REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of September 30, 1996 (this
"AGREEMENT"), by and among Apartment Investment and Management Company, a
Maryland corporation (the "COMPANY"), and the persons listed on Schedule A
hereto (each, an "INVESTOR").
WHEREAS, pursuant to that certain Registration Rights Agreement, dated
as of July 29, 1994 (the "PREVIOUS REGISTRATION AGREEMENT"), by and among the
Company and certain holders of units ("OP UNITS") of limited partnership
interest in AIMCO Properties, L.P., a Delaware limited partnership ("AIMCO OP"),
the Company agreed to register for sale shares of the Company's Class A Common
Stock, par value $.01 per share (the "COMMON STOCK"), that may be issued by the
Company in exchange for OP Units surrendered for redemption, in accordance with,
and subject to certain restrictions set forth in, the agreement of limited
partnership of AIMCO OP (the "OP PARTNERSHIP AGREEMENT") and the Company's
charter;
WHEREAS, Colorado National Bank ("CNB") has made one or more loans
(the "LOANS") to the Investors and/or their affiliates that are secured by the
Investors' pledge to CNB of (i) the number of OP Units set forth opposite the
name of each Investor under the heading "Pledged OP Units" on Schedule A hereto
(collectively, the "PLEDGED OP UNITS") and (ii) the number of shares of Common
Stock set forth opposite the name of each Investor under the heading "Pledged
Shares" on Schedule A hereto (collectively, the "PLEDGED SHARES");
WHEREAS, CNB has requested that the Investors cause the registration
of (i) the shares of Common Stock that may be issued by the Company in exchange
for Pledged OP Units surrendered for redemption pursuant to the OP Partnership
Agreement, and (ii) the Pledged Shares (collectively, the "REGISTRABLE SHARES");
and
WHEREAS, pursuant to the Previous Registration Agreement, the
Investors acquired certain registration rights from the Company and, in partial
satisfaction of the Company's obligations to the Investors thereunder, the
Company has agreed to enter into this Agreement with the Investors to provide
for the registration of the Registrable Shares.
NOW, THEREFORE, in consideration of the foregoing and the covenants of
the parties set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, subject to the terms
and conditions set forth herein, the parties hereby agree as follows:
Section 1. CERTAIN DEFINITIONS. In this Agreement the following
terms shall have the following respective meanings:
"ACCREDITED INVESTOR" shall have the meaning set forth in Rule 501 of
the General Rules and Regulations promulgated under the Securities Act.
"AFFILIATE" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with the person
specified.
"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 shall be in effect at the relevant time.
"HOLDERS" shall mean (i) the Investors, and (ii) CNB.
"INDEMNIFIED PARTY" shall have the meaning ascribed to it in Section
4(c) of this Agreement.
"INDEMNIFYING PARTY" shall have the meaning ascribed to it in Section
4(c) of this Agreement.
"OP UNITS" shall mean units of limited partnership interest in AIMCO
OP.
"PERSON" shall mean an individual, corporation, partnership, estate,
trust, association, private foundation, joint stock company or other entity.
The terms "REGISTER," "REGISTERED" and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement in
compliance with 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.
"REGISTRABLE SHARES" shall have the meaning ascribed to it in the
recitals to this Agreement.
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"REGISTRATION EXPENSES" shall mean all out-of-pocket expenses
(excluding Selling Expenses) incurred by the Company in complying with Section 2
hereof, 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 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 Company; (e) fees and disbursements of all
independent public accountants of the Company (including without limitation the
expenses of any annual or special audit and "cold comfort" letters required by
the managing underwriter); (f) securities act liability insurance if the Company
so desires; (g) fees and expenses of other Persons reasonably necessary in
connection with the registration, including any experts, retained by the
Company; (h) 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 (i) fees and expenses associated with any NASD filing
required to be made in connection with the registration statement.
"RIGHTS" shall have the meaning ascribed to it in Section 6 of this
Agreement.
"RULE 144" shall mean Rule 144 promulgated by the Commission 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
shall be in effect at the relevant time.
"SELLING EXPENSES" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to any sale of Registrable
Shares.
Section 2. REGISTRATION.
(a) The Company shall prepare and file with the Commission, as
soon as practicable after the date hereof, a registration statement for the
purpose of effecting a Registration of the sale of Registrable Shares by the
Holders; shall use its best
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efforts to effect such Registration within 90 days of the date hereof
(including, without limitation, the execution of an undertaking to file post-
effective amendments and appropriate qualification under applicable state
securities and real estate syndication laws); and shall keep such Registration
continuously effective until the earlier of (i) the latest maturity date of the
Loans, (ii) the date on which all Registrable Shares have been sold pursuant to
such registration statement or Rule 144, and (iii) the date on which all of the
Registrable Shares may be sold in accordance with Rule 144 under the Securities
Act; PROVIDED, HOWEVER, that the Company 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 Company would be
required to execute a general consent to service of process in effecting such
Registration, qualification or compliance unless the Company is already subject
to service in such jurisdiction.
