REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT"), entered into as
of the 17th day of February, 1998, is made by and among INSIGNIA PROPERTIES
TRUST, a Maryland real estate investment trust ("IPT"), and Insignia Financial
Group, Inc., a Delaware corporation ("IFG").
WITNESSETH:
WHEREAS, in connection with the formation of IPT, IFG and its
Affiliates (as defined herein) contributed certain interests in limited
partnerships which principally own multifamily residential properties and, to a
lesser extent commercial properties, to Insignia Properties, L.P., a Delaware
limited partnership and the operating partnership of IPT ("IPLP"), in exchange
for units of limited partner interest in IPLP ("OP UNITS");
WHEREAS, pursuant to the terms of the Third Amended and Restated
Agreement of Limited Partnership of IPLP dated as of August 1, 1997 (the
"PARTNERSHIP AGREEMENT"), IFG, as a limited partner of IPLP, has the right,
under certain circumstances, to cause IPLP to redeem all or a portion of the OP
Units owned by IFG for cash, subject to IPT's first right to acquire such OP
Units in exchange for common shares of beneficial interest, par value $.01 per
share, of IPT ("COMMON SHARES");
WHEREAS, the Partnership Agreement contains certain registration
rights for the limited partners of IPLP in the event that IPT elects to acquire
their OP Units in exchange for Common Shares upon a request for redemption by a
limited partner;
WHEREAS, in connection with the amendment and restatement of the
Partnership Agreement of even date herewith, which provided for, among other
things, the removal of such registration rights granted to the limited partners
of IPLP, IPT agreed to grant IFG certain registration rights with respect to
the Shares (as defined herein); and
WHEREAS, IPT and IFG desire to set forth more fully their agreements
regarding such registration rights relating to the Shares.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, the receipt and sufficiency of which
are acknowledged, the parties hereto, each intending to be legally bound
hereby, agree as follows:
ARTICLE I.
DEFINITIONS
As used herein, the following terms shall have the respective meanings
set forth below:
"AFFILIATE" of any person means any person that directly or
indirectly controls, or is under common control with, or is controlled by, such
person. As used in this definition, "CONTROL"
(including with its correlative meanings, "CONTROLLED BY" and "UNDER COMMON
CONTROL WITH") shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a person
(whether through ownership of securities or partnership or other ownership
interests, by contract or otherwise).
"AGREEMENT" has the meaning set forth in the recitals.
"BOARD OF TRUSTEES" means the Board of Trustees of IPT, as
constituted from time to time in accordance with IPT's Declaration of Trust and
Bylaws.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON SHARES" has the meaning set forth in the recitals.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"IFG" has the meaning set forth in the recitals.
"INDEMNIFIED PARTY" has the meaning set forth in Section 2.5(c).
"INDEMNIFYING PARTY" has the meaning set forth in Section 2.5(c).
"IPLP" has the meaning set forth in the recitals.
"IPT" has the meaning set forth in the recitals.
"OP UNITS" has the meaning set forth in the recitals.
"PARTNERSHIP AGREEMENT" has the meaning set forth in the
recitals.
"PROSPECTUS" means the prospects included in the Shelf
Registration Statement, as amended or supplemented by any prospectus supplement
and by other amendments thereto, including post-effective amendments and all
material incorporated by reference into such Prospectus.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SHARES" means any Common Shares which may be issued to IFG upon
a redemption of all or a portion of the OP units owned by IFG on or after the
date hereof.
"SHELF FILING DEADLINE" has the meaning set forth in Section
2.1(a).
"SHELF REGISTRATION" means a registration effected by the filing
of a Shelf Registration Statement pursuant to Section 2 hereof.
"SHELF REGISTRATION STATEMENT" has the meaning set forth in
Section 2.1(a).
"TRUSTEE" means a member of the Board of Trustees.
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The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms. The words "herein," "hereof"
and words of similar import as used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision in this Agreement.
ARTICLE II.
REGISTRATION RIGHTS
SECTION 2.1. Shelf Registration.
