EXHIBIT 10.7
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is hereby made as of the ___ day of
_________________ 1998 (this "Agreement"), by HORIZON GROUP PROPERTIES, INC., a
Maryland corporation (the "Company") and HORIZON GROUP PROPERTIES, L.P., a
Delaware limited partnership (the "Operating Partnership") for the benefit of
those Persons (as defined herein) who own Common Units (as defined herein) and
their respective successors, assigns and transferees (herein referred to
collectively as the "Holders" and individually as a "Holder").
W I T N E S S E T H:
WHEREAS, the Company intends to issue shares of common stock, par value
$.01 per share (the "Common Stock");
WHEREAS, the Operating Partnership intends to issue common units of
partnership interest (the "Common Units");
WHEREAS, the Common Units will, under certain conditions, be exchangeable
for shares of Common Stock (the "Shares"); and
WHEREAS, the Company has agreed to provide the Holders with certain
registration rights as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and undertakings
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and subject to and on the terms
and conditions herein set forth, the parties hereto agree as follows:
ARTICLE 1
CERTAIN DEFINITIONS
1.1 "Business Day" means any day on which the NASDAQ National Market is
open for trading.
1.2 "Common Stock" shall have the meaning set forth in the preamble.
1.3 "Eligible Securities" means all or any portion of shares of Common
Stock issued in exchange for Common Units in accordance with the Partnership
Agreement. As to any proposed offer or sale of Eligible Securities, such
securities shall cease to be Eligible Securities with respect to such proposed
offer or sale when (i) a registration statement with respect to the sale of such
securities shall have become effective under the Securities Act and such
securities shall have been disposed of in accordance with such registration
statement, (ii) such securities are permitted to be sold pursuant to Rule 144
(or any successor provision to such Rule) under the Securities Act to be
confirmed in a written opinion of counsel to the Company addressed to the
Holders, or (ii) such securities shall have been otherwise transferred pursuant
to an applicable exemption under the Securities Act, new certificates for such
securities not bearing a legend restricting further transfer shall have been
delivered by the Company and such securities shall be freely transferable to the
public without registration under the Securities Act.
1.4 "Merger Agreement" means that certain Amended and Restated Merger
Agreement dated as of February 1, 1998 by and among Prime Retail, Inc., Prime
Retail, L.P., Horizon Group, Inc., Horizon/Xxxx Outlet Centers Limited
Partnership and the other signatories thereto, as amended.
1.5 "Partnership Agreement" means the agreement of limited partnership
governing the Operating Partnership, as amended.
1.6 "Person" means an individual, a partnership (general or limited),
corporation, joint venture, business trust, cooperative, associations or other
form of business organization, whether or not regarded as a legal entity under
applicable law, a trust (inter vivos or testamentary), an estate of a deceased,
insane or incompetent person, a quasi-governmental entity, a government or any
agency, authority, political subdivision or other instrumentality thereof, or
any other entity.
1.7 "Registration Expenses" means all expenses incident to the Company's
performance of or compliance with the registration requirements set forth in
this agreement including, without limitation, the following: (i) the fees,
disbursement and expenses of the Company's counsel(s), accountants and experts
in connection with the registration of Eligible Securities to be disposed of
under the Securities Act; (ii) all expenses in connection with the preparation,
printing and filing of the registration statement, any preliminary prospectus or
final prospectus, any other offering document and amendments and supplements
thereto and the mailing and delivering of copies thereof to the underwriters and
dealers; (iii) the cost of printing or producing any agreement(s) among
underwriters, underwriting agreement(s) and blue sky or legal investment
memoranda, any selling agreements and any other documents in connection with
the offering, sale or delivery of Eligible Securities to be disposed of; (iv)
SEC or blue sky registration fees attributable to Eligible Securities; (v) all
expenses in connection with the qualification of Eligible Securities to be
disposed of for offering and sale under state securities laws, including the
fees and disbursements of counsel for the underwriters in connection with such
qualification and in connection with any blue sky and legal investment surveys;
(v) the filing fees incident to securing any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of Eligible
Securities to be disposed of; and (vi) fees and expenses incurred in connection
with the listing of Eligible Securities on each securities exchange on which
securities of the same class are then listed; PROVIDED, however, that
Registration Expenses with respect to any registration pursuant to this
Agreement shall not include underwriting discounts or commissions attributable
to Eligible Securities, or transfer taxes applicable to Eligible Securities.
