Exhibit 10.2.8
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
and entered into as of February 23, 1999, between COLONIAL PROPERTIES TRUST, an
Alabama real estate investment trust (the "Company"), BELCREST REALTY
CORPORATION, a Delaware corporation ("Belcrest") and BELAIR REAL ESTATE
CORPORATION, a Delaware corporation ("Belair"; Belcrest and Belair are
collectively referred to herein as the "Contributors").
This Agreement is made in connection with the private sale of
8.875% Series B Cumulative Redeemable Perpetual Preferred Units (the "Series B
Preferred Units") of partnership interest in COLONIAL REALTY LIMITED
PARTNERSHIP, a Delaware limited partnership (the "Operating Partnership")
pursuant to (i) that certain Contribution Agreement, dated as of February 23,
1999, between Belcrest, the Company and the Operating Partnership, in which the
Company holds the sole general partnership interest, and (ii) that certain
Contribution Agreement, dated as of February 23, 1999, between Belair, the
Company and the Operating Partnership. The foregoing contribution agreements are
collectively referred to herein as the "Contribution Agreements." The Series B
Preferred Units may be exchanged for shares of 8.875% Series B Cumulative
Redeemable Perpetual Preferred Shares of Beneficial Interest (the "Preferred
Shares"), par value $.01 per share, of the Company, pursuant to the terms of the
Series B Preferred Units (any such exchange, an "Exchange"). To induce each of
the Contributors to enter into the Contribution Agreements, the Company has
agreed to register for sale by the Contributors and the Holders the Registrable
Securities and to provide the Contributors with certain registration rights set
forth herein. The execution of this Agreement is a condition to the closing
under each of the Contribution Agreements.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions.
As used in this Agreement, the following capitalized defined
terms shall have the following meanings:
"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.
"Belair" shall have the meaning set forth in the preamble.
"Belcrest" shall have the meaning set forth in the preamble.
"Closing Date" shall mean the date of closing of the Company's
sale of Series B Preferred Units to the Contributors.
"Company" shall have the meaning set forth in the preamble and
shall also include the Company's successors or other parties who succeed to the
Company's obligations hereunder.
"Contribution Agreements" shall have the meaning set forth in
the preamble.
"Contributors" shall have the meaning sets forth in the
preamble and shall include their successors and permitted assigns.
"Exchange" shall have the meaning set forth in the preamble.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and any successor statute thereto, and the rules and regulations of
the SEC thereunder, all as the same shall be in effect at the relevant time.
"Holder" shall mean (i) either of the Contributors or (ii) any
Person holding Registrable Securities as a result of a transfer or assignment of
Registrable Securities to that Person other than pursuant to an effective
registration statement or Rule 144 under the Securities Act, in each case where
securities sold in such transaction may be resold in a public distribution
without subsequent registration under the Securities Act, and together the
entities described in clauses (i) and (ii) hereof shall be "Holders".
"Indemnified Party" shall have the meaning set forth in
Section 7(c) hereof.
"Indemnifying Parance, if the Company so desires; and (vii)
fees and expenses of other Persons reasonably necessary in connection with the
Registration retained by the Company, including any experts, transfer agent or
registrar.
"Registration Request" shall have the meaning set forth in
Section 2(b) hereof.
"Registration Statement" shall mean a registration statement
of the Company and any other person required to be a registrant with respect to
such registration statement pursuant to the requirements of the Securities Act,
which covers the resale of all of the Registrable Securities on an appropriate
form under Rule 415 under the Securities Act, or any similar rule that may be
adopted by the SEC, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"SEC" shall mean the Securities and Exchange Commission or
any successor federal agency.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and any successor statute thereto, and the rules and regulations of the
SEC thereunder, all as the same shall be in effect at the relevant time.
"Series B Preferred Units" shall have the meaning therefor set
forth in the preamble hereof.
"Underwriter" means a securities dealer who purchases any
Registrable Securities as principal and not as part of such dealer's
market-making activities.
