LOCK-UP AGREEMENT
THIS LOCK-UP AGREEMENT (this "Agreement"), is made as of March 22,
2000 by and among Acadia Realty Trust (the "Company") and Carnegie Corporation
of New York, Five Arrows Realty Securities LLC, Harvard Private Capital Realty,
Inc., Xxxxxx Xxxxxx Medical Institute, The Board of Trustees of the Xxxxxx
Xxxxxxxx Junior University, The Vanderbilt University, TRW Master Trust, Yale
University, Yale University Retirement Plan for Staff Employees and RD New York
VI, LLC ("RDNY") (collectively, the "Shareholders").
BACKGROUND
The Shareholders hold the respective common shares of beneficial
interest of the Company (the "Shares") set forth opposite their name on Schedule
A (the "Lock-Up Shares").
The Shareholders have been partners in the following partnerships: RD
Properties, L.P. VI ("RDVI"), RD Properties, L.P. VIA ("RDVIA"), and RD
Properties, L.P. VIB ("RDVIB") (collectively, the "Partnerships").
The Partnerships and RDNY, together with other signatories, are
parties to a Registration and Lock-up Agreement dated August 12, 1998 which
contains provisions, among others, restricting the sale of the Lock-Up Shares
(other than those Shares acquired subsequent to August 12, 1998 (the
"Post-Closing Shares")) and providing for the registration of the Lock-Up Shares
(other than the Post-Closing Shares) (as such registration provisions are
amended on or before the date of this Agreement to extend the Company's
registration obligations to December 28, 2003 (i.e. the date which is 36 months
after the outside expiration date of the Lock-Up (defined below))) (the
"Registration Rights Agreement").
The Partnerships are governed by the following agreements
(collectively, the "Partnership Agreement(s)"): (1) RDVI: Second Amended and
Restated Agreement of Limited Partnership dated January 1, 1998; (2) RDVIA:
Agreement of Limited Partnership dated May 6, 1998 and (3) RDVIB: Agreement of
Limited Partnership dated May 6, 1998. Each of the Partnership Agreements
contains provisions restricting the sale of the Lock-Up Shares (other than the
Post-Closing Shares) which were in addition to the restrictions set forth in the
Registration Rights Agreement (such provisions, together with those contained in
the Registration Rights Agreement, are collectively referred to as the "Original
Lock-Up Provisions").
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The Original Lock-Up Provisions have expired or will shortly expire in
accordance with their terms.
On or prior to the date of this Agreement, the Partnerships have
distributed all Lock-Up Shares (other than the Post-Closing Shares which were
previously held by the applicable Shareholder) to the Shareholders in accordance
with the respective Partnership Agreements.
On or prior to the date of this Agreement, the Company has filed a
shelf registration statement in accordance with the Registration Rights
Agreements to permit the resale of the Lock-Up Shares (other than the
Post-Closing Shares) (the "Shelf Registration"). If the Shelf Registration has
not been declared effective by the Securities and Exchange Commission ("SEC")
within the time period set forth in this Agreement, the Lock-Up shall expire.
The Shareholders and the Company agree that it is in their mutual best
interests to be bound by a new lock-up on the terms set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual agreements herein
contained and intending to be legally bound hereby, the parties hereto hereby
agree as follows:
1. Lock-Up Agreement. Subject to the terms of this Agreement, each
Shareholder agrees that it will not sell, assign, pledge or otherwise transfer
("Transfer") its Lock-Up Shares until December 28, 2000 (the "Lock-Up").