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1.8 "SEC" means the Securities and Exchange Commission
1.9 "Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC thereunder, all as the same shall be in effect
at the relevant time.
1.10 "Selling Holder" means any Holder having Eligible Securities
registered pursuant to Article 3 or 4 hereof.
ARTICLE 2
EFFECTIVENESS OF REGISTRATION RIGHTS
2.1 EFFECTIVENESS OF REGISTRATION RIGHTS. This Agreement shall become
effective upon the date of the closing of the transactions contemplated by the
Merger Agreement (the "Effective Date").
ARTICLE 3
INCIDENTAL REGISTRATION
3.1 NOTICE AND REGISTRATION. If, at any time on or after the first
anniversary of the Effective Date, the Company proposes to register any shares
of Common Stock or other securities ("Other Securities") issued by it having
terms substantially similar to Eligible Securities for public sale under the
Securities Act in a manner which would permit registration of Eligible
Securities for sale of the public under the Securities Act, it will give prompt
written notice to Holders of its intention to do so, and upon the written
request of Holders delivered to the Company within five (5) Business Days after
the giving of any such notice (which request shall specify the number of
Eligible Securities intended to be disposed of by the Selling Holders and the
intended method of disposition thereof) the Company will use all reasonable
efforts to effect, in connection with the registration of the Other Securities,
the registration under the Securities Act of all Eligible Securities which the
Company has been so requested to register by the Selling Holders, to the extent
required to permit the public sale (in accordance with the intended method or
methods thereof as aforesaid) of Eligible Securities so to be registered,
PROVIDED that:
(a) If, at any time after giving such written notice of its intention
to register any Other Securities and prior to the effective date of the
registration statement filed in connection with such registration, the
Company shall determine for any reason not to register the Other
Securities, the Company may, at its election, give written notice of such
determination to Holders and thereupon the Company shall be relieved of its
obligation to register such Eligible Securities in connection with the
registration of such Other Securities (but not from its obligation to pay
Registration Expenses to the extent incurred in connection therewith as
provided in Section 3.2);
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(b) The Company will not be required to effect any registration
pursuant to this Article 3 if the Company shall have been advised in
writing by a nationally recognized independent investment banking firm
selected by the Company to act as lead underwriter in connection with the
public offering of the Other Securities by the Company that, in such firm's
opinion, a registration pursuant to this Article 3 at that time may
materially and adversely effect the Company's own scheduled offering; and
(c) The Company shall not be required to effect any registration of
Eligible Securities under this Article 3 incidental to the registration of
any of its securities in connection with mergers, acquisitions, exchange
offers, subscriptions offers, dividend reinvestment plans or stock options
or other employee benefit plans.
(d) In no event shall the Company be required to register Eligible
Securities unless such Eligible Securities have a market value of less than
$250,000, or such lesser amount as the Company may agree, on the date that
the Company gives notice to Holders pursuant to this Section 3.1 of its
intention to file a registration statement under the Securities Act.
3.2 REGISTRATION EXPENSES. The Company (as between the Company and the
Selling Holders) shall be responsible for the payment of all Registration
Expenses in connection with any registration pursuant to this Article 3.
