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EXHIBIT 99.3
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
(Rivercrest Partners II, Ltd.)
This Registration Rights and Lock-Up Agreement (this "Agreement") is
entered into as of April 14, 1998 by and between Gables Residential Trust, a
Maryland real estate investment trust (the "Company"), and Rivercrest Partners
II, Ltd., a Texas limited partnership (the "Contributor"), and its permitted
successors and assigns who have executed a signature page to this Agreement
(each, including the Contributor, a "Holder" and collectively the "Holders").
WHEREAS, the Contributor is to receive units (the "Acquired Units") of
limited partnership interest ("Units") in Gables Realty Limited Partnership, a
Delaware limited partnership (the "Operating Partnership"), issued without
registration under the Securities Act of 1933, as amended (the "Securities
Act"), in consideration for its contribution to the Operating Partnership of
certain property pursuant to that certain Asset Contribution Agreement between
the Operating Partnership and the Contributor dated as of the date hereof (the
"Contribution Agreement");
WHEREAS, under the Second Amended and Restated Agreement of Limited
Partnership of the Operating Partnership, dated as of July 24, 1997, holders of
Units may present such Units to the Operating Partnership for redemption, and
any Units so presented may be acquired by the Company, at the Company's option,
for cash or common shares of beneficial interest, par value $.01 per share
("Common Shares"), of the Company;
WHEREAS, it is a condition precedent to the closing of the
Contribution Agreement that the Company provide the Contributor with the
registration rights set forth in Section 3 hereof.
NOW, THEREFORE, in consideration of the foregoing, the mutual promises
and agreements set forth herein, and other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. Certain Definitions.
As used in this Agreement, in addition to the other terms defined
herein, the following capitalized defined terms shall have the following
meanings:
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Person" shall mean an individual, partnership, corporation, trust, or
unincorporated organization, or a government or agency or political subdivision
thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, as amended or supplemented by
any prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Shares covered by such
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Registration Statement, and by all other amendments and supplements to such
prospectus, including post-effective amendments, and in each case including all
material incorporated by reference therein.
"Registrable Shares" shall mean the Shares, excluding (i) Shares 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, (ii) Shares sold pursuant to Rule 144 under the
Securities Act or (iii) Shares eligible for sale pursuant to Rule 144(k) under
the Securities Act. All references in this Agreement to Rule 144 and
subsections thereof shall refer to corresponding provisions of future law.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance with this Agreement, including, without
limitation: (i) all SEC, stock exchange or NASD registration and filing fees;
(ii) all fees and expenses incurred in connection with compliance with state
securities or "blue sky" laws (including reasonable fees and disbursements of
counsel in connection with "blue sky" qualification of any of the Registrable
Shares and the preparation of a Blue Sky Memorandum) and compliance with the
rules of the NASD; (iii) all expenses of any Persons in preparing or assisting
in preparing, word processing, printing and distributing any Registration
Statement, any Prospectus, certificates and other documents relating to the
performance of and compliance with this Agreement; (iv) all fees and expenses
incurred in connection with the listing, if any, of any of the Registrable
Shares on any securities exchange or exchanges pursuant to Section 5 hereof;
and (v) the fees and disbursements of counsel for the Company and of the
independent public accountants of the Company, including the expenses of any
special audit or "cold comfort" letters required by or incident to such
performance and compliance. Registration Expenses shall specifically exclude
underwriting discounts and commissions relating to the sale or disposition of
Registrable Shares by a selling Holder, the fees and disbursements of counsel
representing a selling Holder, and transfer taxes, if any, relating to the sale
or disposition of Registrable Shares by a selling Holder, all of which shall be
borne by such Holder in all cases.
"Registration Statement" shall mean any registration statement of the
Company and any other entity required to be a registrant with respect to such
registration statement pursuant to the requirements of the Securities Act which
covers the issuance or resale of any of the Registrable Shares on an
appropriate form, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all materials
incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Shares" shall mean any Common Shares issued or to be issued to the
Holders by the Company upon acquisition by the Company of any Acquired Units
presented to the Operating Partnership for redemption.
