Exhibit 10.1
REGISTRATION RIGHTS AGREEMENT
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This REGISTRATION RIGHTS AGREEMENT ("Agreement") is entered into as of
the 6 day of February, 1998 by and among XXXXXXXX PROPERTIES ACQUISITION
PARTNERS, L.P., a Delaware limited partnership (the "Seller"), XXXXXXXX
PROPERTIES TRUST, a Maryland real estate investment trust ("the Company"),
XXXXXXXX PROPERTIES I, INC., a Delaware corporation and sole general partner of
the Seller (the "General Partner"), and the limited partners listed on Exhibit
"A" hereto (the "Limited Partners"). The Limited Partners and their permitted
transferees and assignees are herein referred to individually as a "Holder" and
collectively, as "Holders".
R E C I T A L S :
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WHEREAS, pursuant to the Second Amended and Restated Agreement of
Limited Seller of Buyer Seller of Xxxxxxxx Properties Acquisition Partners,
L.P., dated as of October 22, 1996 (the "Partnership Agreement"), the Limited
Partners have contributed to the capital of the Seller interests in certain
assets in exchange for the Units of limited partnership interest in the Seller
as set forth on Exhibit "A" hereto (the "Seller Units");
WHEREAS, the parties hereto desire to set forth certain rights of the
Limited Partners as holders of the Seller Units;
NOW, THEREFORE, for and in consideration of the mutual promises and
agreements contained in this Agreement, the parties hereto agree as follows:
A G R E E M E N T :
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ARTICLE I
DEFINITIONS
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Capitalized terms not otherwise defined when first used herein shall
have the meanings set forth in the Partnership Agreement.
ARTICLE II
SHELF REGISTRATION
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2.1. Shelf Registration. The Company agrees to file with the
Commission a shelf registration statement pursuant to Rule 415 of the Securities
Act, or similar rule that may be adopted by the Commission (the "Shelf
Registration"), at a time and in a manner reasonably designed to cause the Shelf
Registration to be declared effective by the Commission on or about the first
anniversary of the date of this Agreement, with respect to the issuance by the
Company of at least the number of REIT Shares issuable to the Limited Partners
upon redemption of the Seller
Units (the "Exchange Shares"). The Company will use its reasonable efforts to
cause the Shelf Registration to be declared effective under the Securities Act
as soon as reasonably possible after filing. The Company will use its reasonable
efforts to keep the Shelf Registration continuously effective until the earlier
of (a) the date when all of the Exchange Shares covered thereby are issued or
sold thereunder, (b) the date on which all Limited Partners then holding Seller
Units agree to the withdrawal of the Registration Statement or (c) the first
date on which all of the Exchange Shares covered thereby could, in the opinion
of counsel for the Company, be sold in any three month period pursuant to Rule
144 under the Securities Act or any successor rule thereto (the "Shelf
Registration Period"). The Company further agrees to supplement or make
amendments to the Shelf Registration, if required by the rules, regulations, or
instructions applicable to the registration form utilized by the Company or by
the Securities Act or rules and regulations thereunder for the Shelf
Registration. In addition, the Company agrees to file any additional Shelf
Registration as may be necessary from time to time to register additional
Exchange Shares issuable as a result of any change in the Conversion Ratio. No
provision of this Article II shall require the Company to file a registration
statement on any form other than Form S-3 or a successor form thereto.
2.2. Registration and Qualification Procedures. The Company will:
(a) use its reasonable efforts to cause the Shelf Registration
to be declared effective by the Commission as soon after filing as
reasonably possible;
(b) use its reasonable efforts to keep the Shelf Registration
effective and the related prospectus current throughout the Shelf
Registration Period;
(c) furnish to each Limited Partner such numbers of copies of
the relevant prospectuses, and supplements or amendments thereto, and such
other related documents as they may reasonably request; and
(d) use its reasonable efforts to register or qualify the
securities covered by the Shelf Registration under applicable state
securities or blue sky laws; provided, however, that the Company shall not
be required to (i) qualify as a foreign corporation or consent to a general
and unlimited service of process in any jurisdiction in which it would not
otherwise be required to be qualified or so consent or (ii) qualify as a
dealer in securities.
