EXHIBIT 4.4
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REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into on June 30, 1999 by and among AMLI Residential Properties
Trust, a Maryland real estate investment trust (the "Company"), AMLI
Residential Properties, L.P., a Delaware limited partnership (the
"Operating Partnership"), and the parties set forth in EXHIBIT A attached
hereto (the "Investors").
WHEREAS, the Company, the Operating Partnership and certain persons
identified on Schedule A thereto (the "Contributors"), have entered into a
Contribution and Exchange Agreement, dated as of November 7, 1997 (the
"Contribution Agreement");
WHEREAS, pursuant to the Contribution Agreement, the Company has
agreed to issue shares of beneficial interest of the Company, $.01 par
value per share (the "Company Shares"), to the Investors, as designees of
the Contributors, and the Operating Partnership has agreed to issue units
of limited partnership interest in the Operating Partnership (the "Units")
to the Investors; and
WHEREAS, in order to permit each Investor to freely offer and sell
the Company Shares that it receives pursuant to the Contribution Agreement
and the Company Shares that it may be issued upon exchange of Units for
Company Shares (all such Company Shares being hereinafter referred to as
"Registrable Shares"), the Company has agreed to provide the Investors with
the registration rights provided herein.
NOW, THEREFORE, the parties hereto, in consideration of the
foregoing, the mutual covenants and agreements hereinafter set forth, and
other good and valuable consideration, the receipt and sufficiency of which
hereby are acknowledged, hereby agree as follows:
ARTICLE 1. REGISTRATION RIGHTS.
The Investors shall be entitled to registration of the Registrable
Shares under the Securities Act of 1933, as amended (the "Securities Act"),
upon and subject to the terms and conditions set forth herein.
Section 1.1 FORM S-3 REGISTRATION. (a) Within the time periods
specified in Section 1.1(b), the Company shall file with the Securities and
Exchange Commission (the "SEC") a shelf registration statement
("Registration Statement") and related prospectus ("Prospectus") that
complies in all material respects with applicable SEC rules providing for
registration under the Securities Act of the offer and sale by the
Investors of the total number of Registrable Shares (i) that have been
issued to the Investors pursuant to the Contribution Agreement and (ii)
that the Investors would own if they were to exchange all Units issued to
them. The Company shall (subject to Section 1.6 hereof) use its reasonable
best efforts to cause the Registration Statement to be declared effective
by the SEC as soon as practicable after filing. The Company agrees to use
its reasonable efforts to keep the Registration Statement with respect to
the Registrable Shares filed pursuant to this SECTION 1.1 continuously
effective for a period expiring on the earlier of (i) the date on which all
of the Registrable Shares covered by the Registration Statement have been
sold pursuant thereto and (ii) the date on which (A) all Registrable Shares
(and all Company Shares that such Investors have the right to obtain in
exchange for Units) held by Investors who are not affiliates of the
Company, in the opinion of counsel for the Company, which counsel shall be
reasonably acceptable to such Investors, are eligible for sale pursuant to
Rule 144(k) under the Securities Act and (B) all Registrable Shares held by
each Investor who is an affiliate of the Company, in the opinion of counsel
for the Company, which counsel shall be reasonably acceptable to such
Investor, are eligible for sale pursuant to Rule 144 under the Securities
Act and could be sold within a period of three months in accordance with
the volume limitations contained in Rule 144(e)(l)(i) under the Securities
Act.
As used herein, the term "Business Day" shall mean any day other than
a Saturday, Sunday or other day on which commercial banks in Chicago,
Illinois are authorized or required by law to close.
(b) A Registration Statement registering Registrable Shares Investors
would own if they were to convert all Units issued to them pursuant to the
Contribution Agreement shall be filed by the Company within six (6) months
of the date hereof. If any Company Shares are issued pursuant to the
Contribution Agreement, a Registration Statement registering such Company
Shares shall be filed within thirty (30) days of the date hereof.
Section 1.2. REGISTRATION RIGHTS IF FORM S-3 IS NOT AVAILABLE.
