EXHIBIT 4.5
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REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement) is entered into
as of the 31st day of March, 2001 by and among AMLI Residential Properties
Trust, a Maryland real estate investment trust ("Trust), AMLI Residential
Properties, L.P., a Delaware limited partnership ("Operating Partnership),
Morton J. Harris, as Trustee of the Mort Trust, under agreement dated
January 8, 1993, as amended and restated by agreement dated August 10,
1999, and Morris Weiser, as Trustee of the Morris Trust, under agreement
dated December 31, 1992, as amended and restated by agreement dated May 16,
1996 (collectively the "Unit Holders).
WHEREAS, pursuant to that certain Units Agreement, dated as of
March 31, 2001 between the Trust, the Operating Partnership and the Unit
Holders (the "Units Agreement), the Unit Holders are being issued units of
limited partnership interest in the Operating Partnership ("Units), which
are exchangeable for common shares of beneficial interest, par value $.01
per share (the "Shares), of the Trust as provided in the partnership
agreement of the Operating Partnership; and
WHEREAS, in connection with the Units Agreement, the Trust has agreed
to register for sale by the Unit Holders the Shares issuable to Unit
Holders upon exchange of Units issued pursuant to the Units Agreement (the
"Registrable Shares); and
WHEREAS, the parties hereto desire to enter into this Agreement to
evidence the foregoing agreement of the Trust and the mutual covenants of
the parties relating thereto;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants, agreements and warranties contained herein and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows
1. CERTAIN DEFINITIONS. In this Agreement, the following terms
shall have the following respective meanings:
"Affiliate shall mean, when used with respect to any Person,
another Person which directly, or indirectly through one or more
intermediaries, controls or is controlled by or is under common control
with the Person specified.
"Closing Date shall mean March 31, 2001.
"Commission shall mean the Securities and Exchange Commission
or any other federal agency at the time administering the Securities Act.
"Exchange Act shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission thereunder, all
as the same are in effect at the relevant time.
"Holders shall mean (a) Unit Holders and (b) each Person
holding Registrable Shares as a result of a transfer or assignment to such
Person of Registrable Shares which is not prohibited by any agreement, law
or regulation, other than pursuant to an effective registration statement
or Rule 144.
"Lock-up Period shall mean a period of six (6) months from the
Closing Date.
"Person shall mean an individual, corporation, partnership,
limited liability company, estate, trust, association, private foundation,
joint stock company or other entity.
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"Register, "Registered and "Registration refer to a
registration effected by preparing and filing a registration statement in
compliance with, and pursuant to Rule 415 under, the Securities Act
providing for the sale by the Holders of Registrable Shares in accordance
with the method or methods of distribution designated by the Holders, and
the declaration or ordering of the effectiveness of such registration
statement by the Commission.
"Rule 144" shall mean Rule 144 under the Securities Act.
"Securities Act shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the Commission thereunder, all as
the same are in effect at the relevant time.
2. REGISTRATION.
(a) The Trust shall, prior to the expiration of the
Lock-up Period, prepare and file with the Commission a registration
statement for the purpose of effecting a Registration of the sale of
Registrable Shares by the Holders thereof; shall use its best efforts to
effect such Registration as soon as practicable but not later than the
expiration of the Lock-up Period; and shall use its reasonable efforts
(including, without limitation, filing post-effective amendments and
appropriate qualification under applicable state securities and real estate
syndication laws) to keep such Registration with respect to a particular
Holder continuously effective until the earliest of (i) the date on which
all of such Holder's Registrable Shares have been sold pursuant to such
registration statement or Rule 144, or (ii) the date on which all of such
Holder's Registrable Shares may be sold in accordance with Rule 144(k);
PROVIDED, HOWEVER, that the Trust shall not be obligated to take any action
to effect any such Registration, qualification or compliance pursuant to
this Section 2 in any particular jurisdiction in which the Trust would be
required to execute a general consent to service of process in effecting
such Registration, qualification or compliance unless the Trust is already
subject to service in such jurisdiction. The Trust acknowledges that under
current interpretations of Rule 144, no tacking of the ownership period of
Units would be permitted in determining the ownership period of Registrable
Shares.
