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EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is executed as of
September 23, 1997 by Bay Apartment Communities, Inc., a Maryland corporation
(the "Company") and the persons listed on APPENDIX A. Unless otherwise defined,
all capitalized terms used herein shall have the meanings ascribed to such terms
in the Agreement of Limited Partnership of Bay Pacific Northwest, L.P. (the
"Limited Partnership Agreement"), dated September 23, 1997, by and between the
initial Holders and the Company, as general partner.
WHEREAS, the Holders are to receive or own the units of limited
partnership interests in Bay Pacific Northwest, L.P., a Delaware limited
partnership (the "Partnership") issued pursuant to that certain Agreement to
Acquire Limited Partnership Interests and Contribution Agreement between the
Company, TCR #510 Kelley Partnership, a Texas limited partnership, and TCR
Gallery Place Holdings Limited Partnership, a Texas limited partnership, dated
July 30, 1997 (the "Units") which may be tendered for redemption for cash or, at
the Company's election, shares of the Company's common stock, $.01 par value
("Common Stock"), that may be issued without registration under the Securities
Act of 1933 (the "Securities Act") pursuant to and in accordance with the terms
of the Limited Partnership Agreement; and
WHEREAS, it is a condition to the obligations of the Holders to
consummate the transactions pursuant to which they will receive Units that the
Company enter into this Agreement with the Holders.
NOW, THEREFORE, in consideration of the mutual promises and agreements
set forth herein and in the Limited Partnership Agreement, and for other
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and each Holder hereby agree as follows:
1. REGISTRATION.
(a) REGISTRATION STATEMENT COVERING ISSUANCE OF COMMON STOCK.
Subject to the provisions of Section 1(b) below, the Company will file with the
Securities and Exchange Commission (the "SEC") a registration statement on Form
S-3 (the "Issuance Registration Statement") under Rule 415 under the Securities
Act, relating to the issuance to Holders of shares of Common Stock in exchange
for such Units, such filing to be made on that date (the "Filing Date") which is
the later of (i) a date which is thirty (30) days prior to the first date on
which the Units issued pursuant to the Limited Partnership Agreement held by the
Holders may be exchanged for shares of Common Stock and (ii) such other date as
may be required by the SEC pursuant to its interpretation of applicable federal
securities laws and the rules and regulations promulgated thereunder, including,
without limitation, any of the so-called "roll-up" laws, rules or regulations.
Thereupon the Company shall use its reasonable efforts to
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cause the Issuance Registration Statement to be declared effective by the SEC
for all shares of Common Stock covered thereby as soon as practicable
thereafter. In the event that the Company is unable to cause such Issuance
Registration Statement to be declared effective by the SEC, then the rights of
the Holders set forth in Sections 1(b) and 1(c) below shall apply to Common
Stock received by such Holder upon the redemption of Units. Notwithstanding the
availability of rights under Section 1(b) or 1(c), the Company shall continue to
use its reasonable efforts to cause the Issuance Registration Statement to be
declared effective by the SEC until such time as Holders request that the
Company file a Shelf Registration Statement in accordance with Section 1(b). The
Company agrees to use its reasonable efforts to keep the Issuance Registration
Statement continuously effective until the date on which each Holder has
tendered such Holder's Units for redemption and the redemption price therefor
(whether paid in cash or in Common Stock) has been delivered to the Holder.