If Form S-3 (or similar form) is not available (or does not continue to be
available) to the Company for registration of the Registrable Shares, then
the Investors shall have the following rights:
(a) DEMAND RIGHT. Upon the written request (each hereinafter
referred to as a "Demand Registration Notice") of one or more Investors
holding no less than 20,000 (A) Units or (B) Registrable Shares, the
Company shall file a Registration Statement on an appropriate form under
the Securities Act for all of the Registrable Shares requested to be
registered. The Company shall (subject to Section 1.6 hereof) file any
Registration Statement required by this paragraph with the SEC within
thirty (30) days of receipt of the requisite Investor request and shall use
its reasonable efforts to cause such Registration Statement to be declared
effective by the SEC as soon as practicable thereafter. The Company shall
(subject to Section 1.6 hereof) use its reasonable efforts to keep such
Registration Statement effective until the date that is nine (9) months
after the date of effectiveness of the Registration Statement (plus the
number of days, if any, during which Investors were not permitted to make
offers or sales under the Registration Statement by reason of Section 1.6).
An Investor shall be entitled to make or join in a demand pursuant to this
Section 1.2(a) one (1) time, provided that if no Registration Statement is
declared effective with respect to a demand which an Investor has made or
joined in that demand shall not be counted for purposes of this limit.
(b) PIGGYBACK RIGHTS. If the Company at any time proposes to file
a Registration Statement (other than in connection with an exchange offer
or a Registration Statement on Form S-4 or S-8 or any successor form to
such forms or other form of Registration Statement that would not permit
registration of the Registrable Shares for sale to the public) under the
Securities Act with respect to any of its Company Shares or any security
convertible into or exchangeable or exercisable for Company Shares, whether
or not for sale for its own account, on a form and in a manner which would
permit the registration of Registrable Shares for sale to the public under
the Securities Act, the Company shall give written notice of the proposed
registration to the holders of Registrable Shares not later than the
earlier to occur of (i) the fifth day following receipt by the Company of
notice of exercise of any demand registration rights or (ii) thirty (30)
days prior to the filing thereof. The holders of Registrable Shares shall
have the right to request that all or any part of the Registrable Shares be
included in the registration by giving written notice (a "Piggyback
Registration Notice") to the Company within fifteen (15) days after the
giving of the notice by the Company; PROVIDED, HOWEVER, that (A) if the
registration relates to an underwritten primary offering on behalf of the
Company and the managing underwriters of the offering determine in good
faith that the aggregate amount of securities of the Company which those
holders and the Company propose to include in the Registration Statement
exceeds the maximum amount of securities that could practicably be included
therein, the Company will include in the registration, first, the
securities which the Company proposes to sell, second, pro rata, any
securities of any existing holders of other piggyback registration rights
and the Registrable Shares of the Investors, and third, the securities of
any subsequent holders of other piggyback registration rights, and (B) if
the registration is an underwritten secondary registration on behalf of any
of the other security holders of the Company and the managing underwriters
determine in good faith that the aggregate amount of securities which the
holders of Registrable Shares and such security holders propose to include
in the registration exceeds the maximum amount of securities that could
practicably be included therein, the Company will include in the
registration, first, the securities to be sold for the account of any other
holders entitled to demand registration, second, the Registrable Shares of
the Investors and third, other securities to be sold for the account of
other holders electing to include (but not being entitled to demand
inclusion of) securities in the registration. (It is understood, however,
that the underwriters shall have the right to terminate entirely the
participation therein of the holders of Registrable Shares if the
underwriters eliminate entirely the participation in the registration of
all the other holders electing to include (but not be entitled to demand
inclusion of) securities in the registration). If the registration is not
an underwritten registration, then all of the Registrable Shares requested
to be included in the registration shall be included. Registrable Shares
proposed to be registered and sold pursuant to an underwritten offering for
the account of the holders of Registrable Shares shall be sold to
prospective underwriters selected or approved by the Company and on the
terms and subject to the conditions of one or more underwriting agreements
negotiated between the Company, the holders of Registrable Shares and any
other holders demanding registration and the prospective underwriters. The
Company may withdraw any Registration Statement at any time before it
becomes effective, or postpone the offering of securities, without
obligation or liability to the holders of Registrable Shares. Registrable
Shares need not be included in any Registration Statement pursuant to this
provision if in the opinion of counsel to the Company reasonably acceptable
to the holders of Registrable Shares registration under the Securities Act
is not required for public distribution of the Registrable Shares.