(a) Shelf Registration. Provided that IPT has registered any Common
Shares under the Exchange Act, upon IFG's written request, IPT shall:
(i) use its best efforts to cause to be filed a shelf
registration statement pursuant to Rule 415 under the Securities Act
(the "SHELF REGISTRATION STATEMENT"), on or prior to the 30th day
after the date on which IPT receives IFG's written request (the "SHELF
FILING DEADLINE"), which Shelf Registration Statement shall provide
for resales of all Shares; and
(ii) use its best efforts to cause such Shelf Registration
Statement to be declared effective by the Commission on or before the
120th day after the obligation to file such Shelf Registration
Statement arises.
IPT shall use its best efforts to keep such Shelf Registration
Statement continuously effective, supplemented and amended as required by the
provisions of Section 2.2 hereof to the extent necessary to ensure that it is
available for resales of Shares by IFG and to ensure that it conforms with the
requirements of this Agreement, the Securities Act and the policies, rules and
regulations of the Commission as announced from time to time.
(b) Provision by IFG of Certain Information in Connection with the
Shelf Registration Statement. Notwithstanding Section 2.1(a) hereof, IPT shall
not be required to file with the Commission any Shelf Registration Statement
pursuant to this Agreement unless and until IFG furnishes to IPT in writing,
within 20 business days after receipt of a request therefor, such information
as IPT may reasonably request specified in Item 507 and Item 508 of Regulation
S-K under the Securities Act for use in connection with any Shelf Registration
Statement or Prospectus therein. IFG agrees to furnish promptly to IPT all
information required to be disclosed in order to make the information
previously furnished to IPT by IFG not materially misleading.
SECTION 2.2. Registration Procedures.
In connection with the Shelf Registration Statement, IPT shall comply
with all the provisions of this Section 2.2 and shall use its best efforts to
effect such registration to permit the sales of the Shares being sold in
accordance with the intended method or methods of distribution thereof, and
pursuant thereto IPT will as expeditiously as practicable prepare and file with
the Commission a registration statement relating to the registration on any
appropriate form under the
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Securities Act, which form shall be available for the sale of the Shares in
accordance with the intended method or methods of distribution thereof.
In connection with any Shelf Registration Statement and any related
Prospectus required by this Agreement to permit the resale of the Shares, IPT
shall:
(i) prepare and (as soon thereafter as possible or in any
event no later than 60 days after the end of the period within which
requests for registration may be given to IPT or such longer period as
IPT shall in good faith require to produce the financial statements
required in connection with such registration) file with the
Commission the requisite Shelf Registration Statement to effect such
registration and thereafter use reasonable efforts to cause such Shelf
Registration Statement to become effective;
(ii) prepare and file with the Commission such amendments and
supplements to such Shelf Registration Statement and the Prospectus
used in connection therewith as may be necessary to keep such Shelf
Registration Statement effective and to comply with the provisions of
the Securities Act with respect to the disposition of all Shares
covered by such Shelf Registration Statement until such time as all of
such Shares have been disposed of in accordance with the intended
methods of disposition by IFG;
(iii) furnish to IFG such number of conformed copies of such
Shelf Registration Statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of copies
of the Prospectus contained in such Shelf Registration Statement
(including each preliminary Prospectus and any summary Prospectus) and
any other Prospectus filed under Rule 424 under the Securities Act,
and such other documents, as IFG may reasonably request;
(iv) use its best efforts to register or qualify all Shares
covered by such Shelf Registration Statement under such other
securities or blue sky laws of such jurisdictions as IFG thereof shall
reasonably request, to keep such Registration or qualification in
effect for so long as such Shelf Registration Statement remains in
effect, and take any other action which may be reasonably necessary or
advisable to enable IFG to consummate the disposition in such
jurisdictions of the Shares owned by IFG, except that IPT shall not
for any such purpose be required to qualify generally to do business
as a foreign corporation in any jurisdiction wherein it would not but
for the requirements of this subdivision (iv) be obligated to be so
qualified or to consent to general service of process in any such
jurisdiction;
(v) use its best efforts to cause all Shares covered by such
Shelf Registration Statement to be registered with or approved by such
other United States federal or state governmental agencies or