Notwithstanding the foregoing, the Trust shall have the right (the
"Suspension Right) to defer such filing (or suspend sales under any filed
registration statement or defer the updating of any filed registration
statement and suspend sales thereunder) for two periods of not more than 90
days each during any twelve-month period, if the Trust furnishes to the
Holders a certificate signed by the President or any other executive
officer or any Trustee of the Trust stating that, in the good faith
judgment of the Trust, it would be detrimental to the Trust and its
shareholders to file such registration statement or amendment thereto at
such time (or to continue sales under a filed registration statement) and
therefore the Trust has elected to defer the filing of such registration
statement (or to suspend sales under a filed registration statement).
Notwithstanding anything to the contrary contained herein, the Trust shall
use its best efforts to effect the Registration as soon as practicable but
not later than the expiration of the Lock-up Period.
(b) The Trust shall promptly notify the Holders of the
occurrence of the following events:
(i) when any registration statement relating to
the Registrable Shares or post-effective
amendment thereto filed with the Commission
has become effective;
(ii) the issuance by the Commission of any stop
order suspending the effectiveness of any
registration statement relating to the
Registrable Shares;
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(iii) the suspension of an effective registration
statement by the Trust in accordance with the
last paragraph of Section 2(a):
(iv) The Trust's receipt of any notification of
the suspension of the qualification of any
Registrable Shares covered by a registration
statement for sale in any jurisdiction; and
(v) the existence of any event, fact or
circumstance which results in a registration
statement or prospectus relating to
Registrable Shares or any document
incorporated therein by reference containing
an untrue statement of a material fact or
omitting to state a material fact required
to be stated therein or necessary to make the
statements therein not misleading during the
distribution of securities.
The Trust agrees to use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of any such
registration statement or any state qualification as promptly as possible.
(c) The Trust shall provide to the Holders, at no cost
to the Holders, a copy of the registration statement and any amendment
thereto used to effect the Registration of the Registrable Shares, each
prospectus contained in such registration statement or post-effective
amendment and any amendment or supplement thereto and such other documents
as the requesting Holders may reasonably request in order to facilitate the
disposition of the Registrable Shares covered by such registration
statement. The Trust consents to the use of each such prospectus and any
supplement thereto by the Holders in connection with the offering and sale
of the Registrable Shares covered by such registration statement or any
amendment thereto. The Trust shall also file a sufficient number of copies
of the prospectus and any post-effective amendment or supplement thereto
with any securities exchange or market on which the Shares are then listed
so as to enable the Holders to have the benefits of the prospectus delivery
provisions of Rule 153 under the Securities Act. Prior to the
effectiveness of a Registration of Registrable Shares held by the Holders,
the Trust shall provide to the Unit Holders a copy of the portion of the
applicable Registration that contains information furnished in writing by
the Holders for inclusion in such Registration Statement.
(d) The Trust agrees to use its best efforts to cause
the Registrable Shares covered by a registration statement to be registered
with or qualified or approved by such state securities authorities as may
be necessary to enable the Holders to consummate the disposition of such
shares pursuant to the plan of distribution set forth in the registration
statement.
(e) Subject to the Trust's Suspension Right, if any
event, fact or circumstance exists requiring an amendment to a registration
statement relating to the Registrable Shares or supplement to a prospectus
relating to the Registrable Shares, immediately upon becoming aware thereof
the Trust agrees to notify the Holders and to prepare and furnish to the
Holders a post-effective amendment to the registration statement or
supplement to the prospectus or any document incorporated therein by
reference or to file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Shares, the prospectus will
not contain 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.
(f) The Trust agrees to use its reasonable best efforts
(including the payment of any listing fees) to obtain the listing of all
Registrable Shares covered by the registration statement on each securities
exchange on which the Shares are then listed.
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(g) The Trust agrees to use its best efforts to comply
with the Securities Act and the Exchange Act and, as soon as reasonably
practicable following the end of any fiscal year during which a
registration statement effecting a Registration of the Registrable Shares
was effective, to make available to its security holders an earnings
statement satisfying the provisions of Section 11(a) of the Securities Act.
(h) The Trust agrees to cooperate with the selling
Holders to facilitate the timely preparation and delivery of certificates
representing Registrable Shares to be sold pursuant to a Registration and
not bearing any Securities Act legend; and to enable certificates for such
Registrable Shares to be issued for such numbers of shares and registered
in such names as the Holders may reasonably request at least two business
days prior to any sale of Registrable Shares.