(b) Upon receipt by the Company of a Demand Registration
Notice or Piggyback Registration Notice, the Company may, but shall not be
obligated to, purchase from such Investor all, but not less than all, of
the Company Shares which are the subject of the Demand Registration Notice
or Piggyback Registration Notice at a price per share equal to the average
of the Closing Prices (defined below) of the Company Shares for the five
trading days immediately preceding the date of the Demand Registration
Notice or Piggyback Registration Notice. In the event the Company elects
to purchase the Company Shares which are the subject of a Demand
Registration Notice or Piggyback Registration Notice, the Company shall
notify the Investor holding such Company Shares within five business days
of the date of receipt of the Demand Registration Notice or Piggyback
Registration Notice by the Company, which notice shall indicate: (i) that
the Company will purchase the Company Shares which are the subject of the
Demand Registration Notice or Piggyback Registration Notice, (ii) the price
per Company Share, calculated in accordance with the preceding sentence,
which the Company will pay to such Investor and (iii) the date upon which
the Company shall repurchase such Company Shares, which date shall not be
later than the tenth Business Day after receipt of the Demand Registration
Notice or Piggyback Registration Notice relating to such Company Shares.
(c) If the Company elects to purchase the Company Shares
which are the subject of such Demand Registration Notice or Piggyback
Registration Notice in accordance with this Section 1.2(b), the Company
shall be relieved of its obligations under this Agreement with respect to
such Company Shares. "Closing Price" of the Common Shares for any given
day shall mean (i) if the Company Shares are listed or admitted to trading
on a national securities exchange, the reported last sale price of the
Company Shares regular way on such day or, in case no such sale takes place
on such day, the average of the reported closing bid and asked prices
regular way, on such national securities exchange on such day or (ii) if
the Company Shares are not listed or admitted to trading on any national
securities exchange but are traded in the over-the-counter market, the
average of the closing bid and asked prices in the over-the-counter market
on such day.
Section 1.3 ADDITIONAL REGISTRATION PROCEDURES.
(a) The Company will provide to Investors a reasonable number
of copies of any final Prospectus and any amendments or supplements
thereto.
(b) The Company will use its reasonable efforts to register
or qualify the Registrable Shares under such other securities or blue sky
laws of such jurisdictions as any Investor reasonably requests and do any
and all other acts and things which may be reasonably necessary or
advisable in connection with the issuance to (if such shares are registered
for issuance) or the disposition of (if such shares are registered for
resale) the Registrable Shares owned by that Investor; PROVIDED that the
Company will not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for
this subparagraph, (ii) subject itself to taxation in any such
jurisdiction, (iii) consent to general service of process in any such
jurisdiction, or (iv) qualify Registrable Shares in a given jurisdiction
where qualifications would require the Company to register as a broker or
dealer in that jurisdiction.
(c) The Company will use its best efforts to cause all
Registrable Shares to be listed on each securities exchange on which
similar securities issued by the Company are listed and to be qualified for
trading on each system on which similar securities issued by the Company
are from time to time qualified.
(d) The Company shall also file a sufficient number of copies
of the prospectus and any post-effective amendment or supplement thereto
with the New York Stock Exchange (or, if the Company Shares are no longer
listed in the New York Stock Exchange, with such other securities exchange
or market on which the Company Shares are then listed) so as to enable the
Investors to the benefits of the prospectus delivery provisions of Rule 153
under the Securities Act.
Section 1.4. COOPERATION. Each Investor agrees to (a) provide in a
timely manner information regarding the proposed distribution by that
Investor of the Registrable Shares and all other information reasonably
requested by the Company in connection with preparation of and for
inclusion in the Registration Statement and (b) to deliver or cause to be
delivered the prospectus contained in the Registration Statement and any
filing with any state securities commission as the Company may reasonably
request. Any Investor who does not provide the information reasonably
requested by the Company in connection with the Registration Statement as
promptly as practicable after receipt of such request, but in no event
later than ten (10) days thereafter, shall not be entitled to have its
Company Shares included in the Registration Statement.
Section 1.5 ADDITIONAL SHARES. The parties agree that any
Registration Statement may register any number of shares that are not
Registrable Shares but are Company Shares held by others, or any number of
unissued shares owned by any other shareholder or shareholders of the
Company.
