Exhibit 10.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("AGREEMENT") IS ENTERED INTO AS OF THE
12 DAY OF JUNE, 1998 BY AND AMONG XXXXXXXX PROPERTIES ACQUISITION PARTNERS,
L.P., A DELAWARE LIMITED PARTNERSHIP (THE "PARTNERSHIP"), XXXXXXXX PROPERTIES
TRUST, A MARYLAND REAL ESTATE INVESTMENT TRUST ("THE COMPANY"), XXXXXXXX
PROPERTIES I, INC., A DELAWARE CORPORATION AND SOLE GENERAL PARTNER OF THE
PARTNERSHIP (THE "GENERAL PARTNER"), AND THE LIMITED PARTNERS LISTED ON EXHIBIT
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A HERETO (THE "LIMITED PARTNERS"). THE LIMITED PARTNERS AND THEIR PERMITTED
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TRANSFEREES AND ASSIGNEES ARE HEREIN REFERRED TO INDIVIDUALLY AS A "HOLDER" AND
COLLECTIVELY, AS "HOLDERS".
RECITALS
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WHEREAS, PURSUANT TO THE SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP OF XXXXXXXX PARTNERSHIP 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 PARTNERSHIP INTERESTS IN
CERTAIN ASSETS IN EXCHANGE FOR THE UNITS OF LIMITED PARTNERSHIP INTEREST IN THE
PARTNERSHIP AS SET FORTH ON EXHIBIT A HERETO (THE "PARTNERSHIP UNITS");
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WHEREAS, THE PARTIES HERETO DESIRE TO SET FORTH CERTAIN RIGHTS OF THE
LIMITED PARTNERS AS HOLDERS OF THE PARTNERSHIP UNITS;
NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL PROMISES AND
AGREEMENTS CONTAINED IN THIS AGREEMENT, THE PARTIES HERETO AGREE AS FOLLOWS:
AGREEMENT
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ARTICLE I
DEFINITIONS
Capitalized terms not otherwise defined when first used herein shall have
the meanings set forth in the Partnership Agreement.
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ARTICLE II
SHELF REGISTRATION
2.1. Shelf Registration. The Company agrees to file with the Commission a
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shelf registration statement pursuant to Rule 415 of the Securities Act, or
similar rule that may be adopted by the Commission (the "Shelf Registration"),
at a time and in a manner reasonably designed to cause the Shelf Registration to
be declared effective by the Commission 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 Partnership Units (the "Exchange Shares"). The Company will use its
reasonable best efforts to cause the Shelf Registration to be declared effective
under the Securities Act as soon as reasonably possible after filing. The
Company will use its reasonable best efforts to keep the Shelf Registration
continuously effective until the earlier of (a) the date when all of the
Exchange Shares covered thereby are issued or sold thereunder, (b) the date on
which all limited Partners then holding Partnership Units agree to the
withdrawal of the Registration Statement or (c) the first date on which all of
the Exchange Shares covered thereby could, in the opinion of counsel for the
Company, be sold in any three month period pursuant to Rule 144 under the
Securities Act or any successor rule thereto (the "Shelf Registration Period").
The Company further agrees to supplement or make amendments to the Shelf
Registration, if required by the rules, regulations, or instruction applicable
to the registration form utilized by the Company or by the Securities Act or
rules and regulations thereunder for the 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:
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(a) use its reasonable best efforts to cause the Shelf Registration
to be declared effective by the Commission as soon after filing as reasonably
possible;
(b) use its reasonable best efforts to keep the Shelf Registration
effective and the related prospectus current throughout the Shelf Registration
Period;
(c) furnish to each Limited Partner such numbers of copies of the
relevant prospectuses, and supplements or amendments thereto, and such other
related documents as they may reasonably request; and
(d) use its reasonable best efforts to register or qualify the
securities covered by the Shelf Registration under applicable state securities
or blue sky laws; provided however, that the Company shall not be required to
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(i) qualify as a foreign corporation or consent to a general and unlimited
service of process in any jurisdiction in which it would not otherwise be
required to be qualified or so consent or (ii) qualify as a dealer in
securities.