authorities as may be necessary to enable IFG to consummate the
disposition of such Shares;
(vi) furnish to IFG a copy, or, upon request, a signed
counterpart, addressed to IFG (and the underwriters, if any) of:
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(x) an opinion of counsel for IPT, dated the
effective date of such Shelf Registration Statement (or, if
such registration includes an underwritten public offering,
dated the date of the closing under the underwriting
agreement), and
(y) a "comfort" letter addressed to the
underwriters, dated the effective date of such Shelf
Registration Statement (or, if such registration includes an
underwritten public offering, dated the date of the closing
under the underwriting agreement), signed by the independent
public accountants who have audited IPT's financial
statements included in such Shelf Registration Statement,
covering substantially the same matters with respect to such
Shelf Registration Statement (and the Prospectus included
therein) and, in the case of the accountants' letter, with
respect to events subsequent to the date of such financial
statements, as are customarily covered in opinions of
issuer's counsel and in accountants' letters delivered to the
underwriters in underwritten public offerings of securities
and, in the case of the accountants' letter, such other
financial matters,
and, in the case of the legal opinion such other legal matters, as IFG (or the
underwriters, if any) may reasonably request;
(vii) notify IFG, at any time when a Prospectus relating
thereto is required to be delivered under the Securities Act, upon
discovery that, or upon the happening of any event as a result of
which, the Prospectus included in such Shelf Registration Statement,
as then in effect, includes an 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 in the light
of the circumstances under which they were made, and at the request of
IFG, prepare and furnish to IFG a reasonable number of copies of a
supplement to or an amendment of such Prospectus as may be necessary
so that, as thereafter delivered to the purchasers of such Shares,
such Prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light
of the circumstances under which they were made;
(viii) otherwise use reasonable efforts to comply with all
applicable rules and regulations of the Commission, and make available
to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months
beginning with the first full calendar month after the effective date
of such Shelf Registration Statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act, and
will furnish to IFG, upon request of IFG, at least five days prior to
the filing thereof, a copy of any amendment or supplement to such
Shelf Registration Statement or Prospectus and shall not file any
amendment or supplement thereof to which IFG shall have delivered to
IPT an opinion of counsel that such amendment or supplement does not
comply in all material respects with the requirements of the
Securities Act or of the rules or regulations thereunder;
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(ix) provide and cause to be maintained a transfer agent for
all Shares covered by such Shelf Registration Statement from and after
a date not later than the effective date of such Shelf Registration
Statement; and
(x) use its best efforts to list all Shares covered by such
Shelf Registration Statement on any securities exchange on which any
of the Shares is then listed.
IFG agrees that upon receipt of any notice from IPT of the happening
of any event of the kind described in subdivision (vii) of this Section 2.2,
IFG will forthwith discontinue its disposition of Shares pursuant to the
registration statement relating to such Shares until IFG's receipt of the
copies of the supplemented or amended prospectus contemplated by subdivision
(vii) of this Section 2.2 and, if so directed by IPT, will deliver to IPT (at
IPT's expense) all copies, other than permanent file copies then in IFG's
possession, of the prospectus relating to such Shares current at the time of
receipt of such notice.
SECTION 2.3. Expenses.
All expenses of any registration requested under this Agreement shall
be borne equally by IFG and IPT. In all cases, IFG shall pay the underwriting
discounts and commissions applicable to the Shares sold by IFG.
SECTION 2.4. Preparation; Reasonable Investigation.
In connection with the preparation and filing of each Shelf
Registration Statement under the Securities Act which includes Shares owned by
IFG pursuant to this Agreement, IPT will give IFG, its underwriters, if any,
its counsel and its accountants the opportunity to participate in the
preparation of such Shelf Registration Statement, each Prospectus included
therein or filed with the Commission, and each amendment thereof or supplement
thereto, and will give each of them such access to its books and records and
such opportunities to discuss the business of IPT with its officers and the
independent public accountants who have certified its financial statements as
shall be necessary, in the opinion of IFG, to conduct a reasonable
investigation within the meaning of the Securities Act.
SECTION 2.5. Indemnification.