Section 1.6 SUSPENSION OF OFFERING. Notwithstanding the foregoing
provisions of this Agreement, the Company shall not be required to file a
Registration Statement or to keep the Registration Statement effective if
the following unforeseen circumstance exists: (i) an underwritten primary
offering by the Company has been commenced and the Company is advised by
the underwriters that the sale of Registrable Shares under the Registration
Statement would have a material adverse affect on the primary offering, or
(ii) if the negotiation or consummation of a transaction by the Company or
its subsidiaries is pending or an event has occurred, which negotiation,
consummation or event would require additional disclosure by the Company in
the Registration Statement of material information which the Company has a
BONA FIDE business purpose for keeping confidential and the nondisclosure
of which in the Registration Statement might cause the Registration
Statement to fail to comply with applicable disclosure requirements;
PROVIDED, HOWEVER, that the Company may not delay, suspend or withdraw the
Registration Statement for such reasons more than twice in any twelve (12)-
month period or for more than ninety (90) days at any one time. Upon
receipt of any notice from the Company of the happening of any event during
the period the Registration Statement is effective which is of a type
specified in the preceding sentence or as a result of which the
Registration Statement or related Prospectus contains any untrue statement
of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made (in the case of the Prospectus)
not misleading, Investors agree that they will immediately discontinue
offers and sales of the Registrable Shares under the Registration Statement
until Investors receive copies of a supplemented or amended Prospectus that
corrects the misstatement(s) or omission(s) referred to above and receive
notice that any post-effective amendment has become effective. If so
directed by the Company, Investors will deliver to the Company any copies
of the Prospectus covering the Registrable Shares in their possession at
the time of receipt of such notice.
Section 1.7 EXPENSES. The Company shall pay all expenses incident
to the performance by it of its obligations under this Agreement, including
(i) all SEC or stock exchange registration, listing and filing fees, (ii)
all expenses incurred in connection with the preparation, printing and
distributing of any Registration Statement and Prospectus, and (iii) fees
and disbursements of counsel for the Company and of the independent public
accountants of the Company. Investors shall be responsible for the payment
of any and all other expenses incurred by them in connection with the
exchange of their Units and sale of their Registrable Shares, including,
without limitation, underwriting, brokerage and sales commissions, and fees
and disbursements of Investors' counsel, and any transfer taxes relating to
the sale or disposition of the Registrable Shares by Investors.
ARTICLE 2. INDEMNIFICATION; CONTRIBUTION
Section 2.1 INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify and hold harmless each Investor and each person, if any, who
controls any Investor within the meaning of Section 15 of the Securities
Act as follows:
(a) 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 the Registration
Statement (or any amendment thereto) pursuant to which the Registrable
Shares were registered under the Securities Act, including all documents
incorporated therein by reference, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
Prospectus (or any amendment or supplement thereto), 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;
(b) 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
government agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omissions, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company, which shall not be unreasonably
withheld; and
(c) 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 (a) or (b) above;
PROVIDED, HOWEVER, that the indemnity provided pursuant to this Section 2.1
does not apply to any Investor with respect to any loss, liability, claim,
damage or expense to the extent arising out of (x) any untrue statement or
alleged untrue statement or omission or alleged omission made in reliance
upon and in conformity with written information furnished to the Company by
that Investor expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement
thereto) or (y) that Investor's failure to deliver a final, amended or
supplemental Prospectus provided by the Company if such loss, liability,
claim, damage or expense would not have arisen had such delivery occurred.
Section 2.2 INDEMNIFICATION BY INVESTORS. Each Investor agrees to
indemnify and hold harmless the Company, and each of its directors
(including each director and 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, to the same extent
as the indemnity contained in Section 2.1 hereof (except that any
settlement described in Section 2.1(b) shall be effected with the written
consent of the Investor, which consent shall not be unreasonably withheld),
but only insofar as such loss, liability, claim, damage or expense arises
out of or is based upon (x) any untrue statement or omission, or alleged
untrue statement or omission, made in the 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 by that Investor expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto) or (y) that Investor's failure to deliver
an amended or supplemental Prospectus provided by the Company if the loss,
liability, claim, damage or expense would not have arisen had such delivery
occurred.