3. EXPENSES OF REGISTRATION.
(a) The Trust shall pay all Registration Expenses
incurred in connection with the Registration, qualification or compliance
pursuant to Section 2. The term "Registration Expenses shall mean all
expenses (excluding Selling Expenses) incurred by the Trust in complying
with Section 2, including, without limitation, the following: (a) all
registration, filing and listing fees; (b) fees and expenses of compliance
with federal and state securities or real estate syndication laws
(including, without limitation, reasonable fees and disbursements of
counsel in connection with state securities and real estate syndication
qualifications of the Registrable Shares under the laws of such
jurisdictions as the Holders may reasonably designate); (c) printing
(including, without limitation, expenses of printing or engraving
certificates for the Registrable Shares in a form eligible for deposit with
The Depository Trust Company and otherwise meeting the requirements of any
securities exchange on which they are listed and of printing registration
statements and prospectuses), messenger, telephone, shipping and delivery
expenses; (d) fees and disbursements of counsel for the Trust; (e) fees and
disbursements of all independent public accountants of the Trust
(including, without limitation, the expenses of any annual or special audit
and "cold comfort" letters required by the managing underwriter); (f) fees
and expenses incurred in connection with the listing of the Registrable
Shares on each securities exchange on which securities of the same class
are then listed; and (g) fees and expenses associated with any filing with
the National Association of Securities Dealers, Inc. required to be made in
connection with the registration statement.
(b) All Selling Expenses incurred in connection with
the sale of Registrable Shares by any of the Holders shall be borne by the
Holder selling such Registrable Shares. The term "Selling Expenses" shall
mean all underwriting discounts, selling commissions and stock transfer
taxes applicable to any sale of Registrable Shares. Each Holder shall pay
the expenses of its own counsel.
4. INDEMNIFICATION.
(a) The Trust shall indemnify each Holder, each
Holder's officers and directors, and each person controlling such Holder
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, against all expenses, claims, losses, damages and liabilities
(including reasonable legal fees and expenses), arising out of or based on:
(1) any untrue statement (or alleged untrue statement) of a material fact
contained in any registration statement or prospectus relating to the
Registrable Shares, or any amendment or supplement thereto, (ii) 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 or (iii) any violation or alleged violation by the Trust of the
Securities Act, the Exchange Act, any state securities law or any rule or
regulation promulgated under the Securities Act, the Exchange Act or any
state securities law, and the Trust will reimburse such Holder, its
officers, directors and each person controlling such Holder for any
reasonable legal or other expenses incurred by them in connection with
investigating or defending any such loss, claim, damage, liability, expense
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or action; PROVIDED, HOWEVER, that the Trust shall not be liable in any
such case to the extent that any such claim, loss, damage or liability
arises out of or is based on any untrue statement or omission or alleged
untrue statement or omission made in reliance on and in conformity with
information furnished in writing to the Trust by such Holder for inclusion
therein.
(b) Each Holder shall indemnify the Trust, each of its
trustees and officers, each underwriter, if any, of the Trust's securities
covered by such registration statement, and each person who controls the
Trust or such underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, each other Holder with
Registrable Shares covered by such registration statement, and each
officer, director and controlling person of each such other Holder, against
all expenses, claims, losses, damages and liabilities (including reasonable
legal fees and expenses) arising out of or based on any untrue statement
(or alleged untrue statement) of a material fact contained in any
registration statement or prospectus, or any amendment or supplement
thereto, or based on any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement or
prospectus in reliance on and in conformity with information furnished in
writing to the Trust or such underwriter by such Holder for inclusion
therein.