ARTICLE 4
REGISTRATION REQUEST
4.1 NOTICE. Upon written notice from an Holder delivered on or after the
90th day following the Effective Date requesting that the Company effect the
registration under the Securities Act of all or part of the Eligible Securities
held by such Holder, which notice shall specify the intended method or methods
of disposition of such Eligible Securities, the Company will use reasonable
efforts to effect (at the earliest possible date) the registration, under the
Securities Act, of such Eligible Securities for disposition in accordance with
the intended method or methods of disposition stated in such request, PROVIDED
THAT:
(a) in no event shall the Company be required to file a registration
statement pursuant to this Article 4 unless the Holder or other Holders
requesting such a registration statement intend to register for sale as of
the date of such demand, Eligible Securities having a market value of not
less than $1,000,000 or such lesser amount as the Company may agree;
(b) in the event the Company is not eligible to use Form S-3
promulgated under the Securities Act or any successor "short form"
registration statement, the Company may defer such registration request
until the Company is eligible to use said Form S-3 or a suitable successor
form;
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(c) if the Company shall have previously effected a registration with
respect to Eligible Securities owned by any Holder whether pursuant to
Article 3 or this article 4, the Company shall not be required to effect a
registration pursuant to this Article 4 until a period of one year shall
have elapsed from the effective date of the most recent such previous
registration;
(d) if, upon receipt of a registration request pursuant to this
Article 4, the Company is advised in writing by a nationally recognized
independent investment banking firm selected by the Company to act as lead
underwriter in connection with a public offering of securities by the
Company that, in such firm's opinion, a registration at the time and on the
terms requested would materially adversely affect such public offering of
securities by the Company (a "Company Offering") that had been contemplated
by the Company prior to the notice by the Holders who initially requested
registration, the Company shall not be required to effect a registration
pursuant to this Article 4 until the earliest of (i) three months after the
completion of such Company Offering, (ii) the termination of any "black
out" period, if any, required by the underwriters ti be applicable to the
Selling Holders in connection with such Company Offering, (iii) promptly
after abandonment of such Company Offering or (iv) four months after the
date of written notice from the Holder who initially requested
registration;
(e) if while a registration request is pending pursuant to this
Article 4, the Company determines, in the good faith judgment of the Board
of Directors of the Company, with the advice of counsel, that the filing of
a registration statement would require the disclosure of non-public
material information the disclosure of which would have a material adverse
effect on the Company or would otherwise adversely affect a material
financing, acquisition, disposition, merger or other significant
transaction, the Company shall deliver a certificate to such effect signed
by its President or any Vice President to the proposed Selling Holders and
the Company shall not be required to effect a registration pursuant to this
Article 4 until the earlier of (i) the date upon which such material
information is disclosed to the public or ceases to be material or (ii) 90
days after the Company makes such good faith determination; and
(f) the Company shall not be required to effect more than one
registration pursuant to this Article 4 in any calendar year for all
holders of Eligible Securities who hold registration rights under this
Agreement. No registration of Eligible Securities under this Article 4
shall relieve the Company of its obligation (if any) to effect registration
of Eligible Securities pursuant to Article 3.
4.2 REGISTRATION EXPENSES. With respect to the registrations requested
pursuant to this Article 4, the Company shall pay all Registration Expenses.
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ARTICLE 5
REGISTRATION PROCEDURES
5.1 REGISTRATION AND QUALIFICATION.
(a) If and whenever the Company is required to use reasonable
commercial efforts to effect the registration of any Eligible Securities
under the Securities Act as provided in Article 3 and 4 hereof, the Company
will as promptly as is practicable register the Eligible Securities under
the Securities Act and use reasonable commercial efforts to cause
Registration Statement to become effective;
(b) The Company shall (i) prepare and file with the SEC such
amendments and supplements to such Registration Statement and the
prospectus used in connection therewith as may be necessary to keep such
Registration Statement effective; (ii) comply with the provisions of the
Securities Act with respect to the disposition of all Eligible Securities
until the earlier of such time as all of such Eligible Securities have been
disposed of in accordance with the intended methods of disposition by the
Selling Holders as set forth in the Registration Statement or the
expiration of thirty (30) days after such Registration Statements has
become effective; provided, however, that in the event that the Company
shall notify any Selling Holder of the happening of any event which would
cause the prospectus included as part of such Registration Statement, as
then in effect, not to include an untrue statement of a material face to
omit to state any material fact required to be state therein or necessary
to made the statements therein, in light of the circumstance under which
they were made, not misleading, such Selling Holder shall thereafter sell
no shares under such Registration Statement until the Company has filed an
amendment or supplement to the prospectus to cause the prospectus not to
include an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, and the Company shall be obligated to continue to so
amend or supplement the prospectus for such period of time as the
prospectus has for an aggregate of thirty (30) days not included in an
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
and
(c) The Company may require the Selling Holders to furnish to the
Company such information regarding the Selling Holders and the distribution
of the Eligible Securities as the Company may from time to time reasonably
request in writing and as shall be required by law or by the SEC in
connection with any registration.