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2. Lock-up Agreement. Each Holder hereby agrees that (i) for one
(1) year from the date hereof, without the prior written consent of the
Company, it will not offer, pledge, sell, contract to sell, grant any options
for the sale of or otherwise dispose of, directly or indirectly (collectively,
"Dispose"), any Acquired Units and (ii) for thirteen (13) months from the date
hereof (the "Redemption Lock-up Period"), without the prior written consent of
the Company, it will not seek the redemption of Acquired Units.
3. Registration.
(a) Filing of Issuance or Resale Registration Statement. Subject
to the conditions set forth in this Agreement, the Company shall cause to be
filed promptly after [DATE THAT IS 50 WEEKS AFTER SIGNING] a registration
statement (an "Issuance Registration Statement") under Rule 415 under the
Securities Act relating to the issuance to Holders by the Company of Common
Shares upon acquisition by the Company of any Acquired Units presented to the
Operating Partnership for redemption. Thereupon, the Company shall use
reasonable efforts to cause such Registration Statement to be declared
effective by the SEC for all Common Shares covered thereby. The Company agrees
to use reasonable efforts to keep the Issuance Shelf Registration Statement
continuously effective, with respect to the Registrable Shares of a particular
Holder, until the date on which such Holder has redeemed or exchanged such
Holder's Acquired Units for Common Shares.
In the event that the Company is unable to cause such Issuance
Registration Statement to be declared effective by the SEC due to the fact that
Common Shares are being registered on an Issuance Registration Statement or
(except as otherwise permitted by Sections 8(b) and 9) is unable due to such
reason to keep such Issuance Registration Statement effective until the date on
which each Holder has redeemed or exchanged such Holder's Acquired Units for
Common Shares, then, in lieu thereof, the Company shall file a Registration
Statement under Rule 415 under the Securities Act relating to the sale by the
Holders of all of the Registrable Shares in accordance with the terms hereof (a
"Resale Registration Statement"), and shall use reasonable efforts to cause
such Registration Statement to be declared effective by the SEC by the
expiration of the Redemption Lock-up Period.
The Company agrees to use reasonable efforts to keep the Registration
Statement that is filed and declared effective as contemplated in this
paragraph (a) continuously effective until the earliest of (a) the date on
which the Holders no longer hold any Registrable Shares or (b) the date on
which all of the Registrable Shares held or subsequently acquired by the
Holders have become eligible for sale pursuant to Rule 144(k) promulgated under
the Securities Act and the Company has delivered to each such Holder an opinion
of counsel to such effect (hereinafter referred to as the "Shelf Registration
Expiration Date").
(b) Demand Registration. Subject to the conditions set forth in
this Agreement, at any time after the Shelf Registration Expiration Date and
while any Registrable Shares are outstanding, the Company shall, at the written
request of any Holder who is unable to sell its
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Registrable Shares pursuant to Rule 144(k) under the Securities Act, cause to
be filed as soon as practicable after the date of such request by such Holder a
Registration Statement under Rule 415 under the Securities Act relating to the
sale by the Holder of all of the Registrable Shares held by such Holder in
accordance with the terms hereof, and shall use reasonable efforts to cause
such Registration Statement to be declared effective by the SEC as soon as
practicable thereafter. The Company may, in its sole discretion, elect to file
the Registration Statement before receipt of notice from any Holder. The
Company agrees to use reasonable efforts to keep the Registration Statement
continuously effective thereafter until the date on which such Holder no longer
holds any Registrable Shares.