(a) Indemnification by IPT. IPT agrees to indemnify and hold
harmless IFG, each of the directors and officers of IFG, each Affiliate of IFG,
each of the directors and officers of such Affiliate of IFG, each other person
who participates as an underwriter in the offering or sale of such securities
and each other person, if any, who controls IFG, such Affiliate or any such
underwriter within the meaning of the Securities Act, against any losses,
claims, damages, costs, expenses or liabilities, joint or several, to which IFG
or any such director or officer or underwriter or controlling person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any
Shelf Registration Statement under which such securities were registered under
the Securities Act, any preliminary Prospectus, final
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Prospectus or summary Prospectus contained therein, any offering circular or
other similar document (including any related registration statement,
notification or the like) incident to any such registration, qualification or
compliance, or any amendment or supplement thereto, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and IPT will reimburse
IFG and each such director, officer, underwriter and controlling person for any
legal or any other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, cost, expense,
liability, action or proceeding; provided that IPT shall not be liable in any
such case to the extent that any such loss, claim, damage, liability (or action
or proceeding in respect thereof) arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
such Shelf Registration Statement, any such preliminary Prospectus, final
Prospectus, summary Prospectus, offering circular, amendment or supplement in
reliance upon and in conformity with written information furnished to IPT by
IFG expressly for use in the preparation thereof, and provided further that IPT
shall not be liable to any person who participates as an underwriter in the
offering or sale of Shares or any other person, if any, who controls such
underwriter within the meaning of the Securities Act, in any such case to the
extent that any such loss, claim, damage, cost, expense, liability (or action
or proceeding in respect thereof) arises out of such person's failure to send
or give a copy of the final Prospectus, as the same may be then supplemented or
amended, to the person asserting an untrue statement or alleged untrue
statement or omission or alleged omission at or prior to the written
confirmation of the sale of Shares to such person if such statement or omission
was corrected in such final Prospectus. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of IFG or
any such director, officer, underwriter or controlling person and shall survive
the transfer of such Shares by IFG.
(b) Indemnification by IFG. IPT may require, as a condition to
including any of IFG's Shares in any Shelf Registration Statement filed
pursuant to Section 2.2 hereof, that IPT shall have received an undertaking
satisfactory to it from IFG and/or its Affiliates, to indemnify and hold
harmless (in the same manner and to the same extent as set forth in subdivision
(a) of this Section 2.5) each underwriter, each person who controls such
underwriter within the meaning of the Securities Act, IPT, each Trustee of IPT,
each officer of IPT, each Affiliate of IPT, each director of each Affiliate of
IPT, each trustee of each Affiliate of IPT, each officer of each Affiliate of
IPT and each other person, if any, who controls IPT within the meaning of the
Securities Act, with respect to any statement or alleged statement in or
omission or alleged omission from such Shelf Registration Statement, any
preliminary Prospectus, final Prospectus, summary Prospectus or offering
circular contained therein, or any amendment or supplement thereto, if such
statement or alleged statement or omission or alleged omission was made in
reliance upon and in strict conformity with written information furnished to
IPT by IFG and/or its Affiliates expressly for use in the preparation of such
Shelf Registration Statement, preliminary Prospectus, final Prospectus, summary
Prospectus, offering circular, amendment or supplement; provided that IFG
and/or its Affiliates shall not be liable to any person who participates as an
underwriter in the offering or sale of Shares or any other person, if any, who
controls such underwriter within the meaning of the Securities Act, in any such
case to the extent that any such loss, claim, damage, cost, expense or
liability (or action or proceeding in respect thereof) arises out of such
person's failure to send or give a copy of the final prospectus, as the same
may be
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then supplemented or amended, to the person asserting an untrue statement or
alleged untrue statement or omission or alleged omission at or prior to the
written confirmation of the sale of Shares to such person if such statement or
omission was corrected in such final prospectus. Such indemnity shall remain in
full force and effect, regardless of any investigation made by or on behalf of
any underwriter, IPT or any such director, trustee, officer or controlling
person and shall survive the transfer of such Shares by IFG. In no event shall
the liability of IFG under this Section 2.5 be greater in amount than the
dollar amount of the proceeds received by IFG upon the sale of the Shares
giving rise to such indemnification obligation.