2.3. Allocation of Expenses. The Partnership or the Company shall pay all
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expenses in connection with the Shelf Registration, including, without
limitation (a) Commission registration
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fees, (b) printing expenses, (c) accounting and legal fees and expenses for the
Company and the Partnership (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 Partnership nor the Company shall
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be liable for (i) any discounts or commissions to any broker attributable to any
sale of Exchange Shares, or (ii) any fees or expenses incurred by holders of
Exchange Shares in connection with such registration which, according to the
written instructions of any regulatory authority, the Partnership or the Company
is not permitted to pay.
2.4. Indemnification. In connection with the Shelf Registration, the
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Company, the General Partner, and the Partnership agree to indemnify holders of
Partnership Units and Exchange Shares in accordance with the provisions of
Article III hereof.
ARTICLE III
INDEMNIFICATION
3.1. Indemnification by the Company, the General Partner, and the
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Partnership. The Company, the General Partner, and the Partnership agree to
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indemnify and hold harmless the Limited Partners, the directors and officers of
any corporate Limited Partner, and each Person (if any) who controls a corporate
Limited Partner within the meaning of Section 15 of the Securities Act, against
any and all losses, claims, damages, or liabilities to which they or any of them
may become subject under the Securities Act or any other statute or common law,
including any amount paid in settlement of any litigation, commenced or
threatened, if such settlement is effected with the written consent of the
Company, and to reimburse them for any legal or other expenses incurred by them
in connection with investigating any claims and defending any actions, insofar
as any such losses, claims, damages, liabilities, or actions arise out of or are
based upon (a) any untrue statement or alleged untrue statement of a material
fact contained in 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
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in this Section 3.1 shall not apply to the extent of any such losses, claims,
damages, liabilities, or actions arise out of, or are 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 written information furnished to the Company by the Limited
Partners specifically for use in connection with preparation of any
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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.
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(a) Each indemnified party shall, with reasonable promptness after
its receipt of written notice of the commencement of any action against such
indemnified party in respect of which indemnity may be sought from an
indemnifying party on account of an indemnity agreement contained herein,
notify the indemnifying party in writing of the commencement thereof.
(b) The omission to notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party unless the
failure to give notice materially adversely affects the ability of the
indemnifying party to defend a claim which is the subject of indemnification
hereunder (in which case the indemnifying party shall be relieved of its
obligation only to the extent of offsetting any loss, damage, or liability it
suffers as a consequence of the failure against its monetary obligation to the
indemnified party).
(c) In case any such action shall be brought against any indemnified
party and the indemnifying party shall so notify an indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and to the extent it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party and, after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
hereunder for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation, except as provided below.
(d) The indemnified party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such 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.
(e) The indemnity agreements contained herein shall be in addition to
any liabilities which the indemnifying party may have pursuant to law.
3.3. Contribution
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(a) If for any reason the indemnification provisions contemplated
herein are either unavailable or insufficient to hold harmless an indemnified
party in respect of any losses, claims, damages, or liabilities referred to
therein, then the party that otherwise would be required
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to provide indemnification or the indemnifying party (in either case, for
purposes of this section, the "Indemnifying Party") in respect of such losses,
claims, damages, or liabilities, shall contribute to the amount paid or payable
by the party that would otherwise be entitled to indemnification or the
indemnified party (in either case, for purposes of this section, the
"Indemnified Party") as a result of such losses, claims, damages, liabilities,
or expense, in such proportion as is appropriate to reflect the relative fault
of the Indemnifying Party and the Indemnified Party, as well as any other
relevant equitable considerations. The relative fault of the Indemnifying Party
and Indemnified Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact related to information supplied by the
Indemnifying Party or Indemnified Party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities, and expenses referred to above shall be
deemed to include any legal or other fees or expenses reasonably incurred by
such party.
(b) The parties hereto agree that it would not be just and equitable
if contribution pursuant to this section were determined by pro rata allocation
(even if the holders or any underwriters or all of them were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. No person or entity determined to have committed a
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person or entity who
was not guilty of such fraudulent misrepresentation.
ARTICLE IV
GENERAL
4.1 Notices. All notices, requests, demands and other communications
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hereunder shall be in writing and shall be delivered by hand, transmitted by
facsimile transmission, or sent prepaid by international courier, to the Limited
Partners at their addresses as set forth on the books of the Partnership.