(c) Piggyback Registration. If at any time after the Shelf
Registration Expiration Date and while any Registrable Shares or Acquired Units
are outstanding and a Registration Statement applicable to Holders under
Sections 3(a) or 3(b) is not effective, the Company (in its sole discretion and
without any obligation to do so) proposes to file a registration statement
under the Securities Act with respect to an offering solely of Common Shares
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 Shares, (iv) in
connection with an offering solely to employees of the Company or its
subsidiaries, or (v) relating to a transaction pursuant to Rule 145 of the
Securities Act), whether or not for its own account, 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 each Holder may request (a
"Piggyback Registration"). Subject to the provisions of Section 4 below, the
Company shall include in such Piggyback Registration, in the registration and
qualification for sale under the blue sky or securities laws of the various
states and in any underwriting in connection therewith, all Registrable Shares
for which the Company has received written requests for inclusion therein
within fifteen (15) calendar days after the notice referred to above has been
given by the Company to the Holders. 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 Common Shares requested to be included in such
registration exceeds the number of Common Shares that can be sold in such
offering without impairing the pricing or other commercial practicality of such
offering, the Company will include in such registration in the following
priority: (i) first, all Common Shares the Company proposes to sell, (ii)
second, up to the full number of applicable Common Shares requested to be
included in such registration by holders of Common Shares with prior or
superior piggyback registration rights and (iii) third, up to the full number
of applicable Registrable Shares and Common Shares requested to be included in
such registration by any Holders and other holders of Common Shares with
piggyback registration rights of similar priority which, in the opinion of such
managing underwriter, can be sold without adversely affecting the price range
or probability of
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success of such offering (with the number of such Registrable Shares and other
Common Shares of each Holder and such other holders, respectively, to be
included in the Piggyback Registration to be allocated pro rata among the
Holders and such other holders on the basis of the total number of shares
requested to be included in such registration by all such Holders of
Registrable Shares and such other holders of Common Shares).
(d) [intentionally omitted]
(e) Notification and Distribution of Materials. The Company shall
notify each Holder of the effectiveness of any Registration Statement
applicable to the Shares of such Holder 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 and all related amendments and supplements) and any
documents incorporated by reference in the Registration Statement or 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.
(f) Amendments and Supplements. The Company shall prepare and file
with the SEC from time to time such amendments and supplements to the
Registration Statement and Prospectus used in connection therewith as may be
necessary to keep the Registration Statement effective and to comply with the
provisions of the Securities Act with respect to the issuance or disposition of
all the Registrable Shares until the earlier of (a) such time as all of the
Registrable Shares have been issued or disposed of in accordance with the
intended methods of disposition by the Holders or issuance by the Company as
set forth in the Registration Statement or (b) the date on which the
Registration Statement ceases to be effective in accordance with the terms of
this Section 3. Upon five (5) business days' notice, the Company shall file any
supplement or post-effective amendment to the Registration Statement with
respect to the plan of distribution or such Holder's ownership interests in
Registrable Shares that is reasonably necessary to permit the sale of the
Holder's Registrable Shares pursuant to the Registration Statement. The Company
shall file any necessary listing applications or amendments to the existing
applications to cause the Shares registered under any Registration Statement to
be then listed or quoted on the primary exchange or quotation system on which
the Common Shares are then listed or quoted.
(g) Notice of SEC Filings, etc. The Company shall promptly notify
each Holder of, and confirm in writing, the filing of the Registration
Statement applicable to the Shares of such Holder or any Prospectus, amendment
or supplement related thereto or any post-effective amendment to such
Registration Statement and the effectiveness of any post-effective amendment.
(h) Notice of Certain Other Events. At any time when a Prospectus
relating to the Registration Statement is required to be delivered under the
Securities Act by a Holder to a transferee, the Company shall immediately
notify each Holder of the happening of any event as
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a result of which the Prospectus included in such Registration Statement, 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
statements therein, in light of the circumstances under which they were made,
not misleading. In such event, the Company shall promptly prepare and furnish
to each Holder a reasonable number of copies of a supplement to or an amendment
of such Prospectus as may be necessary so that, as thereafter delivered to the
purchasers of Registrable Shares, such Prospectus 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. The Company will, if
necessary, amend the Registration Statement of which such Prospectus is a part
to reflect such amendment or supplement.
(i) The Company shall cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing any Shares issued
to the Holders under an Issuance Registration Statement or sold to another
person under a Resale Registration Statement or a Registration Statement filed
under Sections 3(b) or 3(c). The Company shall otherwise use its reasonable
best efforts to comply with all applicable rules and regulations of the SEC.
(j) In the case of an underwritten offering of Registrable Shares
(other than an offering contemplated by Section 3(c)) in which Holders will
offer at least $10 million worth of Shares, the Company shall permit Holders
who hold a majority of all Shares held by the Holders who are participating in
the Offering to select the investment banker(s) and manager(s) who will
administer such offering, subject to the approval of the Company which will not
be unreasonably withheld. In connection with any such underwritten offering,
the Company (upon reasonable advance notice and to the extent not otherwise
disruptive of the Company's operations) will provide such information and make
available appropriate personnel as may reasonably be requested by the Holders
or the managing underwriters, provided, that (i) Company personnel will not be
required to participate in roadshow presentations and (ii) the Company will be
reimbursed by the Holders participating in the offering (who shall be jointly
and severally liable for such reimbursement) for any out of pocket costs and
expenses in connection with such cooperation.
