EXHIBIT 4.6
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REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into
as of the 6th day of August, 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"),
TMC Apartments, L.L.C., a Louisiana limited liability company (the "UNIT
HOLDER").
WHEREAS, pursuant to that certain Contribution Agreement, dated as of
August 6, 2001 between the Trust, the Operating Partnership and the Unit
Holder (the "Contribution Agreement"), the Unit Holder is 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 Contribution Agreement, the Trust has
agreed to register for sale by the Unit Holder the Shares issuable to Unit
Holder upon exchange of Units issued pursuant to the Contribution 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 August 6, 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 Holder 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
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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
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.
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(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
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.
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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.
(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 Holder, at the address or fax number
set forth below, or at such other address or fax number as Unit Holder
furnished to the Trust in writing or (ii) if to any assignee or transferee
of Unit Holder, 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 each Unit Holder is as
follows:
TMC Apartments, L.L.C.
X.X. Xxx 00000
Xxxxxxx, XX 00000
ATTN: Xxxxxxx X. Xxxxx
Fax: (000) 000-0000
Phone: (000) 000-0000
(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 Holder 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,
a Maryland real estate investment trust
By: /s/ Xxxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice President
AMLI RESIDENTIAL PROPERTIES, L.P.,
a Delaware limited partnership
By: AMLI Residential Properties
Trust, its general partner
By: /s/ Xxxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice President
UNIT HOLDER
TMC Apartments, L.L.C., a Louisiana limited
liability company
By: Xxxxxx Properties, L.L.C.,
a Louisiana limited liability
company
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Manager and Member
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