offering.
Section 9. Rule 144 Sales.
(a) The Company covenants that it will file the reports
required to be filed by the Company under the Exchange Act, so as to enable any
Holder to sell Registrable Shares pursuant to Rule 144 under the Securities Act.
(b) In connection with any sale, transfer or other disposition
by any Holder of any Registrable Shares pursuant to Rule 144 under the
Securities Act, the Company shall cooperate with such Holder to facilitate the
timely preparation and delivery of certificates representing Registrable Shares
to be sold and not bearing any Securities Act legend, and enable certificates
for such Registrable Shares to be for such number of shares and registered in
such names as the selling Holder may reasonably request at least two business
days prior to any sale of Registrable Shares.
Section 10. Miscellaneous.
(a) Governing Law. This Agreement shall be governed in all
respects by the laws of the State of Maryland.
(b) Entire Agreement. This Agreement constitutes the full and
entire understanding and agreement between the parties with regard to the
subject matter hereof.
(c) Amendment. No supplement, modification, waiver or
termination of this Agreement shall be binding unless executed in writing by the
party to be bound thereby.
(d) Notices, etc. Each notice, demand, request, request for
approval, consent, approval, disapproval, designation or other communication
(each of the foregoing being referred to herein as a notice) required or desired
to be given or made under this Agreement shall be in writing (except as
otherwise provided in this Agreement), and shall be effective and
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deemed to have been received (i) when delivered in person, (ii) when sent by fax
with receipt acknowledged, (iii) five (5) days after having been mailed by
certified or registered United States mail, postage prepaid, return receipt
requested, or (iv) the next business day after having been sent by a nationally
recognized overnight mail or courier service, receipt requested. Notices shall
be addressed as follows: (a) if to the Investor, at the Investor's address or
fax number set forth below its signature hereon, or at such other address or fax
number as the Investor shall have furnished to the Company in writing, or (b) if
to any assignee or transferee of an Investor, at such address or fax number as
such assignee or transferee shall have furnished the Company in writing, or (c)
if to the Company, at the address of its principal executive offices and
addressed to the attention of the President, or at such other address or fax
number as the Company shall have furnished to the Investors or any assignee or
transferee. Any notice or other communication required to be given hereunder to
a Holder in connection with a registration may instead be given to the
designated representative of such Holder.
(e) Counterparts. This Agreement may be executed in any number
of counterparts, each of which may be executed by fewer than all of the parties
hereto (provided that each party executes one or more counterparts), each of
which shall be enforceable against the parties actually executing such
counterparts, and all of which together shall constitute one instrument.
(f) Severability. In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable or void, this Agreement shall continue in full force and
effect without said provision.
(g) Section Titles. Section titles are for descriptive
purposes only and shall not control or alter the meaning of this Agreement as
set forth in the text.
(h) Successors and Assigns. This Agreement shall be binding
upon the parties hereto and their respective successors and assigns.
(i) Remedies. The Company and the Investor acknowledge that
there would be no adequate remedy at law if any party fails to perform any of
its obligations hereunder, and accordingly agree that the Company and each
Holder, in addition to any other remedy to which it may be entitled at law or in
equity, shall be entitled to compel specific performance of the obligations of
another party under this Agreement in accordance with the terms and conditions
of this Agreement in any court of the United States or any State thereof having
jurisdiction.
(j) Attorneys' Fees. If the Company or any Holder brings an
action to enforce its rights under this Agreement, the prevailing party in the
action shall be entitled to recover its costs and expenses, including, without
limitation, reasonable attorneys' fees, incurred in connection with such action,
including any appeal of such action.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
XXXXXXXX PROPERTIES TRUST
By: /s/ XXXXXXX X. XXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President, Treasurer
SECURITY CAPITAL PREFERRED GROWTH
INCORPORATED
By: /s/ XXXXX XXXXXXXXX
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
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