Notwithstanding the foregoing, the Company 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 a period of not more than 120 days during any
one-year period ending on December 31, if the Company shall furnish to the
Holders a certificate signed by the President or any other executive officer or
any director of the Company stating that, in the good faith judgment of the
Company, it would be detrimental to the Company and its shareholders to file
such registration statement or amendment thereto at such time (or continue sales
under a filed registration statement) and therefore the Company has elected to
defer the filing of such registration statement (or suspend sales under a filed
registration statement); PROVIDED, HOWEVER, that the filing of any such
registration statement (or the continuance of sales under a filed registration
statement) shall not be considered detrimental to the Company and its
shareholders solely as a consequence of any adverse effect on the market price
of the Common Stock resulting from such filing (or continued sales).
(b) The Company 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 Company in accordance with the last paragraph of
Section 2(a) above;
(iv) the Company'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 or the initiation
or threat of any proceeding for that purpose; and
(v) the existence of any event, fact or circumstance
that results in a registration statement or prospectus relating to
Registrable Shares or any document incorporated therein by reference
containing an untrue statement of 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 Company agrees to use its best effort to obtain the withdrawal of any order
suspending the effectiveness of any such registration statement or state
qualification at the earliest possible moment.
(c) The Company shall promptly provide the Holders, at no cost
to the Holders, with copies of any registration statement or prospectus relating
to the Registrable Shares, and any post-effective 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 Company 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 amendment thereto. 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 Common Stock is no longer
listed thereon, with such other securities exchange or market on which the
Common Stock is then listed) so as to enable the Holders to the benefits of the
prospectus delivery provisions of Rule 153 under the Securities Act.
(d) The Company agrees to use its best efforts to cause the
Registrable Shares covered by a registration statement to be registered with 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.
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(e) Subject to the Company's Suspension Right, if any event,
fact or circumstance requiring an amendment to a registration statement relating
to the Registrable Shares or supplement to a prospectus relating to the
Registrable Shares shall exist, immediately upon becoming aware thereof the
Company agrees to notify the Holders and 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 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 any material fact required to be stated therein
or necessary to make the statements therein not misleading.
(f) The Company agrees to use commercially reasonable 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 securities of the same class are then listed.
(g) The Company 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 shall have been effective, to
make available to its security holders an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act.
(h) The Company agrees to cooperate with the 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 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.
Section 3. EXPENSES OF REGISTRATION. The Company shall pay all
Registration Expenses incurred in connection with the registration,
qualification or compliance pursuant to Section 2 hereof. 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. Each Holder shall
pay the expenses of its own counsel.
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Section 4. INDEMNIFICATION.
(a) The Company will 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, against all expenses, claims,
losses, damages and liabilities (including reasonable legal 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 relating to
the Registrable Shares, 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,
PROVIDED, HOWEVER, that the Company will not be liable in any such case to the
extent that any such claim, loss, damage, liability or expense arises out of or
is based on any untrue statement or omission or alleged untrue statement or
omission, made in reliance upon and in conformity with information furnished in
writing to the Company by such Holder or underwriter for inclusion therein.
(b) Each Holder will indemnify the Company, each of its
directors and each of its officers who signs the registration statement, each
underwriter, if any, of the Company's securities covered by such registration
statement, and each person who controls the Company or such underwriter within
the meaning of Section 15 of the Securities Act, against all 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 such 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 ease 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 upon and in conformity with information furnished in
writing to the Company 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 otherwise than pursuant to
the provisions of this Section 4 and then, only 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
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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 shall have been authorized in writing by
the Indemnifying Party in connection with the defense of such action, or the
Indemnifying Party shall not have employed counsel to take charge of the defense
of such action or the Indemnified Party shall have 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 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 to such claim or litigation.
(d) If the indemnification provided for in this Section 4 is
unavailable to a party that would have been an Indemnified Party under this
Section in respect of any expenses, claims, losses, damages and liabilities
referred to herein, then each party that 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 Company and each holder of Registrable Shares agrees
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.
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Section 5. INFORMATION TO BE FURNISHED BY HOLDERS. Each Holder shall
furnish to the Company such information as the Company may reasonably request
and as shall be required in connection with the Registration and related
proceedings referred to in Section 2 hereof. If any Holder fails to provide the
Company with such information within three weeks of the Company's request, the
Company shall no longer have any obligations under Section 2 hereof with respect
to such Holder or Registrable Shares owned by such Holder.