(c) Each party entitled to indemnification under this
Section 4 (the "Indemnified Party) shall give notice to the party required
to provide indemnification (the "Indemnifying Party) promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity
may be sought, but the omission to so notify the Indemnifying Party shall
not relieve it from any liability which it may have to the Indemnified
Party pursuant to the provisions of this Section 4 except to the extent of
the actual damages suffered by such delay in notification. The Indemnifying
Party shall assume the defense of such action, including the employment of
counsel to be chosen by the Indemnifying Party to be reasonably
satisfactory to the Indemnified Party, and payment of expenses. The
Indemnified Party shall have the right to employ its own counsel in any
such case, but the legal fees and expenses of such counsel shall be at the
expense of the Indemnified Party, unless the employment of such counsel was
authorized in writing by the Indemnifying Party in connection with the
defense of such action, or the Indemnifying Party did not employ counsel to
take charge of the defense of such action or the Indemnified Party
reasonably concluded that there may be defenses available to it or them
which are different from or additional to those available to the
Indemnifying Party (in which case the Indemnifying Party shall not have the
right to direct the defense of such action on behalf of the Indemnified
Party), in any of which events such fees and expenses shall be borne by the
Indemnifying Party. No Indemnifying Party, in the defense of any such claim
or litigation, shall, except with the consent of each Indemnified Party,
consent to the entry of any judgment or enter into any settlement 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 of such claim or litigation.
(d) If the indemnification provided for in this Section
4 is unavailable to a party which would have been an Indemnified Party
under this Section 4 in respect of any expenses, claims, losses, damages
and liabilities referred to herein, then each party which would have been
an Indemnifying Party hereunder shall, in lieu of indemnifying such
Indemnified Party, contribute to the amount paid or payable by such
Indemnified Party as a result of such expenses, claims, losses, damages and
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liabilities in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party on the one hand and such Indemnified Party
on the other in connection with the statement or omission which resulted in
such expenses, claims, losses, damages and liabilities, as well as any
other relevant equitable considerations. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Indemnifying Party or such Indemnified Party and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Trust and each holder of
Registrable Shares agree that it would not be just and equitable if
contribution pursuant to this Section were determined by pro rata
allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 4(d).
(e) No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(f) In no event shall any Holder be liable for any
expenses, claims, losses, damages or liabilities pursuant to this Section 4
in excess of the net proceeds to such Holder of any Registrable Shares sold
by such Holder.
(g) The provisions of this Section 4 shall survive the
sale of any Registrable Shares and any termination of this Agreement.
5. INFORMATION TO BE FURNISHED BY HOLDERS. Each Holder shall
furnish to the Trust such information as the Trust may reasonably request
and as is required in connection with the Registration and related
proceedings referred to in Section 2 (including without limitation the plan
of distribution). If any Holder fails to provide the Trust with such
information within three weeks of the Trust's request, the Trust's
obligations under Section 2 with respect to the Holders or the Registrable
Shares owned by the Holders shall be suspended until such Holders provide
such information.
6. RULE 144 SALES.
(a) The Trust covenants that it shall file the reports
required to be filed by the Trust under the Exchange Act, so as to enable
any Holder to sell Registrable Shares pursuant to Rule 144.
(b) In connection with any sale, transfer or other
disposition by any Holder of any Registrable Shares pursuant to Rule 144,
the Trust shall cooperate with such Holder to facilitate the timely
preparation and delivery of certificates representing Registrable Shares to
be sold and not bearing any Securities Act legend, and enable certificates
for such Registrable Shares to be for such number of shares and registered
in such names as the selling Holder may reasonably request at least two
business days prior to any sale of Registrable Shares.
(c) The provisions of this Section 6 shall survive the
termination of any obligation of the Trust to use its reasonable efforts to
maintain the effectiveness of any Registration until the applicable
Registrable Shares have been sold.
7. MISCELLANEOUS.
(a) 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 conflict of law provisions thereof.
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(b) ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter
hereof.
(c) AMENDMENT. No amendment, supplement, modification,
waiver or termination of this Agreement shall be binding unless executed in
writing by the party sought to be bound thereby.