Section 2.3 CONDUCT OF INDEMNIFICATION PROCEEDINGS. The indemnified
party shall give reasonably prompt notice to the indemnifying party of any
action or proceeding commenced against it in respect of which indemnity may
be sought hereunder, but failure to so notify the indemnifying party (i)
shall not relieve it from any liability which it may have under the
indemnity agreement provided in Section 2.1 or 2.2 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 indemnifying party
of any substantial rights and defenses and (ii) shall not, in any event,
relieve the indemnifying party from any obligations to the indemnified
party other than the indemnification obligation provided under Section 2.1
or 2.2 above. If the indemnifying party so elects within a reasonable time
after receipt of notice, the indemnifying party's own expense with counsel
chosen by the indemnifying party and approved by the indemnified party
reasonably determines upon advice of counsel that a conflict of interest
exists where it is advisable for the indemnified party to be represented by
separate counsel or that, upon advice of counsel, there may be legal
defenses available to it 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 shall be
entitled to separate counsel at the indemnifying party's expense, provided,
however, it is understood that the indemnifying party shall not be liable
for the fees, charges and disbursements of more than one separate firm. If
the indemnifying party is not entitled to assume the defense of the action
or proceeding as a result of the proviso to the preceding sentence, the
indemnifying party's counsel shall be entitled to conduct the indemnifying
party's defense and counsel for the indemnified party shall be entitled to
conduct the defense of the indemnified party, it being understood that both
such counsel will cooperate with each other to conduct the defense of the
action or proceeding as efficiently as possible. If the indemnifying party
is not so entitled to assume the defense of the action or does not assume
the defense, after having received the notice referred to in the first
sentence of this paragraph, the indemnifying party will pay the reasonable
fees and expenses of counsel for the indemnified party. In that event,
however, the indemnifying party will not be liable for any settlement
effected without the written consent of the indemnifying party. If an
indemnifying party is entitled to assume, and assumes the defense of an
action or proceeding in accordance with this paragraph, the indemnifying
party shall not be liable for any fees and expenses of counsel for the
indemnified party incurred thereafter in connection with that action or
proceeding.
Section 2.4 CONTRIBUTION. To provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for
in this Article 2 is for any reason held to be unenforceable although
applicable in accordance with its terms or if the indemnification provided
for in Sections 2.1 and 2.2 is otherwise unavailable to an indemnified
party with respect to the indemnity contained in Sections 2.1 or 2.2 or is
insufficient to hold the indemnified party harmless as contemplated
therein, then, the Company and each Investor shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by the indemnity agreement incurred by the Company and each
Investor, in such proportion as is appropriate to reflect the relative
fault of the Company on the one hand and of the investor on the other, 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 party 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, the
indemnifying party or the indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent the action.
The parties hereto agree that it would not be just or equitable if
contribution pursuant to this Section 2.4 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 Article 2, no Investor
shall be required to pay or to contribute any amount in excess of the
lesser of (i) the amount by which the total price at which the Registrable
Shares of that Investor were sold to the public or (ii) the amount of any
damages which the Investor would otherwise have been required to pay by way
of indemnification if the indemnification provided for under Section 2.2
had been available.
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 2.4
each person, if any, who controls an Investor within the meaning of Section
15 of the Securities Act shall have the same rights to contribution as that
Investor, 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 the Company.
ARTICLE 3. LOCK-UP AGREEMENT
Section 3.1 (a) Each of the Investors hereby agrees that, except as
set forth in clause (b) below, from and after the date hereof until the
date which is ninety (90) days (or, three hundred six-five (365) days, in
the case of Investors who have been issued Units pursuant to the
Contribution Agreement) from the date hereof (each such period being
referred to hereinafter as, a "Lock-up Period"), without prior written
consent of the Company, it will not offer, pledge, sell, contract to sell,
grant options for the sale or otherwise dispose of, directly or indirectly,
(hereinafter "Dispose of") any Company Shares (or, in the case of Investors
who have been issued Units pursuant to the Contribution Agreement, any
Units), in each case, which have been issued to such Investor pursuant to
the Contribution Agreement.