2. Permitted Transfers. The Lock-Up shall not apply to (i) a Transfer
of the Lock-Up Shares to a Permitted Transferee or (ii) a bona fide pledge of
the Lock-Up Shares (each a "Permitted Transfer"). For purposes of this
Agreement, the term "Permitted Transferee" means (i) any partner or other equity
owner of a Shareholder; (ii) any equity owner of any partner or other equity
owner of a Shareholder; (iii) members of the Immediate Family (as defined below)
of any equity owner of a Shareholder (or any equity thereof) and trusts for the
benefit of one or more members of the Immediate Family of a Shareholder (or any
equity owner thereof) created for estate and/or gift tax purposes and/or (iv)
any public charity, public foundation or charitable institution as defined in
Section 501(c)(3) of the Internal Revenue Code of 1986, as amended. For purposes
of this Agreement, the term "Immediate Family" means, with respect to any
natural person, such natural person's spouse, parents, parents-in-law,
descendants, nephews, nieces, brothers, sisters, brothers-in-law, sisters-in-law
and children-in-law. A Permitted Transfer shall not be deemed effective, and the
Company may issue stop transfer instructions to its transfer agent in connection
with a purported Transfer of the Lock-Up Shares, unless and until the transferor
shall give the Company written notice stating the name and address of the
transferee and identifying the securities which are being Transferred and the
Company shall have received the written
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agreement of the transferee to be bound by the terms of this Agreement as if an
original signatory hereto.
3. Release Events. Without the need for further documentation, if any
of the following events shall occur (x) the Lock-Up shall expire and (y) in the
case of clause (viii) only, this Agreement shall automatically terminate:
(i) both Xxxx Xxxxxxx and Xxxxxxx X. Xxxxxxxxx are not
executive officers of the Company and spending a substantial
portion of their time on the management of the Company;
(ii) a tender offer (other than a Company Tender Offer (defined
below)) is initiated for the Shares;
(iii) the Shares have been suspended from trading or have been
delisted;
(iv) either Xxxx Xxxxxxx or Xxxxxxx X. Xxxxxxxxx are the subject
of a governmental investigation required to be disclosed pursuant
to Item 401(f)(2) through (6) of Regulation S-K promulgated under
the Securities Act of 1933, as amended, or the occurrence
of a bankruptcy with respect to the Company;
(v) either Xxxx Xxxxxxx or Xxxxxxx X. Xxxxxxxxx is not a
member of the board of trustees of the Company;
(vi) either Xxxx Xxxxxxx or Xxxxxxx X. Xxxxxxxxx has, as a
result of a voluntary decision, ceased to be an executive officer
of the Company who spends a substantial portion of his time on the
management of the Company;
(vii) the Shelf Registration has not been declared effective
by the SEC on or before May 1, 2000; or
(viii) Shareholders holding a majority of the Lock-Up Shares
(excluding any Lock-Up Shares held by RDNY or any of its Permitted
Transferees) vote to terminate this Agreement; provided, however,
that neither RDNY nor any of its Permitted Transferees shall be
entitled to vote its Lock-Up Shares in connection
with such vote.
4. Company Tender Offer. The Shareholders agree not to tender their
Lock-Up Shares (or any other Shares they hold) to the Company (or its
affiliates) in connection
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with any tender offer by the Company (or its affiliates) for the Company's
Shares which commences at any time prior to December 28, 2000 (a "Company Tender
Offer").
5. Miscellaneous.
(a) Controlling Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
(b) Notices. All notices and other communications hereunder shall
be in writing and shall be sent by certified mail, postage prepaid,
return receipt requested; by an overnight express courier service that provides
written confirmation of delivery; or by facsimile with written confirmation by
the sending machine or with telephone confirmation of receipt, addressed as
follows:
(i) If to Company:
Acadia Realty Trust
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: President
With copy to:
Acadia Realty Trust
00 Xxxxxxxxx Xxxxxxxxxxx
Xxxx Xxxxxxxxxx, XX 00000-0000
Attention: General Counsel
(ii) If to a Shareholder, to the address
of such Shareholder appearing below
the Shareholder's signature on the
signature page hereof:
Any party may alter the address to which communications or copies are
to be sent by giving notice of such change of address in conformity with the
provisions of this paragraph for the giving of notice. Notices given hereunder
shall be deemed received upon actual receipt thereof or, in the case of notice
by mail, upon two days from the date notice is first deposited in the mail in
the manner provided above
(c) Binding Nature of Agreement. This Agreement shall be binding
upon and inure to the benefit of the Company and its
successors and assigns and shall be binding upon each Shareholder and his/its
heirs, administrators, successors and assigns.
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(d) Execution in Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually taken together, shall
bear the signatures of all of the parties reflected hereon as the signatories.