(b) SHELF REGISTRATION. In the event that, for any reason, the
Company is unable to file an Issuance Registration Statement pursuant to Section
1(a) above on or before the 380th day after the date of issuance by the
Partnership of the Units, or is unable to cause an Issuance Registration
Statement to be declared effective by the SEC on or before the date which is
sixty (60) days after the date the Issuance Registration Statement is filed with
the SEC pursuant to Section 1(a) above, the Company shall, upon the request of
Holders who own fifty percent (50%) or more of the Registrable Shares and Units
then outstanding, file a registration statement (a "Shelf Registration
Statement") under Rule 415 under the Securities Act relating to the sale by such
Holders of their Registrable Shares in accordance with the terms hereof on or
before the 390th day after the date of issuance by the Partnership of the Units
or within 20 days after the Company receives the request from the Holders, if
later (in the event that the Company is unable to file the Issuance Registration
Statement) or on or before the date which is sixty-five (65) days following the
date the Issuance Registration Statement is filed with the SEC or within 20 days
after the Company receives the request from the Holders, if later (in the event
that the Issuance Registration Statement has not been declared effective by the
SEC). As used in this Agreement, the term "Registrable Shares" means shares of
Common Stock issued or issuable to the Holders in exchange for their Units
pursuant to the terms of the Limited Partnership Agreement, excluding (A) Common
Stock for which a Registration Statement relating to the sale thereof shall have
become effective under the Securities Act and which have been disposed of under
such Registration Statement or (B) Common Stock which is sold by the Holder
pursuant to Rule 144 under the Securities Act or any successor rule or
regulation. The Company shall use reasonable efforts to cause such Shelf
Registration Statement to be declared effective by the SEC as soon as
practicable after it has been filed with the SEC for the total number of
Registrable Shares that the Company could be requested to register if all of the
Units were exchanged for the Company's Common Stock. The Company agrees to use
reasonable efforts to keep the Shelf Registration Statement continuously
effective until the date (the "Shelf Registration Expiration Date") which is the
earliest of (a) one (1) year following the date on which all Units have been
exchanged or redeemed pursuant to Sections 8.5, 8.6, or 8.7 of Limited
Partnership Agreement, (b) the date which is the twelfth anniversary of the
first date on which Units are issued by the Partnership, (c) the date on which
all Registrable Shares are disposed of by the Holders or (d) such date on which
it is no longer necessary to keep the
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Shelf Registration Statement effective because all Holders may freely sell their
respective Registrable Shares (including any Common Stock that could be issued
on redemption of Units then held by Holders) without limitation on volume or
manner of sale pursuant to Rule 144(k) promulgated under the Securities Act (or
any successor rule or regulation). After the Company has filed the Shelf
Registration Statement, any obligation of the Company to file an Issuance
Registration Statement pursuant to Section 1(a) above shall be suspended for as
long as the Shelf Registration Statement remains effective. The Company shall
not be required to file and effect more than one Shelf Registration Statement
pursuant to this Section 1(b).
(c) PIGGYBACK REGISTRATION. If at any time after the Shelf
Registration Expiration Date but prior to September __, 2009 any Registrable
Shares are outstanding and the Company proposes (without any obligation to do
so) to file a registration statement under the Securities Act with respect to an
offering of Common Stock solely for cash (other than a registration statement
(i) on Form S-8 or any successor form to such Form or in connection with any
employee or director welfare, benefit or compensation plan, (ii) on Form S-4 or
any successor form to such Form or in connection with an exchange offer, (iii)
in connection with a rights offering exclusively to existing holders of Common
Stock, (iv) in connection with an offering solely to employees of the Company or
its affiliates, (v) relating to a transaction pursuant to Rule 145 of the
Securities Act or (vi) in connection with a dividend reinvestment or direct
stock purchase plan other than to the Company's existing shareholders), whether
or not for its own account (a "Piggyback Registration Statement"), the Company
shall give prompt written notice of such proposed filing to the Holders. The
notice referred to in the preceding sentence shall offer Holders the opportunity
to register such amount of Registrable Shares as the Holders may request (a
"Piggyback Registration"). Any Shelf Registration Statement, any Issuance
Registration Statement or any Piggyback Registration Statement is sometimes
hereinafter referred to as a "Registration Statement." Subject to the
restrictions set forth below and the provisions of Section 3 hereto, the Company
shall include in such Piggyback Registration all Registrable Shares for which
the Company has received a written request for inclusion therein within fifteen
(15) calendar days after the notice referred to above has been given by the
Company to the Holders of Registrable Shares. Holders of Registrable Shares
shall be permitted to withdraw all or part of the Registrable Shares from a
Piggyback Registration at any time prior to the effective date of such Piggyback
Registration. If a Piggyback Registration is an underwritten primary
registration on behalf of the Company and the managing underwriter advises the
Company that the total number of shares of Common Stock requested to be included
in such registration exceeds the number of shares of Common Stock which can be
sold in such offering without adversely affecting the price range or probability
of success of such offering, the Company will include Common Stock in such
registration in the following priority: (i) first, all shares of Common Stock
the Company proposes to sell and (ii) second, up to the full number of
applicable Registrable Shares requested to be included in such registration and
other shares of Common Stock held by shareholders of the Company who have the
right to request, or participate in, such registration which, in the opinion of
such managing underwriter, can be sold without adversely affecting the price
range or probability of success of such offering, which shall be allocated among
the
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Holders and all other stockholders requesting registration on a pro rata basis
in accordance with the total number of shares of Common Stock requested to be
included.