(b) The following transfer of Company Shares or Units shall
not be subject to the lock-up set forth in clause (a) above:
(i) an Investor who is a natural person may Dispose of
Company Shares or Units to his or her spouse, siblings, parents or any
natural or adopted children or other descendants or to any personal trust
in which such family members or such Investor retain the entire beneficial
interest;
(ii) an Investor who is a natural person may Dispose of
Company Shares or Units on his or her death to such Investor's estate,
executor, administrator or personal representative or to such Investor's
beneficiaries pursuant to a devise or bequest or by the laws of descent and
distribution;
(iii) an Investor that is a corporation, partnership or
other business entity may (A) Dispose of Company Shares or Units to one or
more other entities that are wholly owned and controlled, legally and
beneficially, directly or indirectly by such Investor or (B) Dispose of
Company Shares or Units by distributing such Company shares or Units in a
liquidation, winding up or otherwise without consideration to the equity
owners of such corporation, partnership or business entity or to any other
corporation, partnership or business entity that is wholly owned by such
equity owners;
(iv) an Investor may Dispose of Company Shares or Units
pursuant to a pledge, grant or security interest or other encumbrance
effected in a bona fide transaction with an unrelated and unaffiliated
pledgee;
PROVIDED, HOWEVER, that in the case of any transfer of Units pursuant to
clauses (i), (ii) and (iii), the transferee or transferees shall be an
"accredited investor" within the meaning of Rule 501(a) of Regulation D
under the Securities Act.
In the event any Investor Disposes of Company Shares or Units
described in this Clause (b), such Company Shares or Units shall remain
subject to this Agreement and, as a condition of the validity of such
disposition, the transferee (and any pledgee who acquires Company Shares or
Units upon foreclosure or any transferee thereof) shall be required to
execute and deliver a counterpart of this Agreement. Thereafter, such
transferee shall be deemed to be an Investor for purposes of this
Agreement.
ARTICLE 4. MISCELLANEOUS
Section 4.1 NO OTHER OBLIGATION TO REGISTER. Except as otherwise
expressly provided in this Agreement, the Company shall have no obligation
to Investors to register the Registrable Shares under the Securities Act.
Section 4.2 AMENDMENT AND WAIVERS. The provisions of this Agreement
may not be amended, modified, supplemented or waived without the written
consent of the company and Investors holding at least two-thirds (2/3) of
the then outstanding unregistered Registrable Shares and/or Units.
Section 4.3 NOTICES. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand delivery,
registered first-class mail (return receipt requested), telex, telecopier,
or any courier guaranteeing overnight delivery, to each Investor at the
address indicated on the applicable Investor signature page and to the
Operating Partnership and the Company at the address indicated below:
If to the Company or the Operating Partnership:
AMLI Residential Properties Trust
125 South Wacker Drive, Suite 3100
Chicago, IL 60606
Attention: Allan J. Sweet
Fax: (312) 443-0909
with a copy to:
Mayer, Brown & Platt
190 South La Salle Street
Chicago, IL 60603-3441
Attention: John W. Noell
Fax: (312) 701-7711
All notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three (3)
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.
Section 4.4 ASSIGNMENT; SUCCESSORS AND ASSIGNS. This Agreement and
the rights granted hereunder may not be assigned by any Investor without
the written consent of the Company; PROVIDED, HOWEVER, that the rights
granted hereunder may be assigned by any Investor in connection with a
transfer of Registrable Shares or Units (i) to any affiliate of such
Investor, (ii) to any stockholder, partner, member or other owner of such
Investor, (iii) to any other Investor and (iv) to any other person to which
Units may be transferred without the consent of the general partner
pursuant to the Limited Partnership Agreement of the Operating Partnership
and provided further that any such transferee assumes the obligations
under, and become a party to, this Agreement as an "Investor". Any
permitted assignee of an Investor that assumes the obligations hereunder
and becomes a party to this Agreement shall be entitled to all of the
benefits of this Agreement.
Section 4.5 GOVERNING LAW. The laws of the State of Maryland shall
govern all questions concerning the relative rights of the Company and its
shareholders and questions concerning the construction, validity and
interpretation of this Agreement, without giving effect to any choice of
law or conflict of law provision or rule (whether of the State of Maryland
or any other jurisdiction) that would cause the application of the laws of
any jurisdiction other than the State of Maryland.