Notices to the Company, the Partnership and the General Partner shall be
delivered at or mailed to Xxxxxxxx Properties I, Inc., 0000 Xxxx Xxxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000. The Company, the Partnership and the
General Partner may specify a different address by written notice to the Limited
Partners. Any Limited Partners may specify a different address by written notice
to the Company. Any notice, request, demand or other communication delivered or
sent in the manner aforesaid shall be deemed given or made (as the case may be)
when delivered by hand or confirmed by facsimile transmission, or, in the case
of delivery by courier, when actually delivered to the address of the intended
recipient.
4.2 Entire Agreement. This Agreement and exhibits attached hereto
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constitute the entire agreement of the parties and supersede all prior written
agreements and prior and contemporaneous oral agreements, understandings and
negotiations with respect to the subject matter hereof.
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4.3. Pronouns and Plurals. When the context in which words are used in
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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
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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,
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each of which shall be deemed to be an original copy and all of which together
shall constitute one and the same instrument binding on all parties hereto,
notwithstanding that all parties shall not have signed the same counterpart.
4.6. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Texas.
4.7. Assignment and Confirmation. This Agreement may be assigned by a
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Limited Partner only upon the written consent of the Company. It shall be a
condition to any Person succeeding to the rights of a Limited Partner as
permitted herein that such Person, if requested by the Company, execute a
counterpart to this Agreement and become a party hereto.
4.8. Amendment. This Agreement may be amended by written agreement
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executed by the Company, the General Partner, the Partnership and each Limited
Partner to be bound thereby.
4.9. Authority; Binding Effect. Each party hereto represents and warrants
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to the other parties that it has the full legal right, power and authority to
execute this Agreement, that this Agreement has been duly authorized, executed
and delivered on behalf of such party and constitutes a valid and binding
agreement of such party enforceable in accordance with its terms.
4.10. Counterparts. This Agreement may be executed in several counterparts,
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each of which shall be deemed an original, but such counterparts shall together
constitute but one and the same Agreement.
4.11. Application of Agreement. This Agreement shall apply only to the
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Partnership Units listed on Exhibit A and the Exchange Shares issuable in
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respect thereof.
4.12. Lock Up. Each Limited Partner agrees that, at any time following the
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date of this Agreement it will not sell Exchange Shares representing more than
10% of the average weekly trading value of the Company's Common Stock on the
principal securities exchange upon which that Common Stock is listed in any one
(1) week period. The Limited Partners agree that the certificates representing
any Exchange Shares may bear a legend referring to the foregoing restriction.
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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/ Xxxxxx X. August
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Name: Xxxxxx X. August
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Title: Vice President
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XXXXXXXX PROPERTIES ACQUISITION
PARTNERS, L.P.
By: XXXXXXXX PROPERTIES I, INC., its
general partner
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Vice President
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LIMITED PARTNERS
/s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
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EXHIBIT A
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Limited Partner Partnership Units
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Xxxxxxx X. Xxxxxxx 93,860
Xxxxxxx X. Xxxxxxxx 93,860
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EXHIBIT B
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NOTICE OF EXERCISE OF REDEMPTION RIGHT
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The undersigned hereby irrevocably (i) presents for redemption ________
units of limited partnership interest ("Units") in Xxxxxxxx Properties
Acquisition Partners, L.P. (the "Partnership") in accordance with the terms of
the Registration Rights Agreement, dated ___________, 1998 ("Agreement") and the
"Exchange Right" referred to in Section 8.05 of the Second Amended and Restated
Agreement of Limited Partnership of the Partnership (the "Partnership
Agreement"), (ii) surrenders such Units and all right, title and interest
therein, (iii) surrenders herewith any certificate or other writing evidencing
the Units (and requests that any Units so evidenced that are not redeemed be
evidenced by the issuance of a new certificate or writing) and (iv) directs that
the "Cash Amount" or "REIT Shares Amount" (as determined by the General
Partner), as defined in the Agreement, deliverable upon exercise of the
Redemption Rights be delivered to the address specified below, and if REIT
Shares are to be delivered, such Company Shares be registered or placed in the
name(s) and at the address(es) specified below.
Dated:________ ___, _______
Name of Limited Partner
_____________________________________
(Signature of Limited Partner)
_____________________________________
(Mailing Address)
_____________________________________
(City) (State) (Zip Code)
Signature Guaranteed by:
_____________________________________
IF REIT Shares are to be issued, issue
to:
_____________________________________
_____________________________________
_____________________________________
Please insert social security or
identifying number:
_____________________________________
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