(d) At the request of a Holder, the Company will file an
amendment to any Registration Statement covering Registrable Shares owned by, or
issuable upon redemption of Units held by, such Holder deregistering all or part
of those Registrable Shares (such shares, the "Deregistered Shares"). In the
event that such Registrable Shares were registered pursuant to an Issuance
Registration Statement or a Shelf Registration Statement, the Company shall be
deemed to have satisfied its obligations pursuant to Section 1 (a) or 1 (b), as
the case may be, with respect to such Deregistered Shares.
2. REGISTRATION PROCEDURES.
(a) The Company shall notify each Holder of Registrable Shares
of the effectiveness of the Registration Statement and shall furnish to each
such Holder such number of copies of the Registration Statement (including any
amendments, supplements and exhibits), the prospectus contained therein
(including each preliminary prospectus or prospectus supplement), any documents
incorporated by reference in the Registration Statement and such other documents
as such Holder may reasonably request in order to facilitate its sale of the
Registrable Shares in the manner described in the Registration Statement.
(b) The Company shall prepare and file with the SEC from time
to time such amendments and supplements to the Issuance Registration Statement
or the Shelf Registration Statement and the prospectus used in connection
therewith as may be necessary to keep Issuance Registration Statement or the
Shelf Registration Statement effective and to comply with the provisions of the
Securities Act with respect to the disposition of all the Registrable Shares
until the Shelf Registration Expiration Date. Upon twenty (20) business days'
notice, the Company shall file any supplement or post-effective amendment to the
Shelf Registration Statement with respect to a Holder's interests in or plan of
distribution of Registrable Shares that is reasonably necessary to permit the
sale of the Holder's Registrable Shares pursuant to the Shelf Registration
Statement.
(c) The Company shall promptly notify each Holder of, and
confirm in writing, any request by the SEC for amendments or supplements to a
Registration Statement or the prospectus related thereto or for additional
information. In addition, the Company shall promptly notify each Holder of, and
confirm in writing, the filing of a Registration Statement, any prospectus
supplement related thereto or any amendment to a Registration Statement and the
effectiveness of any post-effective amendment.
(d) The Company shall immediately notify each Holder, at any
time when a prospectus relating to the Registration Statement is required to be
delivered under the Securities Act, of the happening of any event as a result of
which a Registration Statement (including the prospectus therein), as then in
effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
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statements therein, in light of the circumstances under which they were made,
not misleading. In such event and subject to paragraph 9 of this Agreement, the
Company shall promptly prepare, and furnish to each Holder a reasonable number
of copies of, a supplement to or an amendment of such Registration Statement
(including, if applicable, the prospectus contained therein) as may be necessary
so that, as thereafter delivered to the purchasers of Registrable Shares, such
Registration Statement (including, if applicable, the prospectus contained
therein) shall not include 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, in light of the circumstances under which they are made, not
misleading.
3. STATE SECURITIES LAWS. Subject to the conditions set forth in this
Agreement, the Company shall, promptly upon the filing of a Registration
Statement including Registrable Shares, file such documents as may be necessary
to register or qualify the Registrable Shares under the securities laws of the
states (the "Blue Sky Laws") that require such registration or qualification as
any Holder of Registrable Shares may reasonably request, and the Company shall
use reasonable efforts to cause such filings to become, and to continuously
remain, effective as long as the Registration Statement is effective; PROVIDED,
HOWEVER, that the Company shall not be obligated to qualify as a foreign
corporation to do business under the laws of any such state in which it is not
then qualified or to file any general consent to service of process in any such
state. The Company shall promptly notify each Holder of, and confirm in writing,
(i) the effectiveness or any filing under any Blue Sky Laws (with the date
thereof and (ii) the receipt by the Company of any notification with respect to
the suspension of the qualification of the Registrable Shares for sale under the
Blue Sky Laws of any jurisdiction or the initiation or threat of any proceeding
for such purpose or any inquiry concerning the accuracy or completeness of any
filing under any Blue Sky Law or any document or information included in or
accompanying any such filing. In addition, the Company shall notify each Holder
of, and confirm in writing, the filing of any amendment or supplement to any
filing under any Blue Sky Law.