(c) Notices of Claims, etc. Promptly after receipt by an indemnified
party (the "INDEMNIFIED Party") of notice of the commencement of any action or
proceeding involving a claim referred to in the preceding subdivisions of this
Section 2.5, such Indemnified Party will, if a claim in respect thereof is to
be made against an indemnifying party (the "INDEMNIFYING PARTY"), give written
notice to the Indemnifying Party of the commencement of such action; provided
that the failure of any Indemnified Party to give notice as provided herein
shall not relieve the Indemnifying Party of its obligations under the preceding
subdivisions of this Section 2.5, except to the extent that the Indemnifying
Party is actually prejudiced by such failure to give notice. In case any such
action is brought against an Indemnified Party, unless in such Indemnified
Party's reasonable judgment a conflict of interest between such Indemnified
Party and such Indemnifying Parties may exist in respect of such claim, the
Indemnifying Party shall be entitled to participate in and to assume the
defense thereof, jointly with any other Indemnifying Party similarly notified
to the extent that it may wish, 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 for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation. No Indemnifying
Party shall, without the consent of the 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. If any such Indemnified Party shall have been advised by counsel
chosen by it that there may be one or more legal defenses available to such
Indemnified Party that are different from or additional to those available to
the Indemnifying Party, the Indemnifying Party shall not have the right to
assume the defense of such action on behalf of such Indemnified Party and will
reimburse such Indemnified Party and any person controlling such Indemnified
Party for the reasonable fees and expenses of any counsel retained by the
Indemnified Party, it being understood that the Indemnifying Party shall not,
in connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys for such Indemnified Party or controlling person
and, in the case of indemnification by IPT, all other parties entitled to
indemnification pursuant to agreements with IPT or its Affiliates, which firm
shall be designated in writing by the Indemnified Party (and, in the case of
indemnification by IPT, by holders of a majority of Common Shares pursuant to
which such indemnification obligation arose under this Agreement and other
agreements between other parties and IPT or its Affiliates) to the Indemnifying
Party.
(d) Other Indemnification. Indemnification similar to that specified
in the preceding subdivisions of this Section 2.5 (with appropriate
modifications) shall be given by IPT and IFG
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and its Affiliates with respect to any required registration or other
qualification of securities under any federal or state law or regulation of any
governmental authority other than the Securities Act.
(e) Indemnification Payments. The indemnification required by this
Section 2.5 shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
(f) Contribution. If the indemnification provided for in this Section
2.5 from the Indemnifying Party is unavailable to an Indemnified Party
hereunder in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then the Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such loss, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the Indemnifying Party and Indemnified Parties in connection with the actions
which resulted in such losses, claims, damages, liabilities or expenses, as
well as any other relevant equitable considerations. The relative fault of such
Indemnifying Party and Indemnified Parties shall be determined by reference to,
among other things, whether any action in question, including any untrue
statement of material fact or omission or alleged omission to state a material
fact, has been made by, or relates to information supplied by, such
Indemnifying Party or Indemnified Parties, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action. 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, subject to the limitations set forth in this Section 2.5, any legal or
other fees or expenses reasonably incurred by such party in connection with any
investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 2.5 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 2.5, no underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Common Shares underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such underwriter has otherwise been required to pay by reason on such untrue or
alleged untrue statement or omission or alleged omission, and no selling holder
shall be required to contribute any amount in excess of the amount by which the
total price at which the Common Shares of such selling holder were offered to
the public exceeds the amount of any damages which such selling holder has
otherwise been required to pay by reason of such untrue statement or omission.
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.
If indemnification is available under this Section 2.5, the
Indemnifying Parties shall indemnify each Indemnified Party to the full extent
provided in Section 2.5(a) through Section 2.5(e) hereof without regard to the
relative fault of said Indemnifying Party or Indemnified Party or any other
equitable consideration provided for in this Section 2.5(f).
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SECTION 2.6. Forms.
All references in this Agreement to particular forms of registration
statements are intended to include, and shall be deemed to include, references
to all successor forms which are intended to replace, or to apply to similar
transactions as, the forms herein referenced.
SECTION 2.7. Transfer of Registration Rights.
The registration rights granted IFG under this Agreement may not be
transferred without the prior written consent of IPT; provided that such
registration rights may be transferred, in whole or in part, without such prior
written consent upon written notice to IPT in connection with a permitted
transfer of OP Units to a partner in or an Affiliate of IFG.