(k) Holder Information. In connection with any Resale or Issuance
Registration Statement or any Registration Statement contemplated under
Sections 3(b) or 3(c), the Company shall deliver to each Holder, at least ten
(10) business days prior to the filing of a Registration Statement, a notice
which sets forth the name and number of Shares proposed to be shown in the
Registration Statement with respect to such Holder, to the extent such Holder
is to be listed in the Registration Statement as a selling stockholder;
provided, that if such Holder provides corrected information for inclusion in
the Registration Statement within four (4) business days after the date the
notice is delivered, the Company shall instead include such corrected
information with respect to such Holder.
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4. State Securities Laws. Subject to the conditions set forth in
this Agreement, the Company shall, in connection with the filing of any
Registration Statement hereunder, file such documents as may be necessary to
register or qualify the Registrable Shares under the securities or "Blue Sky"
laws of such states as any Holder may reasonably request, and the Company shall
use its best efforts to cause such filings to become 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. Once effective, the Company shall use its best efforts to keep such
filings effective until the earlier of (a) such time as all of the Registrable
Shares have been disposed of in accordance with the intended methods of
disposition by the Holder as set forth in the Registration Statement, (b) in
the case of a particular state, a Holder has notified the Company that it no
longer requires an effective filing in such state in accordance with its
original request for filing or (c) the date on which the Registration Statement
ceases to be effective. The Company shall promptly notify each Holder of, and
confirm in writing, the receipt by the Company of any notification with respect
to the suspension of the qualification of the Registrable Shares for sale under
the securities or "Blue Sky" laws of any jurisdiction or the initiation or
threat of any proceeding for such purpose.
5. Expenses. The Company shall bear all Registration Expenses
incurred in connection with the registration of the Registrable Shares pursuant
to this Agreement, except that each Holder 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 sold by it and for any legal, accounting and other
expenses incurred by it and for any expenses to be paid by it in accordance
with Section 3(j).
6. Indemnification by the Company. The Company agrees to
indemnify each of the Holders and their respective officers, directors,
employees, agents, representatives and affiliates, and each person or entity,
if any, that controls a Holder within the meaning of the Securities Act, and
each other person or entity, if any, subject to liability because of his, her
or its connection with a Holder, and any underwriter and any person who
controls the underwriter within the meaning of the Securities Act (each an
"Indemnitee") against any and all losses, claims, damages, actions,
liabilities, costs and expenses (including without limitation reasonable fees,
expenses and disbursements of attorneys and other professionals), joint or
several, arising out of or based upon any violation by the Company of any rule
or regulation promulgated under the Securities Act applicable to the Company
and relating to action or inaction required of the Company in connection with
any Registration Statement or Prospectus, or upon any untrue or alleged untrue
statement of material fact contained in the Registration Statement or any
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;
provided, that the Company shall not be liable to such Indemnitee or any person
who participates as an underwriter in the offering or sale of Registrable
Shares or any other person, if any, who controls such underwriter within the
meaning of the Securities Act, in any such case to the extent that any
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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 or in any such Prospectus in reliance upon and in
conformity with information regarding such Indemnitee or its plan of
distribution or ownership interests which was furnished to the Company for use
in connection with the Registration Statement or the Prospectus contained
therein by such Indemnitee or (ii) such Holder's failure to send or give a copy
of the final, amended or supplemented prospectus furnished to the Holder 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, amended or supplemented prospectus.