4. EXCHANGE ACT FILINGS. The Company shall from time to time make all
filings required of it under the Securities and Exchange Act of 1934, as amended
(the "Exchange Act"). The Company shall upon request of a Holder, provide to
such Holder a copy of any such filing, whether or not such filing is
incorporated by reference into a Registration Statement.
5. LISTING. The Company will take such action as may be necessary to
cause all Registrable Shares to be listed or otherwise eligible for full trading
privileges on the New York Stock Exchange and on each other securities exchange
or quotation system on which the Common Stock is traded, in each case not later
than the date on which a Registration Statement covering the Registrable Shares
becomes effective or the Registerable Shares are issued by the Company to a
Holder, whichever is later. The Company will use reasonable efforts to continue
the listing or trading privilege for all Registrable Shares on each such
exchange or quotation system. The Company will promptly notify each Holder of
and confirm in writing, the delisting of the Company's Common Stock by any
securities exchange or the suspension of
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or restriction on trading privileges with respect to the Company's Common Stock
through any quotation system.
6. EXPENSES. The Company shall bear all fees, costs and expenses
incurred by the Company in connection with the registration of the Registrable
Shares pursuant to Sections 1(a), 1(b) or 1(c) and Sections 2 and 3 of this
Agreement and the listing of Common Stock as contemplated by Section 5 of this
Agreement. Such expenses shall include, without limitation, all printing, legal
and accounting expenses incurred by the Company and all registration and filing
fees imposed by the SEC, any state securities commission or any securities
exchange or quotation system on which the Common Stock is then traded or quoted.
The Holders of Registrable Shares shall be responsible for any brokerage or
underwriting commissions and taxes of any kind (including, without limitation,
transfer taxes) with respect to any disposition, sale or transfer of Registrable
Shares and for any legal, accounting and other expenses incurred by them. The
Holder requesting an amendment to any Registration Statement pursuant to Section
1(d) above shall bear all fees, costs and expenses incurred by the Company or by
such Holder in connection therewith or with the delisting of such Deregistered
Shares from any national securities exchange or quotation system on which such
Deregistered Shares had been listed for trading.
7. INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify
each of the Holders, each person who holds a direct or indirect ownership
interest in a Holder or who controls (within the meaning of the Securities Act
or the Exchange Act) a Holder and their respective former and existing officers,
directors, agents, representatives and affiliates (an "Indemnitee") against any
and all losses, claims, damages, actions, liabilities, costs and expenses
(including without limitation reasonable attorneys' fees, expenses and
disbursements documented in writing), joint or several, arising out of or based
upon any untrue or alleged untrue statement of material fact contained in the
Registration Statement or any prospectus contained therein or in any information
incorporated by reference in any thereof, or any omission or alleged omission to
state therein a 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, except insofar as and to the extent that such statement or
omission arose out of or was based upon information regarding a Holder or its
plan of distribution or Registrable Shares which was furnished to the Company by
such Holder for use therein, provided, further that the Company shall not be
liable to any Indemnitee in any such case to the extent that any such loss,
claim, damage, liability (or action or proceeding in respect thereof) or expense
arises out of or is based upon (i) an untrue statement or alleged untrue
statement or omission or alleged omission made in such Registration Statement,
any such preliminary prospectus, final prospectus, summary prospectus, amendment
or supplement in reliance upon and in conformity with information furnished to
the Company for use in connection with the Registration Statement or the
prospectus contained therein by such Indemnitee or (ii) such Indemnitee's
failure to send or give a copy of the final prospectus furnished to it by the
Company at or prior to the time such action is required by the Securities Act to
the person claiming an untrue statement or alleged untrue statement or omission
or alleged omission if such statement or omission was corrected in such final
prospectus.