"Underwritten Offering" shall mean a sale of securities of the
Company to an underwriter or underwriters for reoffering to the public.
2. Registration Under the Securities Act.
(a) Demand Registration. Upon receipt of a written request (a "Registration
Request"), which shall include a description of such Holders' proposed method of
distribution (which method may also include an Underwritten Offering by a
nationally recognized Underwriter selected by the Company and reasonably
acceptable to the Registering Holders) from Holders holding Registrable
Securities having an aggregate expected offering price of at least $15,000,000
(or all remaining Registrable Securities if all such remaining Registrable
Securities shall have an aggregate expected offering price of less than
$15,000,000), the Company shall (i) promptly give notice of the Registration
Request to all non-requesting Holders and (ii) prepare and file with the SEC,
within sixty (60) days after receipt of such Registration Request, a
Registration Statement for the sale of all Registrable Securities held by the
requesting Holders and any other Holder who makes a written request of the
Company to have her or his Registrable Securities included in such Registration
Statement, which written request must be received by the Company within ten (10)
days after such Holder receives the Registration Request (all of such Holders,
collectively, the "Registering Holders"). Upon receipt of such written request,
the Company shall use its best efforts to cause such Registration Statement to
be declared effective within one hundred twenty (120) days after receipt of a
Registration Request. The Company shall keep such Registration Statement
continuously effective until the date on which all Registrable Securities have
been sold pursuant to such Registration Statement or are eligible for resale
under Rule 144 without regard to holding periods or volume limitations.
(b) Expenses. The Company shall pay all Registration Expenses in
connection with any registration undertaken pursuant to Section 2(a) hereof. If
the Company at any time agrees (an "Other Agreement") to pay for or reimburse
the legal fees and expenses of any holder(s) of any equity securities of the
Company incurred in connection with one or more registrations of such securities
pursuant to such Other Agreement (including, without limitation, in connection
with compliance with federal or state securities or blue sky laws), then (i) the
Company shall pay or reimburse to the Contributors their reasonable legal fees
and expenses in connection with an equal number of registrations under this
Agreement, up to the amount agreed to be paid or reimbursed by the Company
pursuant to such Other Agreement (it being agreed that, if the Company enters
into more than one Other Agreement, the Contributors' rights under this Section
2(b)(i) shall be determined by reference to the Other Agreement that is most
favorable to the Contributors) and (ii) Registration Expenses shall include such
expenses. The Holder shall pay all underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to the Registration Statement.
3. Hold-Back Agreement.
Each Holder of Registrable Securities shall agree not to
effect any public sale or distribution of securities of the Company of the same
or similar class or classes of the securities included in the Registration
Statement or any securities convertible into or exchangeable or exercisable for
such securities, including a sale pursuant to Rule 144 or Rule 144A under the
Securities Act, during such periods as reasonably requested by the Underwriter
in an underwritten public offering by the Company; provided that no Holder shall
be so obligated under this Section 3 in the event that any such period requested
by the Underwriter is longer than ninety (90) days and or occurs more than once
in any twelve (12) month period.