2.3. Allocation of Expenses. The Seller or the Company shall pay
all expenses in connection with the Shelf Registration, including, without
limitation (a) Commission registration fees, (b) printing expenses, (c)
accounting and legal fees and expenses for the Company and the Seller (but not
the fees and expenses of any accountant or attorney engaged by any Limited
Partner) and (d) expenses of complying with applicable securities or blue sky
laws in connection with the Shelf Registration; provided, however, neither the
Seller nor the Company shall be liable for (i) any discounts or commissions to
any broker attributable to any sale of Exchange Shares, or (ii) any fees or
expenses incurred by holders of Exchange Shares in connection with such
registration which, according to the written instructions of any regulatory
authority, the Seller or the Company is not permitted to pay.
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2.4. Indemnification. In connection with the Shelf Registration,
the Company, the General Partner, and the Seller agree to indemnify holders of
Seller Units and Exchange Shares in accordance with the provisions of Article
III hereof.
ARTICLE III
INDEMNIFICATION
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3.1. Indemnification by the Company, the General Partner, and the
Seller. The Company, the General Partner, and the Seller agree to indemnify and
hold harmless the Limited Partners, the directors and officers of any corporate
Limited Partner, and each Person (if any) who controls a corporate Limited
Partner within the meaning of Section 15 of the Securities Act, against any and
all losses, claims, damages, or liabilities to which they or any of them may
become subject under the Securities Act or any other statute or common law,
including any amount paid in settlement of any litigation, commenced or
threatened, if such settlement is effected with the written consent of the
Company, and to reimburse them for any legal or other expenses incurred by them
in connection with investigating any claims and defending any actions, insofar
as any such losses, claims, damages, liabilities, or actions arise out of or are
based upon third party claims arising out of or attributable to (a) any untrue
statement or alleged untrue statement of a material fact contained in any
registration statement filed hereunder to register the Exchange Shares or any
post-effective amendment thereto or in any filing made in connection with the
qualification of the offering under blue sky or other securities laws of
jurisdictions in which the Exchange Shares are offered (a "Blue Sky Filing"), or
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading, or (b) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus, if used prior to the effective date of such registration
statement, or contained in any final prospectus (as amended or supplemented if
the Company shall have filed with the Commission any amendment thereof or
supplement thereto) if used within the period during which the Company is
required to keep the registration statement to which such prospectus relates
current, or the omission or alleged omission to state therein (if so used) a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that the indemnification agreement contained in this Section 3.1 shall not apply
to such losses, claims, damages, liabilities, or actions arising out of, or
based upon, any such untrue statement or alleged untrue statement, or any such
omission or alleged omission, if such statement or omission was made in reliance
upon and in conformity with information furnished to the Company by the Limited
Partners specifically for use in connection with preparation of any registration
statement, any preliminary prospectus or final prospectus contained in any
registration statement, any such amendment or supplement thereto or any Blue Sky
Filing.
3.2. Indemnification Procedures.
Each indemnified party shall, with reasonable promptness after its
receipt of written notice of the commencement of any action against such
indemnified party in respect of which indemnity may be sought from an
indemnifying party on account of an indemnity agreement contained herein, notify
the indemnifying party in writing of the commencement thereof.
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The omission to notify the indemnifying party shall not relieve it
from any liability which it may have to any indemnified party unless the failure
to give notice materially adversely affects the ability of the indemnifying
party to defend a claim which is the subject of indemnification hereunder (in
which case the indemnifying party shall be relieved of its obligation only to
the extent of offsetting any loss, damage, or liability it suffers as a
consequence of the failure against its monetary obligation to the indemnified
party).
In case any such action shall be brought against any indemnified party
and the indemnified party shall so notify an indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and to the extent it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party and, after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
hereunder for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation, except as provided below.