Section 6. TRANSFER OF EXCHANGE AND REGISTRATION RIGHTS. The rights
of each Holder under Section 2 hereof and the related rights of each Holder
hereunder (the "RIGHTS") may be assigned by each Holder (i) if the Holder is a
corporation, to a shareholder or shareholders of such Holder, (ii) if the Holder
is a partnership, to a partner or partners of that partnership, (iii) if the
Holder is an individual, to a Family Member (as such term is defined in the OP
Agreement), (iv) upon the death of the Holder, to the heirs of the Holder by
virtue of the Holder's will or the laws of descent and distribution, (v) if the
Holder is a corporation or a partnership, to any Person into or with which the
Holder is merged or consolidated or to which the Holder sells all or
substantially all of its assets, in each case, only in connection with the
transfer of Registrable Shares originally owned by the Holder or Pledged OP
Units originally owned by the Holder in respect of which the Registrable Shares
were issued, or (vi) if the Holder is CNB, to any Person succeeding to all of
CNB's interest in the Registrable Shares, through foreclosure sale or otherwise;
PROVIDED that (w) in each case, the transferee is an Accredited Investor, (x)
such transfer is otherwise effected in accordance with applicable securities
laws and the Company shall have been provided by the transferor and the
transferee with such evidence thereof as the Company may request, including
representations by the transferee in form and content reasonably acceptable to
the Company, (y) the Company is given written notice of such transfer prior to
such transfer (or, in the case of the death of the Holder, as soon as
practicable following the death of the Holder), and (z) the transferee by
written agreement delivered to the Company acknowledges that such transferee is
bound by the terms of this Agreement. In the event of any such permitted
transfer, the defined term "HOLDERS" shall from and after such transfer include
such transferee.
Section 7. ADDITIONAL REPRESENTATIONS. Each Holder agrees that, upon
surrender of any Pledged OP Units for redemption as provided in the OP
Partnership Agreement, such Holder shall make such investment and other
representations in connection with (and as a condition to) the issuance of
Common Stock in exchange for such Pledged OP Units as the Company or AIMCO OP
may reasonably request.
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Section 8. RULE 144 SALES.
(a) The Company covenants that it will file the reports required
to be filed by the Company under the Exchange Act, so as to enable the Holders
to sell Registrable Shares pursuant to Rule 144 under the Securities Act.
(b) In connection with any sale, transfer or other disposition
by any Holder of any Registrable Shares pursuant to Rule 144 under the
Securities Act, the Company 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.
Section 9. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed in all
respects by the laws of the State of Maryland.
(b) ENTIRE AGREEMENT. This Agreement constitutes the full and
entire understanding and agreement between the parties with regard to the
subject matter hereof.
(c) AMENDMENT. No supplement, modification, waiver or
termination of this Agreement shall be binding unless executed in writing by the
party to be bound thereby.
(d) NOTICES, ETC. Each notice, demand, request, request for
approval, consent, approval, disapproval, designation or other communication
(each of the foregoing being referred to herein as a notice) required or desired
to be given or made under this Agreement shall be in writing (except as
otherwise provided in this Agreement), and shall be effective and deemed to have
been received (i) when delivered in person, (ii) when sent by fax with receipt
acknowledged, (iii) five (5) days after having been mailed by certified or
registered United States mail, postage prepaid, return receipt requested, or
(iv) the next business day after having been sent by a nationally recognized
overnight mail or courier service, receipt requested. Notices shall be
addressed as follows (or at such other address or fax number as the Person shall
specify by like notice):
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if to the Company or the Investors:
Xxxxx Xxxxxxxxx
Apartment Investment and Management Company
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
if to CNB:
Xxxxxx Xxxxx
Colorado National Bank
0000 Xxxx Xxxxxxxx
Xxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
and if to any assignee or transferee of a Holder, at such address or fax number
as such assignee or transferee shall have furnished the Company in writing. .
(e) COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which may be executed by fewer than all of the parties
hereto (PROVIDED that each party executes one or more counterparts), each of
which shall be enforceable against the parties actually executing such
counterparts, and all of which together shall constitute one instrument.
(f) SEVERABILITY. In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable or void, this Agreement shall continue in full force and
effect without said provision.
(g) SECTION TITLES. Section titles are for descriptive purposes
only and shall not control or alter the meaning of the Agreement as set forth in
the text.
(h) SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon the parties hereto and their respective successors and assigns.
(i) REMEDIES. The Company and the Investor 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 Company 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
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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 Company 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.
(THE NEXT PAGE IS THE SIGNATURE PAGE)
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
APARTMENT INVESTMENT AND
MANAGEMENT COMPANY
By: ___________________________________________________
Name: _________________________________________________
Title: ______________________________________________
INVESTOR:
Name:__________________________________________________
By:____________________________________________________
Name:__________________________________________________
Title:_________________________________________________
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