7. Covenants of Holders. Each of the Holders hereby agrees (a) to
cooperate with the Company and to furnish to the Company all such information
concerning its plan of distribution and ownership interests with respect to its
Registrable Shares in connection with the preparation of a Registration
Statement with respect to such Holder's Registrable Shares and any filings with
any state securities commissions as the Company may reasonably request, (b) to
deliver or cause delivery of the Prospectus contained in the Registration
Statement (other than an Issuance Registration Statement) to any purchaser of
the shares covered by such Registration Statement from the Holder and (c) to
indemnify the Company, its officers, directors, employees, agents,
representatives and affiliates, and each person, if any, who controls the
Company within the meaning of the Securities Act, and each other person, if
any, subject to liability because of his connection with the Company, 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 such Registration Statement or
the Prospectus contained therein, 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 occurs
from reliance upon and in conformity with written information regarding the
Holder, its plan of distribution or its ownership interests, which was
furnished to the Company by the Holder for use therein unless such statement or
omission was corrected in writing to the Company not less than two (2) business
days prior to the date of the final prospectus (as supplemented or amended, as
the case may be) or (ii) the failure by the Holder to deliver or cause to be
delivered the Prospectus contained in such Registration Statement (as amended
or supplemented, if applicable) furnished by the Company to the Holder to any
purchaser of the shares covered by such Registration Statement from the Holder
through no fault of the Company.
8. 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 a Registration Statement with respect to such Holder's
Registrable Shares or the initiation of any proceedings for that
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purpose. The Company shall use its best efforts to obtain the withdrawal of any
order suspending the effectiveness of such a 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 its best
efforts to cause the Registration Statement and any filings with any state
securities commission to become effective or to amend or supplement the
Registration Statement shall be suspended in the event and during such period
as unforeseen circumstances exist (including without limitation (i) an
underwritten primary offering by the Company if the Company is advised by the
underwriters that the sale of Registrable Shares under the Registration
Statement would impair the pricing or other commercial practicality of the
primary offering or (ii) 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 fide business purpose for
preserving confidentiality or which renders the Company unable to comply with
SEC requirements) (such unforeseen 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 become effective or to amend or
supplement the Registration Statement, but (x) such suspension shall continue
only for so long as such event or its effect is continuing and (y) in no event
will any such suspension exceed ninety (90) days and in no event will such
suspensions in any twelve month period exceed, in the aggregate, one hundred
eighty (180) days. The Company shall notify the Holders of the existence and,
in the case of circumstances referred to in clause (i) of this Section 8(b),
nature of any Suspension Event.
(c) Each Holder of Registrable Shares agrees, if requested by the
Company in the case of a Company-initiated nonunderwritten offering or if
requested by the managing underwriter or underwriters in a Company-initiated
underwritten offering, not to effect any public sale or distribution of any of
the securities of the Company of any class included in such Registration
Statement, including a sale pursuant to Rule 144 or Rule 144A under the
Securities Act (except as part of such Company-initiated registration), during
the 15-day period prior to, and during the 60-day period beginning on, the date
of effectiveness of each Company-initiated offering made pursuant to such
Registration Statement, to the extent timely notified in writing by the Company
or the managing underwriters; provided, however, that such 60-day period shall
be extended by the number of days from and including the date of the giving of
any notice pursuant to Section 3(g) or (h) hereof to and including the date
when each seller of Registrable Shares covered by such Registration Statement
shall have received the copies of the supplemented or amended Prospectus
contemplated by Section 3(h) hereof.
9. Black-Out Period. Either Holder agrees that, following the
effectiveness of any Registration Statement (except an Issuance Registration
Statement) relating to the Registrable Shares of such Holder, such Holder will
not effect any sales of the Registrable Shares pursuant to such Registration
Statement or any filings with any state securities commission at any time after
such Holder has received notice from the Company to suspend sales as a result
of the
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occurrence or existence of any Suspension Event or so that the Company may
correct or update the Registration Statement or such filing (but in no event
will any such Suspension Event exceed ninety (90) days and in no event will all
such Suspension Events in any 12 month period exceed one hundred eighty (180)
days). The Holder may recommence effecting sales of the Shares pursuant to the
Registration Statement or such filings following further notice to such effect
from the Company, which notice shall be given by the Company not later than
five (5) days after the conclusion of any such Suspension Event.
10. 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 Common
Shares of the Company or any Common Shares of the Company owned by any other
shareholder or shareholders of the Company.
11. Contribution. If the indemnification provided for in Sections
6 and 7 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 Indemnitee, 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 Indemnitee, 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 to state a material fact relates to information
supplied by the Company or by the Indemnitee and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission; provided, however, that in no event shall the obligation
of any indemnifying party to contribute under this Section 11 exceed the amount
that such indemnifying party would have been obligated to pay by way of
indemnification if the indemnification provided for under Sections 6 or 7
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 11 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.