The indemnified party shall have the right to employ separate counsel
in any such action and participate in the defense thereof, but the fees and
expenses of such counsel shall be paid by the indemnified party unless (i) the
indemnifying party agrees to pay the same, (ii) the indemnifying party fails to
assume the defense of such action with counsel reasonably satisfactory to the
indemnified party, or (iii) the named parties to any such action (including any
impleaded parties) have been advised by such counsel that representation of such
indemnified party and the indemnifying party by the same counsel would be
inappropriate under applicable standards of professional conduct (in which case
the indemnifying party shall not have the right to assume the defense of such
action on behalf of such indemnified party). No indemnifying party shall be
liable for any settlement entered into without its consent.
The indemnity agreements contained herein shall be in addition to any
liabilities which the indemnifying party may have pursuant to law.
3.3. Contribution. If for any reason the indemnification provisions
contemplated herein are either unavailable or insufficient to hold harmless an
indemnified party in respect of any losses, claims, damages, or liabilities
referred to therein, then the party that otherwise would be required to provide
indemnification or the indemnifying party (in either case, for purposes of this
section, the "Indemnifying Party") in respect of such losses, claims, damages,
or liabilities, shall contribute to the amount paid or payable by the party that
would otherwise be entitled to indemnification or the indemnified party (in
either case, for purposes of this section, the "Indemnified Party") as a result
of such losses, claims, damages, liabilities, or expense, in such proportion as
is appropriate to reflect the relative fault of the Indemnifying Party and the
Indemnified Party, as well as any other relevant equitable considerations. The
relative fault of the Indemnifying Party and Indemnified Party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact related to information supplied by the Indemnifying Party or
Indemnified Party, and the parties' relative intent, knowledge, access to
information and Opportunity Unit to correct or prevent such statement or
omission. The amount paid or payable
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by a party as a result of the losses, claims, damages, liabilities, and expenses
referred to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this section were determined by pro rata allocation
(even if the holders or any underwriters or all of them were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. No person or entity determined to have committed a
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person or entity who
was not guilty of such fraudulent misrepresentation.
ARTICLE IV
GENERAL
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4.1. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be delivered by hand,
transmitted by facsimile transmission, or sent prepaid by international courier,
to the Limited Partners at their addresses as set forth on the books of the
Seller. Notices to the Company, the Seller and the General Partner shall be
delivered at or mailed to Xxxxxxxx Properties I, Inc., 0000 Xxxx Xxxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention: Office of the President.
The Company, the Seller and the General Partner may specify a different address
by written notice to the Limited Partners. Any Limited Partners may specify a
different address by written notice to the Company. Any notice, request, demand
or other communication delivered or sent in the manner aforesaid shall be deemed
given or made (as the case may be) when delivered by hand or confirmed by
facsimile transmission, or, in the case of delivery by courier, when actually
delivered to the address of the intended recipient.
4.2. Entire Agreement. This Agreement and exhibits attached hereto
constitute the entire agreement of the parties and supersede all prior written
agreements and prior and contemporaneous oral agreements, understandings and
negotiations with respect to the subject matter hereof.
4.3. Pronouns and Plurals. When the context in which words are used
in this Agreement indicates that such is the intent, words in the singular
number shall include the plural and the masculine gender shall include the
neuter or female gender as the context may require.
4.4. Headings. The article and section headings in this Agreement
are for convenience only and shall not be used in construing the scope of this
Agreement or any particular article or section.
4.5. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original copy and all of
which together shall constitute one and the same instrument binding on all
parties hereto, notwithstanding that all parties shall not have signed the same
counterpart.
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4.6. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California.
4.7. Assignment and Confirmation. This Agreement may be assigned by
a Limited Partner only upon the written consent of the Company. It shall be a
condition to any Person succeeding to the rights of a Limited Partner as
permitted herein that such Person, if requested by the Company, execute a
counterpart to this Agreement and become a party hereto.
4.8. Amendment. This Agreement may be amended by written agreement
executed by the Company, the General Partner, the Seller and each Limited
Partner to be bound thereby.
4.9. Authority; Binding Effect. Each party hereto represents and
warrants to the other parties that it has the full legal right, power and
authority to execute this Agreement, that this Agreement has been duly
authorized, executed and delivered on behalf of such party and constitutes a
valid and binding agreement of such party enforceable in accordance with its
terms.
4.10. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but such counterparts
shall together constitute but one and the same Agreement.