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8. COVENANTS OF HOLDERS. Each of the Holders hereby agrees (a) to
furnish in writing to the Company all such information required to be furnished
by the Securities Act in connection with the preparation of the Registration
Statement and any filings with any state securities commissions as the Company
may reasonably request, (b) so long as the Company has met its obligations under
Section 2(a) hereof, to deliver or cause delivery, to the extent required by all
applicable federal and state securities laws, a copy of the prospectus (as
amended or supplement from time to time) contained in the Registration Statement
to any purchaser of the shares covered by the Registration Statement from the
Holder, (c) to notify the Company of any sale of Registrable Securities by such
Holder, and (d) to indemnify the Company, its former and existing officers,
directors, employees, agents, representatives and affiliates, and each person,
if any, who controls the Company within the meaning of the Securities Act
against any and all losses, claims, damages, actions, liabilities, costs and
expenses arising out of or based upon (i) any untrue statement or alleged untrue
statement of material fact contained in either the Registration Statement or the
prospectus, or any omission or alleged omission to state therein a 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, if and to
the extent that such statement or omission arose out of or was based upon
information regarding the Holder or its plan of distribution which was furnished
to the Company by the Holder expressly for use therein, or (ii) the failure by
the Holder or any underwriter, broker, dealer or agent acting for or on behalf
of such Holder to deliver or cause to be delivered the prospectus contained in
the Registration Statement (as amended or supplemented, if applicable) furnished
by the Company to the Holder to any purchaser of the Registrable Shares covered
by the Registration Statement from the Holder. In the event that the Company is
unable to perform any obligation hereunder because a Holder, after request by
the Company, refuses to cooperate with the Company in a manner necessary for the
Company to perform such obligation, any time period relating to such obligation
shall be extended for the same period of time in which the Holder's failure to
cooperate causes the Company's non-performance.
9. SUSPENSION OF REGISTRATION REQUIREMENT.
(a) The Company shall promptly notify each Holder of, and
confirm in writing, the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose. The Company shall use reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of the Registration
Statement at the earliest possible moment.
(b) Notwithstanding anything to the contrary set forth in this
Agreement, the Company's obligation under this Agreement to use reasonable
efforts to cause the Registration Statement and any filings with any state
securities commission to be made or to become effective or to amend or
supplement the Registration Statement shall be suspended in the event and during
such period pending negotiations relating to, or consummation of, a transaction
or the occurrence of an event that would require additional disclosure of
material information by the Company in the Registration Statement or such
filing, as to which the Company has a bona
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fide business purpose for preserving confidentiality or which renders the
Company unable to comply with SEC requirements (such circumstances being
hereinafter referred to as a "Suspension Event") that would make it impractical
or unadvisable to cause the Registration Statement or such filings to be made or
to become effective or to amend or supplement the Registration Statement, but
such suspension shall continue only for so long as such event or its effect is
continuing but in no event will (i) any single suspension continue for more than
60 days and (ii) the total number of days of suspension exceed 120 days in any
twelve month period (the period of any suspension, a "Suspension Period"). The
Company shall notify promptly the Holder in writing of the existence of any
Suspension Event.
(c) Each Holder whose Registrable Shares are covered by a
Registration Statement filed pursuant to Sections 1(a), 1(b) or 1(c) hereof
agrees, if requested by the Company's underwriters or financial advisors (the
"Advisors") in an offering of the Company's securities pursuant to a
registration statement filed with the SEC (a "Registered Offering"), not to
effect any public sale or distribution of any shares of Common Stock of the
Company received in exchange for Units, including a sale pursuant to Rule 144 or
Rule 144A under the Securities Act (except as part of such Registered Offering
to the extent permitted by Section 1(c) hereof), during the 15-day period prior
to, and during the 60-day period beginning on, the date of pricing of each
Registered Offering, to the extent timely notified in writing by the Company or
the Advisors; provided, however, that upon the written request of a Holder, the
Company will request that the Advisors, in their discretion, waive the
conditions of this Section 9(c) as to such Holder in connection with a specific
Registered Offering and, if such waiver is granted by the Advisors, then the
Company will waive such Holder's compliance with the conditions of this Section
9(c) in connection with the specific Registered Offering to the extent of the
Advisor's waiver.
(d) Each Holder whose Registrable Shares are covered by a
Registration Statement filed pursuant to Sections 1(a), 1(b) or 1(c) hereof
agrees, if requested by the Company in the case of an offering not made pursuant
to a registration statement filed with the SEC (a "Nonregistered Offering,"
collectively with a Registered Offering, the "Offering"), not to effect any
public sale or distribution of any of the shares of Common Stock of the Company
received in exchange for Units, including a sale pursuant to Rule 144 or Rule
144A under the Securities Act, during the 10-day period prior to, and during the
30-day period (or shorter period as requested by the Company) beginning on, the
date of pricing of such Nonregistered Offering, to the extent timely notified in
writing by the Company.
