FIRST AMENDMENT
TO
REGISTRATION RIGHTS AGREEMENT
This First Amendment to the Registration Rights Agreement (this
"Amendment") is made and entered into as of November 2, 2004, by and among GMH
COMMUNITIES TRUST, a Maryland real estate investment trust (the "Company"), GMH
COMMUNITIES, LP, a Delaware limited partnership (the "Partnership"), GMH
COMMUNITIES GP, LLC, a Delaware limited liability company and the sole general
partner of the Partnership (together with any successor to general partner of
the Partnership "GMH GP"), XXXX X. XXXXXXXX, VORNADO REALTY L.P., a Delaware
limited partnership ("VRLP"), and the Permitted Transferees of VRLP (such
entities or Permitted Transferees are sometimes referred to herein individually
as an "Investor" and collectively as the "Investors"). All capitalized terms
used herein and not otherwise defined herein shall have the meanings set forth
in the Original Registration Rights Agreement (as hereinafter defined).
W I T N E S S E T H:
WHEREAS, VRLP received, on July 27, 2004 (as further amended and
restated on October 28, 2004), a warrant issued by the Company, the Partnership
and GMH GP (the "Warrant") entitling it to acquire, among other things, Common
Shares of the Company and Common Units, which Common Units may be redeemed for
Common Shares pursuant to certain redemption rights set forth in the Partnership
Agreement of the Partnership;
WHEREAS, in connection with the issuance of the Warrant, the Company
agreed to provide to the Investor certain registration rights as set forth in a
Registration Rights Agreement, dated July 27, 2004, by and among the parties
hereto (the "Original Registration Statement"), which rights related to the
registration of (i) the Common Shares issuable upon exercise of the Warrant and
(ii) Common Shares issued upon redemption of Common Units issuable upon exercise
of the Warrant; and
WHEREAS, the parties hereto now desire to amend the Original
Registration Rights Agreement to expand the registration rights contained
therein to include the registration of the Common Shares issuable to Vornado CCA
Gainesville, L.L.C., a Delaware limited liability company ("the Contributor"),
pursuant to a Contribution Agreement, dated October 14, 2004, by and between the
Contributor and the Partnership, and relating to the contribution of the
Contributor's ownership of a ninety percent (90%) membership interest in New
Towmed, LLC, a Delaware limited liability company, to the Partnership.
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and subject to and
on the terms and conditions herein set forth, the parties hereto agree as
follows:
1. The definition of "Eligible Securities" as set forth in Section I.6
of the Original Registration Rights Agreement shall be amended and restated in
its entirety by replacing it with the following:
"I.6. "Eligible Securities" means all or any portion
of (i) (x)the Common Shares acquired or that may be acquired
by an Investor upon exercise of the Warrant, dated July 27,
2004, issued by the Company, the Partnership and GMH GP
(including such amendments thereto, the "Warrant") to VRLP,
or (y) Common Shares acquired or that may be acquired upon
redemption or exchange of the Common Units issuable upon
exercise of the Warrant, whether such Shares or Units are
newly issued or acquired directly or indirectly from Xxxx X.
Xxxxxxxx, and (ii) the Common Shares acquired or that may be
acquired by Vornado CCA Gainesville, L.L.C., a Delaware
limited liability company ("Vornado CCA Gainesville"), upon
redemption or exchange of the Common Units issued pursuant to
a Contribution Agreement, dated October 14, 2004, by and
among Vornado CCA Gainesville and the Partnership. As to any
proposed offer or sale of Eligible Securities, such
securities shall cease to be Eligible Securities with respect
to such proposed offer or sale when (i) a registration
statement (other than a registration statement filed pursuant
to Article II) with respect to the sale of such securities
shall have become effective under the Securities Act and such
securities shall have been disposed of in accordance with
such registration statement or (ii) such securities are
permitted to be disposed of pursuant to Rule 144(k) (or any
successor provision to such Rule) under the Securities Act as
confirmed in a written opinion of counsel to the Company
addressed to the Investors, (iii) such securities shall have
been otherwise transferred pursuant to Rule 144 (or any
successor rule) or pursuant to another applicable exemption
under the Securities Act, new certificates for such
securities not bearing a legend restricting further transfer
shall have been delivered by the Company and such securities
shall be freely transferable to the public without
registration under the Securities Act or (iv) such securities
are no longer outstanding."
2. The definition of "Investor" as set forth in Section I.9 of the
Original Registration Rights Agreement shall be amended and restated in its
entirety by replacing it with the following: "I.9. "Investor" means any of VRLP,
Vornado CCA Gainesville and any of its Permitted Transferees."
3. The definition of "Permitted Transferees" as set forth in Section
I.16 of the Original Registration Rights Agreement shall be amended and restated
in its entirety by replacing it with the following:
"I.16. "Permitted Transferees" means (i) with respect to the
Eligible Securities issuable upon, or in connection with,
exercise of the Warrant, any affiliate of VRLP and any
Persons to whom Permitted Transfers may be made under the
Partnership Agreement or that are a permitted transferee of
Common Shares or Common Units under the warrant issued by the
Company as of the date hereof, and (ii) with respect to the
Eligible Securities issued in connection with the
Contribution Agreement, any Persons to whom Permitted
Transfers may be made under the Partnership Agreement or that
are permitted transferees under the Contribution Agreement."
4. Except as modified by this Amendment, the Original Registration
Rights Agreement is hereby reaffirmed in its entirety by the parties hereto and
shall continue in full
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force and effect; provided, however, that, upon execution of this Amendment by
Vornado CCA Gainesville, such entity shall acquire all of the rights, and agree
to be bound by all of the obligations, of an Investor as set forth under the
terms of the Original Registration Rights Agreement, as if it had been a party
to the Original Registration Rights Agreement upon the execution thereof.
5. This Amendment shall be construed and enforced in accordance with
the internal laws of the State of New York, without reference to its rules as to
conflicts or choice of laws.
6. This Amendment, together with the Original Registration Rights
Agreement, constitute the entire agreement and understanding among the parties
and supersedes any prior understandings and/or written or oral agreements among
them respecting the subject matter herein.
7. This Amendment 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.
(signatures appear on the following page(s))
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IN WITNESS WHEREOF, the undersigned have executed this Amendment as of
the day first written above.
GMH COMMUNITIES TRUST
By: /s/ Xxxx X. Xxxxxxxx
--------------------
Xxxx X. Xxxxxxxx, President and CEO
GMH COMMUNITIES, LP
By: GMH COMMUNITIES GP TRUST,
its general partner
By: /s/ Xxxx X. Xxxxxxxx
Name: XXXX X. XXXXXXXX
Title: President and CEO
GMH COMMUNITIES GP, LLC
By: /s/ Xxxx X. Xxxxxxxx
--------------------
Name: XXXX X. XXXXXXXX
Title: President and CEO
By: /s/ Xxxx X. Xxxxxxxx
--------------------
Name: XXXX X. XXXXXXXX
VORNADO REALTY L.P.
By: VORNADO REALTY TRUST,
its general partner
By: /s/ Xxxxxx Xxxxxx
--------------------
Name: Xxxxxx Xxxxxx
Title: Executive Vice President Finance
and Administration and Chief
Financial Officer
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VORNADO CCA GAINESVILLE, L.L.C.
By: VORNADO REALTY L.P.,
its sole member
By: VORNADO REALTY TRUST,
its general partner
By: /s/ Xxxxxx Xxxxxx
--------------------
Name: Xxxxxx Xxxxxx
Title: Executive Vice President Finance and
Administration and Chief Financial
Officer
Address: 000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
ATTN: Xxx Xxxxxxxxxxx
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