4. Registration Procedures.
In connection with the obligations of the Company with respect
to a Registration Statement pursuant to Section 2(a) hereof, the Company shall
use all commercially reasonable efforts to effect or cause to be effected the
registration of the Registrable Securities under the Securities Act to permit
the sale of such Registrable Securities by the Holder in accordance with its
intended method or methods of distribution, and the Company shall:
(a) prepare and file with the SEC, as specified in Section 2 hereof, a
Registration Statement, which Registration Statement shall comply as to form in
all material respects with the requirements of the applicable form and include
all financial statements required by the SEC to be filed therewith, and use its
best efforts to cause such Registration Statement to become effective and remain
effective in accordance with Section 2 hereof;
(b) subject to Section 4(j) hereof, prepare and file with the SEC
such amendments and post-effective amendments to each such Registration
Statement as may be necessary to keep such Registration Statement effective for
the applicable period; cause each such Prospectus to be supplemented by any
required prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 or any similar rule that may be adopted under the Securities Act; and
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by each Registration Statement during the applicable
period in accordance with the intended method or methods of distribution by the
selling Holder thereof;
(c) furnish to the Holder of Registrable Securities without
charge, as many copies of each Prospectus, including each or summary prospectus
preliminary Prospectus, and any amendment or supplement thereto and such other
documents as such Holder may reasonably request, in order to facilitate the
public sale or other disposition of the Registrable Securities; the Company
consents to the use of any such Prospectus, including each preliminary
Prospectus, by the Holder of Registrable Securities, if any, in connection with
the offering and sale of the Registrable Securities covered by any such
Prospectus;
(d) use its best efforts to register or qualify, or obtain exemption from
registration or qualification for, all Registrable Securities by the time the
applicable Registration Statement is declared effective by the SEC under all
applicable state securities or "blue sky" laws of such jurisdictions as the
Holder of Registrable Securities covered by a Registration Statement shall
reasonably request in writing, keep each such registration or qualification or
exemption effective during the period such Registration Statement is required to
be kept effective and do any and all other acts and things which may be
reasonably necessary or advisable to enable such Holder to consummate the
disposition in each such jurisdiction of such Registrable Securities owned by
such Holder; provided, however, that the Company shall not be required to (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 Section 4(d), (ii) subject itself to taxation in any such
jurisdiction, or (iii) submit to the general service of process in any such
jurisdiction;
(e) notify the Holder of Registrable Securities promptly and,
if requested by such Holder, confirm such advice in writing (i) when a
Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of the issuance by the
SEC or any state securities authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any proceedings
for that purpose, and (iii) of the happening of any event during the period a
Registration Statement is effective as a result of which such Registration
Statement or the 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 not misleading, and (iv) of the
Company's receipt of any notification of the suspension of the qualification of
any Registrable Securities covered by a Registration Statement for sale in any
jurisdiction; in the event the Company shall give notice as to the occurrence of
any event described Sections 4(e)(ii), 4(e)(iii) or 4(e)(iv) hereof, the Company
shall extend the period during which such Registration Statement shall be
maintained effective by the number of days during the period from and including
the date of the giving of such notice to the date the Company delivers notice
that disposition may be made;
(f) furnish to the Holder of Registrable Securities copies of any request
by the SEC or any state securities authority of amendments of supplements to a
Registration Statement and Prospectus or for additional information;
(g) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement at the
earliest possible moment;
(h) provide to the Holders, at no cost to such Holders, a copy of the
Registration Statement and any amendment thereto with respect to Registrable
Securities, each Prospectus contained in such Registration Statement or
post-effective amendment and any amendment or supplement thereto and such other
documents as such Holders may reasonably request in order to facilitate the
disposition of their Registrable Securities covered by such Registration
Statement; the Company consents to the use of each such Prospectus and any
supplement thereto by such Holders in connection with the offering and sale of
their Registrable Securities covered by such Registration Statement or any
amendment thereto;
(i) upon the occurrence of any event contemplated by Section
4(e)(iii) hereof, immediately notify all Holders of the Registrable Securities
affected by such event of such event and prepare and provide to such Holders a
supplement or post-effective amendment to a Registration Statement or the
related Prospectus or any document incorporated therein by reference and file
any required document so that, as thereafter delivered to the purchasers of the
Registrable Securities, such Prospectus will 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, in the light of the circumstances
under which they were made, not misleading;
(j) make available for inspection by representatives of the Holder of the
Registrable Securities and any Underwriters participating in any disposition
pursuant to a Registration Statement and any special counsel or accountant