4.11. Application of Agreement. This Agreement shall apply only to
the Seller Units listed on Exhibit "A" and the Exchange Shares issuable in
respect thereof.
4.12. Lock Up. If any Limited Partner desires to sell, in any thirty
(30) day period, more than fifty percent (50%) of the total number of Exchange
Shares that such Limited Partner is entitled to receive, then such Limited
Partner shall provide written notice of such intention to the Company prior to
selling any Exchange Shares. The Limited Partners agree that the certificates
representing any Exchange Shares may bear a legend referring to the foregoing
restriction.
IN WITNESS WHEREOF, each party has duly executed this Agreement as of
the day and year first above written.
XXXXXXXX PROPERTIES TRUST,
a Maryland real estate investment trust
By: /s/ XXXXX X. XXXXXXXXX
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Name: XXXXX X. XXXXXXXXX
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Title: SVP
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By:
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Name:
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Title:
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[SIGNATURES CONTINUED]
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XXXXXXXX PROPERTIES
PARTNERS, L.P.
By: XXXXXXXX PROPERTIES I, INC.,
its general partner
By: /s/ XXXXX X. XXXXXXXXX
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Name: Xxxxx X. Xxxxxxxxx
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Title: SVP
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LIMITED PARTNERS
NEWPORT NATIONAL CORPORATION,
a California Corporation
By: /s/ XXXXX X. XXXXXXXX
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Xxxxx X. Xxxxxxxx, President
By: /s/ XXXXXX X. XXXXXXXX
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Xxxxxx X. Xxxxxxxx, Secretary
/s/ X.X. XXXXXXXX
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X.X. Xxxxxxxx, Trustee of the F.M. (Xxxxx)
Xxxxxxxx Trust, established September 17, 1985
/s/ XXXXX X. XXXXXXXX
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Xxxxx X. Xxxxxxxx
/s/ XXXXXX X. XXXXXXXX
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Xxxxxx X. Xxxxxxxx
XXXXXX INVESTMENT COMPANY,
a California limited partnership
By: /s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx
General Partner
/s/ D. XXXX XXXXXX
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D. Xxxx Xxxxxx
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EXHIBIT A TO
REGISTRATION RIGHTS AGREEMENT
LIMITED PARTNERSHIP UNITS
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Limited Partner Units
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Newport National Corporation 36,366
The F.M. (Xxxxx) Xxxxxxxx Trust 16,735
Xxxxx X. Xxxxxxxx 15,049
Xxxxxx X. Xxxxxxxx 13,962
Xxxxxxx Investment Company 9,514
D. Xxxx Xxxxxx 632
GRAND TOTAL UNITS 92,258
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EXHIBIT "A"
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EXHIBIT B TO
REGISTRATION RIGHTS AGREEMENT
NOTICE OF EXERCISE OF REDEMPTION RIGHT
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The undersigned hereby irrevocably (i) presents for redemption _______
Units of limited partnership interest ("Units") in Xxxxxxxx Properties
Acquisition Partners, L.P. (the "Seller") in accordance with the terms of the
Registration Rights Agreement, dated ______________________, 1998 ("Agreement")
and the "Exchange Right" referred to in Section 8.05 of the Second Amended and
Restated Agreement of Limited Partnership of the Seller (the "Partnership"),
(ii) surrenders such Units and all right, title and interest therein, (iii)
surrenders herewith any certificate or other writing evidencing the Units (and
requests that any Units so evidenced that are not redeemed be evidenced by the
issuance of a new certificate or writing) and (iv) directs that the "Cash
Amount" or "REIT Shares Amount" (as determined by the General Partner), as
defined in the Agreement, deliverable upon exercise of the Redemption Rights be
delivered to the address specified below, and if REIT Shares are to be
delivered, such Company Shares be registered or placed in the name(s) and at the
address(es) specified below.
Dated: Name of Limited Partner:
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(Signature of Limited Partner)
(Mailing Address)
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(City) (State) (Zip Code)
Signature Guaranteed by:
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If REIT Shares are to be issued, issue
to:
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Please insert social security or
identifying number:
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EXHIBIT "B"
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