5.2 UNDERWRITING In the event that any registration pursuant to Article 3
hereof shall involve, in whole or in part, an underwritten offering, the Company
may require Eligible Securities requested to be registered pursuant to Article 3
to be included in such underwriting on the same
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terms and conditions as shall be applicable to the Other Securities being
sold through underwriters under such registration. In such case, the holders
of Eligible Securities on whose behalf Eligible Securities are to be
distributed by such underwriters shall be parties to any such underwriting
agreement. Such agreement shall contain such representations and warranties
by the Selling Holders and such other terms and provisions as are customarily
contained in underwriting agreements with respect to secondary distributions,
including, without limitation, indemnities and contribution to the effect and
to the extent provided in Article 6. The representations and warranties in
such underwriting agreement by, and the other agreements on the part of, the
Company to and for the benefit of such underwriters shall also be made to and
for the benefit of such holders of Eligible Securities. Notwithstanding the
foregoing, any Selling Holder may elect, in writing prior to the effective
date of the registration statement filed in connection with such
registration, not to register its Eligible Securities pursuant to such
registration.
ARTICLE 6
INDEMNIFICATION AND CONTRIBUTION
6.1 INDEMNIFICATION AND CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY AND THE OPERATING PARTNERSHIP.
The Company and the Operating Partnership, jointly and severally, agree to
indemnify and hold harmless each Holder, each Person, if any, who participates
as an underwriter in the offering or sale of Eligible Securities hereunder, each
officer and director of such Holder and underwriter, and each Person, if any,
who controls any Holder or such underwriter within the meaning of Section 15 of
the Securities Act as follows;
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment thereto) pursuant to which
Eligible Securities were registered under the Securities Act,
including all documents incorporated therein by reference, or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
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(iii) against any and all expense whatsoever, as incurred
(including reasonable fees and disbursements of counsel), reasonably
incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency
or body, commenced or threatened, in each case whether or not a party,
or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under subparagraph (i) or
(ii) above;
PROVIDED, HOWEVER, that the indemnity provided pursuant to this Section 6.1(a)
does not apply to any Holder or underwriter with respect to any loss, liability,
claim, damage or expense to the extent arising out of any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company or the Operating
Partnership by such Holder expressly for use in a Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement thereto).
(b) INDEMNIFICATION BY THE HOLDERS AND UNDERWRITERS. Each Holder
severally agrees, and with respect to any underwriter the Company and the
Operating Partnership may require an undertaking reasonably satisfactory to the
Company and the Operating Partnership from such underwriter, to indemnify and
hold harmless the Company, the Operating Partnership and the other selling
Holders, and each of their respective directors and officers (including each
director and officer of the Company who signed the Registration Statement), and
each Person, if any, who controls the Company, the Operating Partnership or any
other selling Holder within the meaning of Section 15 of the Securities Act, to
the same extent as the indemnity contained in Section 6.1(a) hereof (except that
any settlement described in Section 6.1(c) shall be effected only with the
written consent of such Holder), but only insofar as such loss, liability,
claim, damage or expense arises out of or is based upon (i) any untrue statement
or omission, or alleged untrue statements or omissions, made in a Registration
Statement (or any amendment thereto) or any Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company or the Operating Partnership by such selling Holder or
underwriter expressly for use in such Registration Statement (or any amendment
thereto) or such Prospectus (or any amendment or supplement thereto), or (ii)
such Holder's failure to deliver a Prospectus to any purchaser of Eligible
Securities where such a delivery obligation was applicable to such Holder's sale
of Eligible Securities and such Holder had been provided with sufficient copies
of such Prospectus for the relevant deliveries thereof. In no event shall the
liability of any Holder under this Section 6.1(b) be greater in amount than the
dollar amount of the net proceeds received by such Holder upon the sale of the
Eligible Securities giving rise to such indemnification obligation.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Each indemnified party shall
give reasonably prompt notice to each indemnifying party of any action or