(d) NOTICES, ETC. Unless otherwise provided herein,
any notice required or permitted under this Agreement shall be given in
writing, and shall be deemed effectively given (a) upon personal delivery
to the party to be notified, (b) on the fifth business day after deposit
with the United States Post Office, by registered or certified mail,
postage prepaid, (c) on the next business day after dispatch via nationally
recognized overnight courier or (d) upon confirmation of transmission by
facsimile, all addressed to the party to be notified. Notices shall be
addressed as follows: (i) if to Unit Holders, at the address or fax number
set forth below, or at such other address or fax number as Unit Holders
furnished to the Trust in writing or (ii) if to any assignee or transferee
of Unit Holders, at such address or fax number as such assignee or
transferee furnished to the Trust in writing, or (iii) if to the Trust, at
the address of its principal executive offices and addressed to the
attention of the President, or at such other address or fax number as the
Trust furnished to Unit Holders or any assignee or transferee. Any notice
or other communication required to be given hereunder to a Holder in
connection with a registration may instead be given to the designated
representative of such Holder. The address of the Unit Holders is as
follows:
If to the Mort Trust: Morton J. Harris, as Trustee
of the Mort Trust
211 Waukegan Road
Suite 300
Northfield, Illinois 60093
Fax: (847) 441-7696
Phone: (847) 441-7676
If to the Morris Trust: Morris Weiser, as Trustee
of the Morris Trust
Weiser Investment Management
120 South LaSalle Street
Suite 1340
Chicago, Illinois 60603
Fax:
Phone: (312) 372-1535
(e) COUNTERPARTS. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument. To
facilitate execution of this Agreement, the parties may execute and
exchange by telephone facsimile counterparts of the signature pages.
(f) SEVERABILITY. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provision
shall be excluded from this Agreement and the balance of this Agreement
shall be interpreted as if such provision were so excluded and shall be
enforceable in accordance with its terms.
(g) TITLES AND SUBTITLES. The title and subtitles used
in this Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement.
(h) SUCCESSORS AND ASSIGNS. Except as otherwise
provided herein, the terms and conditions of this Agreement shall inure to
the benefit of and be binding on the respective successors and assigns of
the parties hereto.
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(i) REMEDIES. The Trust and Unit Holders 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 the Trust and
each Holder, 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 another 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.
(j) ATTORNEYS' FEES. If the Trust or any Holder brings
an action to enforce its rights under this Agreement, the prevailing party
in the action shall be entitled to recover its costs and expenses,
including, without limitation, reasonable attorneys' fees, incurred in
connection with such action, including any appeal of such action.
(k) LIMITATION OF LIABILITY OF SHAREHOLDERS, TRUSTEES
AND OFFICERS OF THE TRUST. ANY OBLIGATION OR LIABILITY WHATSOEVER OF THE
TRUST WHICH MAY ARISE AT ANY TIME UNDER THIS AGREEMENT OR ANY OBLIGATION OR
LIABILITY WHICH MAY BE INCURRED BY IT PURSUANT TO ANY OTHER INSTRUMENT,
TRANSACTION OR UNDERTAKING CONTEMPLATED HEREBY SHALL BE SATISFIED OUT OF
THE TRUST'S ASSETS ONLY. NO SUCH OBLIGATION OR LIABILITY SHALL BE
PERSONALLY BINDING ON, NOR SHALL RESORT FOR THE ENFORCEMENT THEREOF BE HAD
TO, THE PROPERTY OF ANY OF ITS SHAREHOLDERS, TRUSTEES, OFFICERS, EMPLOYEES
OR AGENTS (SOLELY AS A RESULT OF THEIR STATUS AS SHAREHOLDERS, TRUSTEES,
OFFICERS, EMPLOYEES OR AGENTS), REGARDLESS OF WHETHER SUCH OBLIGATION OR
LIABILITY IS IN THE NATURE OF CONTRACT, TORT OR OTHERWISE. NOTWITHSTANDING
THE FOREGOING, THIS SECTION 7(K) SHALL NOT IN ANY WAY AFFECT OR LIMIT ANY
OBLIGATION OR LIABILITY OF ANY HOLDER UNDER THIS AGREEMENT.
* * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
AMLI RESIDENTIAL PROPERTIES TRUST
By: /s/ Charlotte Sparrow
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Name: Charlotte Sparrow
Title: Vice President
AMLI RESIDENTIAL PROPERTIES, L.P.
By: AMLI Residential Properties
Trust, its general partner
By: /s/ Charlotte Sparrow
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Name: Charlotte Sparrow
Title: Vice President
UNIT HOLDERS:
MORTON J. HARRIS,
as Trustee of the Mort Trust,
under agreement dated August 10, 1999
/s/ Morton J. Harris
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MORRIS WEISER,
as Trustee of the Morris Trust,
under agreement dated May 16, 1996
/s/ Morris Weiser
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