Section 4.6 SPECIFIC PERFORMANCE. The parties 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.
Section 4.7 SEVERABILITY. If any provisions of this Agreement is
held to be illegal, invalid or unenforceable under any current or future
law, and if the rights or obligations of the parties under this Agreement
would not be materially and adversely affected thereby, such provision
shall be fully separable, and this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part thereof, the remaining provisions of this Agreement shall
remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance therefor. In lieu
of such illegal, invalid or unenforceable provision, there shall be added
automatically as a part of this Agreement, a legal, valid and enforceable
provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible, and the parties hereto request the court or
any arbitrator to who disputes relating to this Agreement are submitted to
reform the otherwise illegal, invalid or unenforceable provision in
accordance with this Section 4.6.
Section 4.8 DESCRIPTIVE HEADINGS. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of
this Agreement.
Section 4.9 ENTIRE AGREEMENT. This Agreement is intended by the
parties as a final express of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein. This Agreement
supersedes all prior agreement and understandings between the parties with
respect to such subject matter.
Section 4.10. COUNTERPARTS. This Agreement may be executed
simultaneously in two or more counterparts, any one of which need not
contain the signature of more than one party, but all such counterparts
taken together will constitute one and the same Agreement.
Section 4.11 LIMITATION OF LIABILITY OF SHAREHOLDERS AND OFFICERS OF
THE COMPANY. ANY OBLIGATION OR LIABILITY WHATSOEVER OF THE COMPANY 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, IF AT ALL, OUT OF
THE COMPANY'S ASSETS ONLY. NO SUCH OBLIGATION OR LIABILITY SHALL BE
PERSONALLY BINDING UPON, NOR SHALL RESORT FOR THE ENFORCEMENT THEREOF BE
HAD TO, THE PROPERTY OF ANY OF ITS SHAREHOLDERS (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
4.11 SHALL NOT IN ANY WAY AFFECT OR LIMIT ANY OBLIGATION OR LIABILITY OF
ANY INVESTOR UNDER THIS AGREEMENT.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed on its behalf as of the date first written
above.
AMLI RESIDENTIAL PROPERTIES TRUST
By: /s/ CHARLOTTE A. SPARROW
------------------------------------
Name: Charlotte A. Sparrow
Title: Vice President
AMLI RESIDENTIAL PROPERTIES, L.P.
By: AMLI Residential Properties Trust
Its: General Partner
By: /s/ CHARLOTTE A. SPARROW
------------------------------
Name: Charlotte A. Sparrow
Title: Vice President
CFP RESIDENTIAL, L.P.
By: Crow Family, Inc.,
its General Partner
By: /s/ SARAH PUCKETT
------------------------------
Sarah Puckett
Vice President
/s/ BRIAN K. CRANOR
------------------------------------------
BRIAN K. CRANOR
/s/ TRAMMELL S. CROW
------------------------------------------
TRAMMELL S. CROW
/s/ DAVID J. ELWELL
------------------------------------------
DAVID J. ELWELL
/s/ DAVID J. HUBBARD
------------------------------------------
DAVID J. HUBBARD
LEONARD W. WOOD FAMILY LIMITED
PARTNERSHIP
By: Leonard W. Wood,
its General Partner
By: /s/ LEONARD W. WOOD
------------------------------
Leonard W. Wood
/s/ RANDY J. PACE
------------------------------------
RANDY J. PACE
/s/ J. RONALD TERWILLIGER
------------------------------------
J. RONALD TERWILLIGER
/s/ JAMES E. THOMAS, JR.
------------------------------------
JAMES E. THOMAS, JR.
/s/ LEONARD W. WOOD
------------------------------------
LEONARD W. WOOD
EXHIBIT A
INVESTORS
---------
NUMBER OF REGISTRABLE
INVESTOR SHARES BASED ON UNITS
- -------- ---------------------
CFP Residential, L.P. 11,158
Brian K. Cranor 2,784
Trammell S. Crow 8
David J. Elwell 556
David J. Hubbard 11,783
Leonard W. Wood Family Limited Partnership 10,894
Randy J. Pace 1,667
J. Ronald Terwilliger 11,167
James E. Thomas, Jr. 5,267
Leonard W. Wood 272