retained by such Holders or Underwriters, all financial and other records,
pertinent corporate documents and properties of the Company and cause the
respective officers, trustees and employees of the Company to supply all
information reasonably requested by any such representative, Underwriter,
special counsel or accountant in connection with a Registration Statement;
provided, however, that such records, documents or information which the Company
determines, in good faith, to be confidential and notifies such representatives,
Underwriters ' special counsel or accountants are confidential shall not be
disclosed by the representatives, underwriters special counsel or accountants
unless (i) the disclosure of such records, documents or information is necessary
to avoid or correct a misstatement or omission in a Registration Statement, (ii)
the release of such records, documents or information is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction, or (iii) such
records, documents or information have been generally made available to the
public;
(k) use all commercially reasonable efforts (including, without limitation,
seeking to cure any deficiencies (within the Company's control) cited by such
exchange or market in the Company's listing application) to list all Registrable
Securities on The New York Stock Exchange (unless the Company qualifies and
chooses to list all Registrable Securities on the American Stock Exchange or The
NASDAQ National Market, in which event the Company shall use its best efforts to
list all Registrable Securities on the American Stock Exchange or The NASDAQ
National Market);
(l) provide a CUSIP number for all Registrable Securities, not
later than the effective date of the Registration Statement;
(m) comply with the Securities Act and the Exchange Act in
connection with the offer and sale of the Registrable Securities to be sold
pursuant to a Registration Statement, and shall use all commercially reasonable
efforts to make available to its security holders, as soon as reasonably
practicable, an earnings statement covering at least twelve (12) months which
shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder;
(n) provide and cause to be maintained a transfer agent for all
Registrable Securities covered by such Registration Statement from and after a
date not later than the effective date of such Registration Statement;
(o) cooperate with the Holders to facilitate the timely preparation and
delivery of certificates representing their Registrable Securities to be sold
pursuant to a Registration Statement and not bearing any Securities Act legend;
and enable certificates for such Registrable Securities be issued for such
numbers of shares and registered in such names as such Holders may reasonably
request at least two (2) business days prior to any sale of their Registrable
Securities;
(p) enter into customary agreements (including an underwriting
agreement or securities sales agreement, if any, in customary form) containing
such representations and warranties to the Holders of such Registrable
Securities and the Underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in similar underwritten offerings as
may be reasonably requested by them and take such other actions as are
reasonably required in order to expedite or facilitate the disposition of such
Registrable Securities; and
(q) furnish to each Registering Holder and to each Underwriter,
if any, a signed counterpart, addressed to such Registering Holder or
Underwriter, of (i) an opinion or opinions of counsel to the Company and (ii) a
comfort letter or comfort letters from the Company's independent public
accountants (to the extent permitted by the standards of the American Institute
of Certified Public Accountants), each in customary form and covering such
matters of the type customarily covered by opinions or comfort letters, as the
case may be, as the Holders of a majority of the Registrable Securities included
in such offering or the managing Underwriter or Underwriters therefor reasonably
request.
The Company may require the Holder of Registrable Securities
to furnish to the Company in writing such information regarding the proposed
distribution by such Holder of such Registrable Securities as the Company may
from time to time reasonably request in writing.
The Holders agree that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 4(e)(iii)
hereof, such Holder will immediately discontinue disposition of Registrable
Securities pursuant to a Registration Statement until such Holders' receipt of
the copies of the supplemented or amended Prospectus, if so directed by the
Company, such Holders will deliver to the Company (at the expense of the
Company) all copies in its possession, other than permanent file copies then in
such Holders' possession, of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice.
5. Black-Out Period.
(a) Following the effectiveness of a Registration Statement (and the
filings with any state securities commissions), the Company may direct the
Holder to suspend sales of the Registrable Securities for such times as the
Company reasonably may determine is necessary and advisable, including the
following events (each, a "Suspension Event"): (i) an underwritten primary
offering by the Company where the Company is advised by the underwriters for
such offering that sale of Registrable Shares under the Registration Statement
would have a material adverse effect on the primary offering, or (ii) pending
negotiations relating to, or consummation of, a transaction or the occurrence of
an event (x) that would require additional disclosure of material information by
the Company in the Registration Statement (or such filings), (y) as to which the
Company has a bona fide business purpose for preserving confidentiality or (z)
which renders the Company unable to comply with SEC requirements, in each case
under circumstances that would make it impractical or inadvisable to cause the
Registration Statement (or such filings) to become effective or to promptly
amend or supplement the Registration Statement on a post-effective basis, as
applicable.