proceeding commenced against it in inspect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party (i) shall not relieve
it from any liability which it may have under the indemnity agreement provided
in Section 6.1(a) or (b) above, unless and to the extent it did not otherwise
learn of such action and the lack of notice by the indemnified party results in
the forfeiture by the
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indemnifying party of substantial rights and defenses and (ii) shall not, in
any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided under
Section 6.1(a) or (b) above. If the indemnifying party so elects within a
reasonable time after receipt of such notice, the indemnifying party may
assume the defense of such action or proceeding at such indemnifying party's
own expense with counsel chosen by the indemnifying party and approved by the
indemnified parties defendant in such action or proceeding, which approval
shall not be unreasonably withheld; PROVIDED, HOWEVER, that, if such
indemnified party or parties reasonably determine that a conflict of interest
exists where it is advisable for such indemnified party or parties to be
represented by separate counsel or that, upon advice of counsel, there may be
legal defenses available to them which are different from or in addition to
those available to the indemnifying party, then the indemnifying party shall
not be entitled to assume such defense and the indemnified party or parties
shall be entitled to one separate counsel at the indemnifying party's
expense. If an indemnifying party is not entitled to assume the defense of
such action or proceeding as a result of the proviso to the preceding
sentence, such indemnifying party's counsel shall be entitled to conduct the
defense of such indemnified party or parties, it being understood that both
such counsel will cooperate with each other to conduct the defense of such
action or proceeding as efficiently as possible. If an indemnifying party is
not so entitled to assume the defense of such action or does not assume such
defense, after having received the notice referred to in the first sentence
of this paragraph, the indemnifying party or parties will pay the reasonable
fees and expenses of counsel for the indemnified party or parties. In such
event, however, no indemnifying party will be liable for any settlement
effected without the written consent of such indemnifying party. If an
indemnifying party is entitled to assume, and assumes, the defense of such
action or proceeding in accordance with this paragraph, such indemnifying
party shall not be liable for any fees and expenses of counsel for the
indemnified parties incurred thereafter in connection with such action or
proceeding. Any settlement effected by the Company or the Operating
Partnership shall also release each Holder that has sold securities pursuant
to the Registration Statement, provided such Holder is entitled to
indemnification with respect to such sale pursuant to this Section 4. The
indemnification obligations provided pursuant to Section 6.1(a) and (b)
hereof survive, with respect to a Holder, the transfer of Eligible Securities
by such Holder, and with respect to a Holder, the Company or the Operating
Partnership, shall remain in full force and effect regardless of any
investigation made by or on behalf of any indemnified party.
(d) CONTRIBUTION.
(i) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in this
Section 6.1 is for any reason held to be unenforceable although
applicable in accordance with its term, the Company and the Operating
Partnership, jointly and severally, on the one hand, and the selling
Holders, on the other, shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated
by such indemnity agreement incurred by the Company and the Operating
Partnership, jointly and severally, and the selling Holders, in such
proportion as is appropriate to reflect the relative fault of the
Company and the Operating Partnership on the one hand and
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the selling Holders on the other (in such proportions that the
selling Holders are severally, not jointly, responsible for the
balance), in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or expenses,
as well as any other relevant equitable considerations. The
relative fault of the indemnifying party and indemnified parties
shall be determined by reference to, among, other things, whether
the action in question, including any untrue or alleged untrue
statement of a 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 the indemnified parties, and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such action.
(ii) The Company, the Operating Partnership and the Holders agree
that it would not be just or equitable if contribution pursuant to
this Section 6.1(d) 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 6.1(d), no
selling Holder shall be required to contribute any amount in excess of
the amount by which the total price at which the Eligible Securities
of such selling Holder were sold to the public exceeds the amount of
any damages which such selling Holder would otherwise have been
required to pay by reason of such untrue statement or omission.