10. BLACK-OUT PERIOD. Following the effectiveness of any Registration
Statement and the filings with any state securities commissions, each Holder
agrees that it will not effect any sales of the Registrable Shares pursuant to
the Registration Statement or any such filings at any time after it has received
notice from the Company to suspend sales as a result of the occurrence or
existence of any Suspension Event, during any Offering or so that the Company
may correct or update the Registration Statement or such filing pursuant to
Sections 2(c) or 2(d). The Holder may recommence effecting sales of the
Registrable Shares pursuant to the Registration Statement or such filings
following further notice to such effect from the
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Company, which notice shall be given by the Company as soon as practicable but
in no event later than three (3) business days after the conclusion of any such
Suspension Event or Offering.
11. ADDITIONAL SHARES. The Company, at its option, may register, under
any Registration Statement and any filings with any state securities commissions
filed pursuant to this Agreement, any number of unissued shares of Common Stock
or any shares of Common Stock owned by any other shareholder or shareholders of
the Company.
12. CONTRIBUTION. If the indemnification provided for in Sections 7
and 8 is unavailable to an indemnified party with respect to any losses, claims,
damages, actions, liabilities, costs or expenses referred to therein or is
insufficient to hold the indemnified party harmless as contemplated therein,
then the indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, actions, liabilities, costs or expenses
in such proportion as is appropriate to reflect the relative fault of the
Company, on the one hand, and the indemnified party, on the other hand, in
connection with the statements or omissions which resulted in such losses,
claims, damages, actions, liabilities, costs or expenses as well as any other
relevant equitable considerations. The relative fault of the Company, on the one
hand, and of the indemnified party, on the other hand, shall be determined by
reference to, among other factors, whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or by the Holder and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. In no event shall the obligation
of any indemnifying party to contribute under this Section 12 exceed the amount
that such indemnifying party would have been obligated to pay by way of
indemnification if the indemnification provided for under Sections 7 or 8 hereof
had been available under the circumstances.
The Company and the Holders agree that it would not be just and equitable
if contribution pursuant to this Section 12 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
No indemnified party guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any indemnifying party who was not guilty of such fraudulent
misrepresentation.
13. NO OTHER OBLIGATION TO REGISTER. Except as otherwise expressly
provided in this Agreement, the Company shall have no obligation to the Holders
to register the Registrable Shares. The Company shall have no obligation to
register the Units under the Securities Act.
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14. AMENDMENTS AND WAIVERS. The provisions of this Agreement may not
be amended, modified or supplemented without the prior written consent of the
Company and each Holder to be affected by the amendment, modification or
supplement.
15. NOTICES. Except as set forth below, all notices and other
communications provided for or permitted hereunder shall be in writing and shall
be deemed to have been duly given if delivered personally or sent by facsimile,
registered or certified mail (return receipt requested), postage prepaid or
courier or overnight delivery service at the following addresses (or at such
other address for any party as shall be specified by like notice, provided that
notices of a change of address shall be effective only upon receipt thereof),
and further provided that in case of directions to amend the Registration
Statement pursuant to Section 2(b) or Section 8, such notice must be confirmed
in writing by registered or certified mail or by overnight express delivery with
confirmation of receipt:
If to the Company to: Bay Apartment Communities, Inc.
4340 Stevens Creek Boulevard
Suite 275
San Jose, California 95129
Attn: Chief Financial Officer
Fax: (408) 984-7060
With a copy to: Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 02109
Attn: David W. Watson, Esq.
Fax: (617) 523-1231
If to a Holder: at the address set forth on Appendix A
to this Agreement
With a copy to: Jones, Day Reavis & Pogue
1900 Huntington Center
41 South High Street
Columbus, OH 43215
Attn: Michael K. Ording, Esq.
Fax (614) 469-3839
16. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the successors and assigns of the Company. This
Agreement may not be assigned by any Holder and any attempted assignment hereof
by any Holder will be void and of no effect and shall terminate all obligations
of the Company hereunder with respect to such Holder, PROVIDED, HOWEVER, that
any assignment by a Holder to another Holder (as defined below) shall not
constitute an "assignment" pursuant to this Section 16.
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17. DEFINITION OF "HOLDERS" OR A "HOLDER". "Holders" or a "Holder"
under this Registration Rights Agreement shall include (i) any Limited Partner
(including each person listed on Exhibit A to this Agreement), (ii) any
Substituted Limited Partner, and (iii) any Assignee.
18. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
19. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware applicable to contracts
made and to be performed wholly within said State.
20. SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
21. ENTIRE AGREEMENT. This Agreement is intended by the parties as a
final expression of their agreement and, except with respect to the Limited
Partnership Agreement, is intended to be the complete statement of the agreement
and understanding of the parties hereto in respect of the subject matter
contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth in the Limited Partnership Agreement or
as set forth or referred to herein, with respect to such subject matter. Except
with respect to the Limited Partnership Agreement, this Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter. In the event there is a conflict between this Agreement and the
Limited Partnership Agreement, the provisions of the Limited Partnership
Agreement shall govern.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, this Registration Rights Agreement is executed as of
the date first written above.
BAY APARTMENT COMMUNITIES, INC.
/s/ Jeffrey B. Van Horn
-------------------------------------------------
Name: Jeffrey B. Van Horn
Title: Vice President and Chief Financial Officer
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13
SIGNATURE PAGE TO
REGISTRATION RIGHTS AGREEMENT
BY AND BETWEEN
THE LIMITED PARTNERS OF BAY PACIFIC NORTHWEST, L.P.
AND
BAY APARTMENT COMMUNITIES, INC.
Randy J. Pace
-------------------------------------------------------
(Name of Limited Partner)
/s/ Thomas J. Patterson
-------------------------------------------------------
(Signature of Limited Partner or Representative)
Thomas J. Patterson, Attorney-in-fact for Randy J. Pace
-------------------------------------------------------
(Title of Representative, if Applicable)
13
14
SIGNATURE PAGE TO
REGISTRATION RIGHTS AGREEMENT
BY AND BETWEEN
THE LIMITED PARTNERS OF BAY PACIFIC NORTHWEST, L.P.
AND
BAY APARTMENT COMMUNITIES, INC.
J. Ronald Terwilliger
-------------------------------------------------------
(Name of Limited Partner)
/s/ J. Ronald Terwilliger
-------------------------------------------------------
(Signature of Limited Partner or Representative)
-------------------------------------------------------
(Title of Representative, if Applicable)
14
15
SIGNATURE PAGE TO
REGISTRATION RIGHTS AGREEMENT
BY AND BETWEEN
THE LIMITED PARTNERS OF BAY PACIFIC NORTHWEST, L.P.
AND
BAY APARTMENT COMMUNITIES, INC.
-------------------------------------------------------
(Name of Limited Partner)
/s/ Robert C. Speicher
-------------------------------------------------------
(Signature of Limited Partner or Representative)
-------------------------------------------------------
(Title of Representative, if Applicable)
15
16
SIGNATURE PAGE TO
REGISTRATION RIGHTS AGREEMENT
BY AND BETWEEN
THE LIMITED PARTNERS OF BAY PACIFIC NORTHWEST, L.P.
AND
BAY APARTMENT COMMUNITIES, INC.
Paul M. Lehner
-------------------------------------------------------
(Name of Limited Partner)
/s/ Paul M. Lehner
-------------------------------------------------------
(Signature of Limited Partner or Representative)
-------------------------------------------------------
(Title of Representative, if Applicable)
16
17
SIGNATURE PAGE TO
REGISTRATION RIGHTS AGREEMENT
BY AND BETWEEN
THE LIMITED PARTNERS OF BAY PACIFIC NORTHWEST, L.P.
AND
BAY APARTMENT COMMUNITIES, INC.
TCF RESIDENTIAL PARTNERSHIP, LTD.
By: Mill Spring Holdings, Inc.
-------------------------------------------------------
(Name of Limited Partner)
/s/ Timothy J. Hogan
-------------------------------------------------------
(Signature of Limited Partner or Representative)
Timothy J. Hogan, Vice President
-------------------------------------------------------
(Title of Representative, if Applicable)
17
18
SIGNATURE PAGE TO
REGISTRATION RIGHTS AGREEMENT
BY AND BETWEEN
THE LIMITED PARTNERS OF BAY PACIFIC NORTHWEST, L.P.
AND
BAY APARTMENT COMMUNITIES, INC.