Notwithstanding the provisions of this Section 11, no Holder shall be
required to contribute any amount in excess of the amount by which the gross
proceeds from the sale of Shares exceeds the amount of any damages that the
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission. No indemnified party guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall
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be entitled to contribution from any indemnifying party who was not guilty of
such fraudulent misrepresentation.
12. 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 under the Securities Act.
13. Amendments and Waivers. The provisions of this Agreement may
not be amended, modified, or supplemented or waived without the prior written
consent of the Company and Holders holding in excess of two-thirds of the
aggregate of all Registrable Shares then covered by this Agreement, provided,
that no such amendment will be effective against any Holder who has not
consented in writing thereto (i) if such amendment materially and adversely
affects such Holder's rights to such an extent that the benefit intended hereby
(access to public markets for the sale of Registrable Shares) is effectively
eliminated by such amendment or (ii) if such amendment was obtained as a result
of consents given by persons who are affiliates of the Company or persons who
gave such consents contemporaneously with or in contemplation of the
redemption, sale or exchange of Acquired Units. Neither the waiver by any of
the parties hereto of a breach or a default under any of the provisions of this
Agreement, nor the failure of any of the parties, on one or more occasions, to
enforce any of the provisions of this Agreement or to exercise any right or
privilege hereunder shall thereafter be construed as a waiver of any subsequent
breach or default of a similar nature, or as a waiver of any such provisions,
rights or privileges hereunder.
14. 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
telex or telecopier, registered or certified mail (return receipt requested),
postage prepaid or courier or overnight delivery service to the respective
parties 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 3(f)
or Section 7, a Holder must confirm such notice in writing by overnight express
delivery with confirmation of receipt:
If to the Company: Gables Residential Trust
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇, Procter & ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇.▇.
▇▇
▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Holders: As listed on the applicable Holder Signature Page
In addition to the manner of notice permitted above, notices given pursuant to
Sections 3, 8 and 9 hereof may be effected telephonically and confirmed in
writing thereafter in the manner described above.
15. Successors and Assigns. This Agreement shall be binding upon
the parties hereto and their respective successors and assigns and shall inure
to the benefit of the parties hereto and their respective successors and
assigns. This Agreement and the rights granted hereunder may not be assigned by
any Holder without the prior written consent of the Company; provided, however,
that (i) a Holder may assign its rights and obligations hereunder, following at
least ten (10) days prior written notice to the Company, to a permitted
transferee in connection with a transfer of the Partnership Units in accordance
with the terms of the Partnership Agreement, if such transferee agrees in
writing to be bound by all of the provisions hereof and (ii) no Holder shall
Dispose of any Acquired Units to any person that is not an "accredited
investor" under the Securities Act if the Company has a reasonable basis for
objecting to such transfer (except that such prohibition shall not apply to
Dispositions by the Contributor to those persons who are constituent partners
of Contributor as of the date hereof). Any attempted assignment hereof by any
Holder that is not in accordance with the foregoing will be void and of no
effect and shall terminate all obligations of the Company hereunder.
16. 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.
17. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Maryland applicable to
contracts made and to be performed wholly within said State.
18. 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.
19. Entire Agreement. This Agreement is intended by the parties as
a final expression of their agreement and intended to be the complete and
exclusive 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
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forth or referred to herein, with respect to such subject matter. This
Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
20. Specific Performance. The parties hereto acknowledge that the
obligations undertaken by them hereunder are unique and that there would not be
adequate remedy at law if any party fails to perform any of its obligations
hereunder, and accordingly agree that each party, in addition to any other
remedy to which it may be entitled at law or in equity, shall be entitled to
(a) compel specific performance of the obligations, covenants and agreements of
any other party under this Agreement in accordance with the terms and
conditions of this Agreement and (b) obtain preliminary injunctive relief to
secure specific performance and to prevent a breach or contemplated breach of
this Agreement.
21. Time of Essence. Time is of the essence in the performance of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
GABLES RESIDENTIAL TRUST
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
------------------------------
Name:
Title:
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REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
HOLDER SIGNATURE PAGE
Holder:
RIVERCREST PARTNERS II, LTD.,
a Texas limited partnership
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, General Partner
Address for Notice:
c/o Oasis Residential
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇
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