(e) Provisions Separable. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
(f) Entire Agreement; Amendments. This Agreement contains the entire
understanding among the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied, oral or written,
except as herein contained. This Agreement may not be amended or terminated
other than with the consent of Shareholders holding a majority of the Lock-Up
Shares (excluding any Lock-Up Shares held by RDNY or any of its Permitted
Transferees); provided, however, that neither RDNY nor any of its Permitted
Transferees shall be entitled to vote its Lock-Up Shares in connection with such
vote.
(g) Section Headings. The section headings in this Agreement are for
convenience only; they form no part of this Agreement and shall not affect its
interpretation.
[Signature page follows]
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IN WITNESS WHEREOF, the parties executed and delivered this Agreement
on the date first above written.
ACADIA REALTY TRUST
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: President
CARNEGIE CORPORATION OF NEW YORK
By: /s/ D. Xxxxx Xxxxxx
--------------------------------------
Name: D. Xxxxx Xxxxxx
Title: Vice President and Chief
Investment Officer
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: D. Xxxxx Xxxxxx, Vice President and Chief
Investment Officer
FIVE ARROWS REALTY SECURITIES LLC
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
c/o Rothschild Realty Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Xx. Vice President
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HARVARD PRIVATE CAPITAL REALTY,
INC.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attn: Xxxxxx XxXxxxxx, Vice President
XXXXXX XXXXXX MEDICAL INSTITUTE
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Director - Private Investments
0000 Xxxxx Xxxxxx Xxxx
Xxxxx Xxxxx, Xxxxxxxx 00000-0000
Attn: Xxxx Xxxxxxx, Director - Private
Investments
THE BOARD OF TRUSTEES OF THE
XXXXXX XXXXXXXX JUNIOR UNIVERSITY
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title: Director of Real Estate Investments
Stanford Management Company
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxx, Director of Real Estate
Investments
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THE VANDERBILT UNIVERSITY
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Treasurer
Office of the Treasurer
0000 Xxxx Xxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, Treasurer
TRW INVESTMENT MANAGEMENT
COMPANY
By: Boston Safe Deposit and Trust Company,
solely in its capacity as Trustee for the
TRW Master Trust (as directed by TRW
Investment Management Co.), and not in its
individual capacity
By: /s/ Xxxxxx Xxxxx
-----------------------------
Name: Xxxxxx Xxxxx
Title: Authorized Signatory
TRW Investment Management Company
0000 Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxx 00000
Attn: Xxxxx X. Xxxxxxxxx, Senior Portfolio
Manager
The decision to participate in the investment, any
representations made herein by the participant, and any
actions taken hereunder by the participant has/have
been made solely at the direction of the investment
fiduciary who has sole investment discretion with
respect to this investment.
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YALE UNIVERSITY
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Investment Officer
Yale Investments Xxxxxx
000 Xxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attn: Xxxxx Xxxxxxx, Chief Investment Officer
YALE UNIVERSITY RETIREMENT PLAN
FOR STAFF EMPLOYEES
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
000 Xxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attn: Xxxx Xxxxxx, Director of Investments
RD NEW YORK VI, LLC
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Member
00 Xxxxxxxxx Xxxxxxxxxxx
Xxxx Xxxxxxxxxx, XX 00000
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SCHEDULE A
Lock-Up Shares
Name Lock-Up Shares Held Percentage Held1
---- ------------------- ---------------
Carnegie Corporation of New York 942,653 5.5691
Five Arrows Realty Securities LLC 3,266,667 19.2991
Harvard Private Capital Realty, Inc. 2,000,000 11.8157
Xxxxxx Xxxxxx Medical Institute 2,266,667 13.3912
The Board of Trustees of the Xxxxxx
Xxxxxxxx Junior University 2,133,333 12.6035
The Vanderbilt University 1,346,647 7.9558
TRW Master Trust 1,200,000 7.0894
Yale University 3,366,616 19.8895
Yale University Retirement Plan for
Staff Employees 403,994 2.3867
RD New York VI, LLC 134,661 --
------- ---
TOTALS 17,061,238 100.0000%
========== =========
--------
1 Percentages are calculated by excluding any Lock-Up Securities held by RDNY.
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