ARTICLE III.
MISCELLANEOUS
SECTION 3.1. Survival.
Without intending to exclude the provisions hereof which by their
nature survive, the provisions of Section 2.5 hereof shall survive any
termination of this Agreement.
SECTION 3.2. Successors and Assigns.
This Agreement shall bind and inure to the benefit of and be
enforceable by IPT and IFG. IPT may assign its rights under this Agreement
without the consent of IFG or its permitted successors or assigns. Except as
provided in Section 2.7 hereof, IFG may not assign its rights under this
Agreement without the prior written consent of IPT.
SECTION 3.3. Counterparts.
This Agreement may be executed in counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same
instrument.
SECTION 3.4. Severability.
In case any one or more of the provisions contained in this Agreement
or in any instrument contemplated hereby, or any application thereof, shall be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein, and
any other application thereof, shall not in any way be affected or impaired
thereby.
SECTION 3.5. Headings.
The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect any of the terms hereof.
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SECTION 3.6. Amendment and Waiver.
This Agreement may be amended only by agreement in writing signed by
all of the parties. No waiver of any provision or consent to any exception to
the terms of this Agreement shall be effective unless in writing and signed by
the party to be bound and then only to the extent, specific purpose and
instance so provided.
SECTION 3.7. Remedies.
Each of the parties to this Agreement will be entitled to enforce its
rights under this Agreement specifically, to recover damages by reason of any
breach of any provision of this Agreement and to exercise all other rights
existing in its favor. The parties hereto agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provisions of this
Agreement and that any party may in its sole discretion apply to any court of
law or equity of competent jurisdiction for specific performance and/or
injunctive relief in order to enforce or prevent any violations of the
provisions of this Agreement. In the event a party hereto brings an action
under this Agreement, the prevailing party in such dispute shall be entitled to
recover from the losing party all fees, costs and expenses of enforcing any
right of such prevailing party under or with respect to this Agreement,
including without limitation such reasonable fees and expenses of attorneys and
accountants, which shall include, without limitation, all fees, costs and
expenses of appeals. No course of dealing between IPT and IFG and no delay or
failure in exercising any rights hereunder shall operate as a waiver of the
rights of any party hereto.
SECTION 3.8. GOVERNING LAW.
THE CORPORATE AND REAL ESTATE INVESTMENT TRUST LAW OF THE STATE OF
MARYLAND WILL GOVERN ALL QUESTIONS CONCERNING THE RELATIVE RIGHTS OF IPT AND
ITS SHAREHOLDERS. ALL OTHER QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY AND
INTERPRETATION OF THIS AGREEMENT WILL BE GOVERNED BY THE INTERNAL LAW, AND NOT
THE LAW OF CONFLICTS, OF THE STATE OF NEW YORK.
SECTION 3.9. Jurisdiction.
Each of the parties hereto hereby irrevocably submits to the
nonexclusive jurisdiction of any New York State or United States federal court
sitting in the City of New York over any suit, action or proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby and
irrevocably waives, to the fullest extent they may exclusively do so, any
objection which they may now or hereafter have to the laying of venue of any
such proceeding.
SECTION 3.10. Further Acts.
Each of the parties hereto agrees to perform such other and further
acts and to execute such other further documents as may be reasonably required
to effect the transactions contemplated hereby.
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SECTION 3.11. Termination.
This Agreement shall commence on the date hereof and shall terminate
on the earlier to occur of (i) the written agreement of the parties hereto to
terminate this Agreement and (ii) the final dissolution of IPT in accordance
with applicable law.
SECTION 3.12. Relationship with Declaration of Trust and Bylaws.
In the event of any conflict between this Agreement, IPT's Declaration
of Trust, as amended, and Bylaws, as amended, the provisions of this Agreement
shall prevail to the extent permitted by applicable law, and the parties shall
take all action necessary or desirable to effect any amendments to such
documents necessary to avoid any such conflict.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the date hereof.
INSIGNIA PROPERTIES TRUST
By:
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Xxxxxxx X. Xxxxx
Senior Vice President
INSIGNIA FINANCIAL GROUP, INC.
By:
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Xxxxxxx X. Xxxxx
Senior Vice President
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