(b) In the event of a Suspension Event, the Company may give notice (a
"Suspension Notice") to the Holder to suspend sales of the Registrable Shares so
that the Company may correct or update the Registration Statement (or such
filings); provided, however, that such suspension shall continue only for so
long as the Suspension Event or its effect is continuing. The Holder agrees that
it will not effect any sales of the Registrable Shares pursuant to such
Registration Statement (or such filings) at any time after it has received a
Suspension Notice from the Company. If so directed by the Company, Holder will
deliver to the Company all copies of the Prospectus covering the Registrable
Shares held by them at the time of receipt of the Suspension Notice. The Holder
may recommence effecting sales of the Registrable Shares pursuant to the
Registration Statement (or such filings) following further notice to such effect
(an "End of Suspension Notice") from the Company, which End of Suspension Notice
shall be given by the Company promptly following the conclusion of any
Suspension Event and the effectiveness of any required amendment or supplement
to be the Registration Statement.
(c) Notwithstanding the provisions of Sections 5(a) and 5(b) to the
contrary: (i) no Holder shall be subject to the provisions of Sections 5(a) and
5(b) hereof for a period of time in excess of sixty (60) days; and (ii) no
Suspension Notice may be given more than twice in any twelve (12) month period.
Moreover, notwithstanding Section 2(a) hereof, if the Company shall give a
Suspension Notice pursuant to this Section 5, the Company agrees it shall extend
the period during which the Registration Statement shall be maintained effective
pursuant to this Agreement by the number of days during the period from the date
of the giving of the Suspension Notice to and including the date when the
Holders shall have received the End of Suspension Notice and copies of the
supplemented or amended Prospectus necessary to resume sales.
6. Rule 144 and Rule 144A.
For so long as the Company is subject to the reporting
requirements of Section 13 or 15 of the Exchange Act, the Company covenants that
it will timely file the reports required to be filed by it under the Securities
Act and Section 13(a) or 15(d) of the Exchange Act and the rules and regulations
adopted by the SEC thereunder and, if at any time the Company is not required to
file such reports, it will, upon the request of any Holder of Registrable
Securities, make publicly available other information so long as necessary to
permit sales pursuant to Rule 144 under the Securities Act. The Company also
covenants that it will provide the information required pursuant to Rule
144A(d)(4) under the Securities Act upon the request of any Holder of
Registrable Securities and it will take such further action as any Holder of
Registrable Securities may reasonably request, all to the extent required from
time to time, to enable such Holder to sell its Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (a) Rule 144 under the Securities Act, as such Rule may be amended
from time to time, (b) Rule 144A under the Securities Act, as such Rule may be
amended from time to time, or (c) any similar rule or regulation hereafter
adopted by the SEC. Upon the request of any Holder of Registrable Securities,
the Company will deliver to such Holder a written statement as to whether it has
complied with such requirements.
7. Indemnification.
(a) The Company will indemnify each Registering Holder, each such Holder's
officers and directors, and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, against all claims, losses,
damages, liabilities and expenses (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
such Holders' Registrable Securities, 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 indemnify and will not
be liable to any Registered Holder 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
conformity with and in reliance upon information furnished in writing to the
Company by such Holder or by an underwriter for inclusion therein or such
Holder's failure to deliver any Prospectus or amendment or supplement thereto.