(iii) Notwithstanding the foregoing, 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. For purposes
of this Section 6.1(d), each Person, if any, who controls a Holder
within the meaning of Section 15 of the Securities Act and directors
and officers of a holder shall have the same rights to contribution as
such Holder, and each director of the Company, each officer of the
Company who signed the Registration Statement and each Person, if any,
who controls the Company within the meaning of Section 15 of the
Securities Act shall have the same rights to contribution as Company.
(iv) The contribution provided for in this Section 6.1(d) shall
survive, with respect to a Holder, the transfer of Eligible Securities
by such Holder, and with respect to a Holder, the Company or the
Operating Partnership, shall remain in full force and effect
regardless of any investigation made by or on behalf of any
indemnified party.
ARTICLE 7
BENEFITS
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7.1 BENEFITS OF REGISTRATION RIGHTS. Subject to the limitations of
Sections 3.1 and 4.1 hereof, Holders may severally or jointly exercise the
registration rights hereunder in such manner and in such proportion as they
shall agree among themselves.
7.2 QUALIFICATION FOR RULE 144 SALES. The Company will take all actions
reasonably necessary to comply with the filing requirements described in Rule
144(c)(1) so as to enable the Holders to sell Eligible Securities without
registration under the Securities Act and, upon the written request of any
Holder, the Company will deliver to such Holder a written statement as to
whether it has complied with such filing requirements.
ARTICLE 8
MISCELLANEOUS
8.1 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 Holders of a majority
in amount of the outstanding Eligible Securities; provided, however, that no
amendment, modification or supplement or waiver or consent that adversely
effects any rights under this Agreement shall be effective as against any Holder
of Eligible Securities unless consented to in writing by such Holder. Notice of
any amendment, modification or supplement to this Agreement adopted in
accordance with this Section 8.1(a) shall be provided by the Company to each
Holder of Eligible Securities at least thirty (30) days prior to the effective
date of such amendment, modification or supplement.
8.2 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 a Holder, at the most current address given by such Holder
to the Company by means of a notice given in accordance with the provisions of
this Section 8.2(b), which address initially is, with respect to each Holder,
the address set forth next to such Holder's name on the books and records of the
Company, or (b) if to the Company or the Operating Partnership, at:
_____________________________.
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; or at
the time delivered if delivered by an air courier guaranteeing overnight
delivery.
8.3 SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the successors, assigns and transferees of each of the
Company, Operating Partnership and the Holders, including without limitation and
without the need for an express assignment, subsequent Holder. If any
successor, assignee or transferee of any Holder shall acquire Eligible
Securities or Units, in any manner, whether by operation of law or otherwise,
such Eligible Securities or Xxxxx,
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as the case may be, shall be held subject to all of the terms of this
Agreement, and taking and holding such Eligible Securities or Units such
Person shall be entitled to receive the benefits hereof and shall be
conclusively deemed to have agreed to be bound by all of the terms and
provisions hereof.
8.4 HEADINGS. The headings in this Agreement are for the convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
8.5 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLAND WITHOUT GIVING EFFECT TO THE
CONFLICTS OF LAW PROVISIONS THEREOF.
8.6 SPECIFIC PERFORMANCE. The Company and the Holders 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 compel specific performance of the obligations of any other party
under this Agreement in accordance with the terms and conditions of this
Agreement in any court of the United States or any State thereof having
jurisdiction.
8.7 ENTIRE AGREEMENT. This Agreement is intended by the Company as a
final expression of its agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the Company in respect of the
subject matter contained herein. This Agreement supersedes all prior agreements
and understandings of the Company with respect to such subject matter.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused this Agreement to be executed as of the day and year first above written.
HORIZON GROUP PROPERTIES, INC.
BY: --------------------------
NAME: -------------------
TITLE:-------------------
HORIZON GROUP PROPERTIES, L.P.
BY: HORIZON GROUP PROPERTIES,
INC.
BY: --------------------------
NAME: -------------------
TITLE:-------------------
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