Max L. Gardner
-------------------------------------------------------
(Name of Limited Partner)
/s/ Max L. Gardner
-------------------------------------------------------
(Signature of Limited Partner or Representative)
-------------------------------------------------------
(Title of Representative, if Applicable)
18
19
SIGNATURE PAGE TO
REGISTRATION RIGHTS AGREEMENT
BY AND BETWEEN
THE LIMITED PARTNERS OF BAY PACIFIC NORTHWEST, L.P.
AND
BAY APARTMENT COMMUNITIES, INC.
Clifford A. Breining
-------------------------------------------------------
(Name of Limited Partner)
/s/ Clifford A. Breining
-------------------------------------------------------
(Signature of Limited Partner or Representative)
-------------------------------------------------------
(Title of Representative, if Applicable)
19
20
SIGNATURE PAGE TO
REGISTRATION RIGHTS AGREEMENT
BY AND BETWEEN
THE LIMITED PARTNERS OF BAY PACIFIC NORTHWEST, L.P.
AND
BAY APARTMENT COMMUNITIES, INC.
TCR Northern California 1993, Inc.
-------------------------------------------------------
(Name of Limited Partner)
/s/ Clifford A. Breining
-------------------------------------------------------
(Signature of Limited Partner or Representative)
Vice President
-------------------------------------------------------
(Title of Representative, if Applicable)
20
21
SIGNATURE PAGE TO
REGISTRATION RIGHTS AGREEMENT
BY AND BETWEEN
THE LIMITED PARTNERS OF BAY PACIFIC NORTHWEST, L.P.
AND
BAY APARTMENT COMMUNITIES, INC.
TC Residential Seattle III, Inc.
-------------------------------------------------------
(Name of Limited Partner)
/s/ Clyde P. Holland, Jr.
-------------------------------------------------------
(Signature of Limited Partner or Representative)
President
-------------------------------------------------------
(Title of Representative, if Applicable)
21
22
SIGNATURE PAGE TO
REGISTRATION RIGHTS AGREEMENT
BY AND BETWEEN
THE LIMITED PARTNERS OF BAY PACIFIC NORTHWEST, L.P.
AND
BAY APARTMENT COMMUNITIES, INC.
William W. Thompson
-------------------------------------------------------
(Name of Limited Partner)
/s/ William W. Thompson
-------------------------------------------------------
(Signature of Limited Partner or Representative)
-------------------------------------------------------
(Title of Representative, if Applicable)
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APPENDIX A
Agreed
Initial Value of
Name/Address Percentage Number Cash Contributed Total
of Partner Interest of Units Contribution Property Contribution
- ---------- -------- -------- ------------ -------- ------------
General Partner
- ---------------
Bay Apartment Communities, Inc.
4340 Stevens Creek Boulevard
Suite 275
San Jose, CA 95129 N/A N/A $3,732,750.74 N/A $3,732,750.74
Limited Partners
- ----------------
J. Ronald Terwilliger
2859 Paces Ferry Road, Suite 1400
Atlanta, GA 30339 29.0285% 47,414.49 N/A $1,785,630 $1,785,630
Robert C. Speicher
999 Baker Way, Suite 301
San Mateo, CA 94404 21.5485% 35,196.79 N/A $1,325,511 $1,325,511
TCF Residential Partnership, Ltd.
3200 Trammel Crow Center
2001 Ross Avenue
Dallas, TX 75201 35.4884% 57,966.04 N/A $2,183,001 $2,183,001
William W. Thompson
591 Redwood Highway, Suite 5275
Mill Valley, CA 94941 0.3198% 522.40 N/A $19,674 $19,674
TC Residential Seattle III, Inc.
4010 Lake Washington Blvd, N.E.
Suite 330
Kirkland, WA 98003 7.2156% 11,785.75 N/A $443,851 $443,851
Randy J. Pace
717 North Harwood St., Suite 1200
Dallas, TX 75201 1.6196% 2,645.48 N/A $99,629 $99,629
Max L. Gardner
4340 Stevens Creek Blvd., Suite 275
San Jose, CA 95129 2.6300% 4,295.84 N/A $161,781 $161,781
Paul M. Lehner
3050 Bank One Center
1717 Main Street
Dallas, TX 75201 2.1100% 3,446.41 N/A $129,792 $129,792
Clifford A. Breining
P. O. Box 9540
6552 Vin Dos Valley
Rancho Santa Fe, CA 92067 0.03% 64.68 N/A $2,436 $2,436
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