(b) Each Registering 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, liabilities and expenses (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 7 (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. However,
the failure to so notify the Indemnifying Party shall not relieve the
Indemnifying Party from any liability which it may have to the Indemnified Party
pursuant to the provisions of this Section 7, 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, which
shall be chosen by the Indemnifying Party and shall be reasonably satisfactory
to the Indemnified Party, and payment of expenses in connection with such
defense. The Indemnified Party shall have the right to 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 (i) the employment of such counsel shall
have been authorized in writing by the Indemnifying Party, (ii) the Indemnifying
Party shall not have assumed the defense of such action within a reasonable
period of time, or (iii) the Indemnified Party shall have been reasonably
advised by its counsel that there may be defenses available to it or them which
are different from or additional to those available to 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 the entry of any judgment or enter
into any settlement that does not include as an unconditional term thereof the
giving by the claimant or plaintiff to each 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 7 is unavailable to
a party that would have been an Indemnified Party under this Section 7, 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 claims, losses, damages,
liabilities and expenses 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 claims, losses, damages, liabilities and expenses, 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
related 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 statement or omission. The Company and
each Registering Holder agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
or by any other method of allocation that fails to take account of the equitable
considerations referred to above in this Section 7(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 Registering Holder be liable for any claims,
losses, damages, liabilities or expenses pursuant to this Section 7 in excess of
the proceeds to such Holder for the sale of such Holder's Registrable Securities
pursuant to a Registration.
8. Miscellaneous.
(a) No Inconsistent Agreement. The Company has not entered into nor will
the Company on or after the date of this Agreement enter into any agreement
which is inconsistent with the rights granted to the Holder of Registrable
Securities in this Agreement or otherwise conflicts with the provisions hereof.
The rights granted to the Holder do not in any way conflict with and are not
inconsistent with the rights granted to the holder of the Company's other issued
and outstanding securities under any such agreements.
(b) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given
without the written consent of the Company and the Holder(s) of a majority of
the Registrable Securities (including outstanding Series B Preferred Units).
(c) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, registered first-class
mail, telex, telecopier, or any courier guaranteeing overnight delivery (i) if
to the Contributors, c/o Xxxxx Xxxxx Management, Xxx Xxxxxxx Xxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxx Xxxxxx, telecopier number (617)
338-8054, and thereafter at such other address or telecopier number, notice of
which is given in accordance with the provisions of this Section 8(c), with a
copy to Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxx X. Xxxxxxxx, Esq., telecopier number (000) 000-0000, (ii) if to
an assignee or transferee of the Contributors, to such address or telecopier
number such assignee or transferee shall have provided to the Company, and
thereafter at such other address or telecopier number, notice of which is given
in accordance with the provisions of this Section 8(c) and (iii) if to the
Company, at 0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000,
Attention: President, telecopier number (000) 000-0000, and thereafter at such
other address or telecopier number, notice of which is given in accordance with
the provisions of this Section 8(c), with a copy to Xxxxx & Xxxxxxx, L.L.P.,
Columbia Square, 000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, Attention: Xxxx
Xxx, Esq., telecopier number (000) 000-0000. All such notices and communications
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five (5) business days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt is
acknowledged, if telecopied; and on the next business day if timely delivered to
an air courier guaranteeing overnight delivery.
(d) Successors. The rights and obligations of any Holder hereunder may be
assigned to any other Holder. This Agreement shall inure to the benefit of and
be binding upon the successors and assigns of the Company and the Holder.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ALABAMA, WITHOUT GIVING EFFECT
TO THE CONFLICTS OF LAW PROVISIONS THEREOF. EACH OF THE PARTIES HERETO AGREES TO
SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF ALABAMA IN ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(h) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(i) Specific Performance. The parties hereto 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 each party, in addition to any
other remedy to which it may be entitled at law or in equity, shall be entitled
to complete specific performance of the obligations of any other party under
this Agreement to accordance with the terms and conditions of this Agreement in
any court of the United States or any State thereof having jurisdiction.
(j) Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to the subject
matter hereof. (k) 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.
(1) Authority; Binding Effect. Each party hereto represents and warrants
that it has the fall 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
COLONIAL PROPERTIES TRUST
By:
Name:
Title:
BELCREST REALTY CORPORATION
By:
Name:
Title:
BELAIR REAL ESTATE CORPORATION
By:
Name:
Title:
