EXHIBIT 10.4
CONTRIBUTION AND MERGER AGREEMENT
by and between
Property Capital Trust Limited Partnership
and
Framingham York Associates Limited Partnership
and
Maryland Property Capital Trust, Inc.
(solely for the purposes of Section 6.04 and Section 6.05)
Dated as of October 16, 1998
TABLE OF CONTENTS
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Page
ARTICLE 1. THE MERGER........................................................... 1
Section 1.01. The Merger................................................... 1
Section 1.02. Exchange of Interests........................................ 1
ARTICLE 2. PARTNERSHIP AGREEMENT................................................ 2
ARTICLE 3. TRANSFER AND CONVEYANCE OF ASSETS AND ASSUMPTION OF LIABILITIES...... 2
Section 3.01. Transfer, Conveyance and Assumption.......................... 2
Section 3.02. Further Assurances........................................... 2
Section 3.03. Closing...................................................... 2
Section 3.04. Documents to be Delivered at Closing......................... 2
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF FYA................................ 3
Section 4.01. Existence and Power.......................................... 3
Section 4.02. Authorization................................................ 3
Section 4.03. Governmental Authorization................................... 3
Section 4.04. Consents and Approvals....................................... 4
Section 4.05. No Violation................................................. 4
Section 4.06. No Brokers................................................... 4
Section 4.07. Litigation................................................... 4
Section 4.08. No Other Agreements to Sell.................................. 4
Section 4.09. Non-Foreign Status........................................... 4
ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF PCT LP............................. 4
Section 5.01. Existence and Power.......................................... 5
Section 5.02. Authorization................................................ 5
Section 5.03. Governmental Authorization................................... 5
Section 5.04. Consents and Approvals....................................... 5
Section 5.05. No Violation................................................. 5
Section 5.06. No Brokers................................................... 5
Section 5.07. Litigation................................................... 5
ARTICLE 6. COVENANTS............................................................ 5
Section 6.01. Conduct of the Business of FYA............................... 5
Section 6.02. Conduct of the Business of PCT LP............................ 6
Section 6.03 No Solicitation.............................................. 7
Section 6.04 Confidentiality.............................................. 7
Section 6.05 Registration of Shares....................................... 7
ARTICLE 7. CONDITIONS TO CLOSING................................................ 7
Section 7.01. Reincorporation Merger....................................... 7
Section 7.02. Consummation of the Investment Agreement..................... 7
Section 7.03 Approval by Partners......................................... 7
Section 7.04. No Violations................................................ 7
(i)
Page
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Section 7.05. Consents..................................................... 7
Section 7.07. Representations and Warranties............................... 8
Section 7.08. No Material Adverse Change................................... 8
ARTICLE 8. TERMINATION.......................................................... 8
Section 8.01. Termination.................................................. 8
Section 8.02. Effect of Termination........................................ 8
ARTICLE 9. MISCELLANEOUS........................................................ 8
Section 9.01. General Partner Authorization................................ 8
Section 9.02. Survival of Representations and Warranties................... 8
Section 9.03. Amendments; No Waivers....................................... 8
Section 9.04. Integration.................................................. 9
Section 9.05. Successors and Assigns....................................... 9
Section 9.06. Governing Law................................................ 9
Section 9.07. Counterparts................................................. 9
Section 9.08. Third Party Beneficiary...................................... 9
Section 9.09. Notices...................................................... 9
Addendum.................................................................... A-1
List of Exhibits
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* Exhibit A Amended and Restated Agreement of Limited Partnership of the
Surviving Partnership
Exhibit B Registration Rights Agreement
____________
* Filed as Exhibit 4.1 to the Registration Statement on form S-4 for Maryland
Property Capital Trust, Inc. filed with the Securities and Exchange
Commission on November 20, 1998.
(ii)
CONTRIBUTION AND MERGER AGREEMENT
This CONTRIBUTION AND MERGER AGREEMENT (including all exhibits, hereinafter
referred to as this "Agreement") dated as of October 16, 1998 is made and
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entered into by and among Property Capital Trust Limited Partnership, a
Massachusetts limited partnership ("PCT LP"), Framingham York Associates Limited
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Partnership, a Massachusetts limited partnership ("FYA") and, solely for the
---
purposes of Section 6.04 and Section 6.05, Maryland Property Capital Trust,
Inc., a Maryland corporation and the sole general partner of PCT LP ("PCT
---
Inc.").
RECITALS
A. PCT LP is a limited partnership of which PCT Inc. is the sole general
partner and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, an individual, is the sole limited partner.
B. PCT LP desires to acquire the properties and other assets, and to
assume all of the liabilities and obligations, of FYA by means of a merger of
PCT LP with and into FYA.
C. The Massachusetts Uniform Limited Partnership Act (the "Massachusetts
-------------
ULPA") authorizes the merger of one or more Massachusetts limited partnerships
----
with and into a Massachusetts limited partnership.
D. FYA and PCT LP now desire to provide the terms and conditions whereby
they would merge (the "Merger"), following which Merger FYA shall be the
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surviving limited partnership.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth and of other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto, intending to be legally
bound hereby, do hereby agree as follows:
ARTICLE 1. THE MERGER
Section 1.01. The Merger.
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(a) On such date as the general partners of FYA (the "FYA General
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Partners") and PCT, Inc., as the general partner of PCT LP (the "PCT LP General
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Partner"), shall determine, after satisfaction or, to the extent permitted
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hereunder, waiver of all conditions to the Merger, PCT LP shall merge with and
into FYA, which shall be the surviving limited partnership, and FYA shall file a
certificate of merger (the "Certificate of Merger") with the Secretary of State
---------------------
of the Commonwealth of Massachusetts and make all other filings or recordings
required by Massachusetts law in connection with the Merger. The Merger shall
become effective at such time as is specified in the Certificate of Merger (the
"Effective Time").
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(b) At the Effective Time, PCT LP shall be merged with and into FYA,
whereupon the separate existence of PCT LP shall cease, and FYA shall be the
surviving limited partnership of the Merger (the "Surviving Partnership") in
---------------------
accordance with Section 16A of the Massachusetts ULPA.
Section 1.02. Exchange of Interests.
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(a) At the Effective Time, each limited partner of PCT LP shall
receive, in exchange for such partner's interest in PCT LP, units of partnership
interest ("Units") in the Surviving Partnership as set forth in the Second
-----
Amended and Restated Limited Partnership Agreement of the Surviving Partnership
(the "Partnership
-----------
Agreement"), which is attached hereto as Exhibit A. Units shall be exchangeable,
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pursuant to the terms of the Partnership Agreement, for shares (the "Shares") of
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common stock, par value $.01 per share (the "Common Stock") of Property Capital
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Trust, Inc., a Maryland corporation and the surviving entity following the
merger of Property Capital Trust, a Massachusetts business with and into
Maryland Property Capital Trust, Inc., a Maryland Corporation ("New PCT").
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(b) At the Effective Time, the sole general partner of PCT LP shall
receive, in exchange for such partner's interest in PCT LP, Units as set forth
in the Partnership Agreement.
(c) At the Effective Time, each partner (as of immediately prior to
the Effective Time) in FYA shall receive Units as set forth in the Partnership
Agreement.
ARTICLE 2. PARTNERSHIP AGREEMENT
The partnership agreement of FYA in effect at the Effective Time shall be
amended and restated in substantially the form attached hereto as Exhibit A
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which agreement shall be the partnership agreement of the Surviving Partnership
unless and until amended in accordance with its terms and applicable law. The
name of the Surviving Partnership shall be "Property Capital Trust Limited
Partnership."
ARTICLE 3. TRANSFER AND CONVEYANCE OF ASSETS AND ASSUMPTION OF LIABILITIES
Section 3.01. Transfer, Conveyance and Assumption. At the Effective
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Time, FYA shall continue in existence as the Surviving Partnership, and, without
further transfer, succeed to and possess all of the rights, privileges and
powers of PCT LP, and all of the assets and property of whatever kind and
character of PCT LP shall vest in FYA without further act or deed; thereafter,
FYA, as the Surviving Partnership, shall be liable for all of the liabilities
and obligations of PCT LP, and any claim or judgment against PCT LP may be
enforced against FYA, as the Surviving Partnership, in accordance with the
Massachusetts ULPA.
Section 3.02. Further Assurances. If at any time FYA shall consider or
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be advised that any further assignment, conveyance or assurance is necessary or
advisable to vest, perfect or confirm of record in the Surviving Partnership the
title to any property or right of PCT LP, or otherwise to carry out the
provisions hereof, the proper representatives of PCT LP, including the general
partner of the PCT LP as of the Effective Time, shall execute and deliver any
and all proper deeds, assignments, and assurances and do all things necessary or
proper to vest, perfect or convey title to such property or right in the
Surviving Partnership, and otherwise to carry out the provisions hereof.
Section 3.03. Closing. The closing (the "Closing") of the Merger
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contemplated by this Agreement shall occur immediately following the closing of
the transactions contemplated by the Investment Agreement dated as June 18, 1998
and amended as of August 7, 1998 and as of the date hereof by and among FYA, PCT
LP and PCT Inc. At or before such Closing, which shall be held at a place and
time determined by FYA in its sole discretion, the PCT LP General Partner and/or
the PCT Limited Partners (or their attorney(s)-in-fact) will execute all closing
documents required by the FYA General Partners in accordance with Section 3.04
and deliver the same to a person designated by the PCT LP General Partner (such
person, the "Closing Agent").
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Section 3.04. Documents to be Delivered at Closing.
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(a) At the Closing, the PCT LP General Partner on behalf of PCT LP
shall execute, acknowledge where deemed desirable or necessary by the FYA
General Partners, and deliver to the Closing Agent, in addition to any other
documents mentioned elsewhere herein, the following:
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(i) If requested by the FYA General Partners, a certified copy of
all appropriate corporate resolutions or partnership actions authorizing the
execution, delivery and performance by PCT LP of this Agreement, all ancillary
agreements, instruments or certificates, if any, and the documents required for
the Closing.
(ii) An affidavit establishing an exemption from the withholding
requirements of the Foreign Investment in Real Property Tax Act ("FIRPTA"), as
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amended. In the event the PCT fails to provide such an affidavit, FYA shall be
entitled to withhold from the consideration otherwise payable and pay to the
Internal Revenue Service the sums required to be withheld pursuant to FIRPTA
(and the amount so withheld shall be paid by FYA to the Internal Revenue
Service, in order for FYA to comply with the provisions of Section 1445 of the
Internal Revenue Code of 1986, as amended (the "Code"), or successor similar
----
legislation, as the same may be amended hereafter).
(iii) Any other documents reasonably necessary to effectuate the
transactions contemplated hereby, including the Merger. Such documents shall
include, without limitation, filings with any applicable governmental
jurisdiction in which FYA is required to file its partnership or limited
liability company documentation.
(b) At the Closing, FYA shall deliver to PCT LP, a certificate either (x)
reaffirming the accuracy of all representations and warranties and the
satisfaction of all covenants made by FYA herein, or (y) if such reaffirmation
cannot be made, identifying those representations and warranties with respect to
which circumstances have changed.
(c) At the Closing, each of the limited partners of FYA shall, directly or
through an Attorney-in-Fact, execute, acknowledge where deemed desirable or
necessary by PCT LP, and deliver to the Closing Agent, in addition to any other
documents mentioned elsewhere herein, an Addendum to Contribution and Merger
Agreement in the form attached hereto.
(d) At the Closing, PCT Inc. shall deliver the Registration Rights
Agreement, as defined in Section 6.05.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF FYA
As a material inducement to PCT LP to enter into this Agreement and to
consummate the transactions contemplated hereby, FYA hereby makes to PCT LP each
of the representations and warranties set forth in this Article 4, which
representations and warranties shall be true as of the date hereof and as of the
Closing.
Section 4.01. Existence and Power. FYA is a limited partnership duly
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formed, validly existing and in good standing under the laws of the Commonwealth
of Massachusetts.
Section 4.02. Authorization. The execution, delivery and performance by
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FYA of this Agreement and the consummation by it of the transactions
contemplated hereby have been duly authorized by all necessary partnership
action, if any, including any consent or other action that is required of the
limited partners of FYA (the "FYA Limited Partners") by the limited partnership
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agreement of FYA. Subject to (i) limitations under applicable law on rights to
indemnification, (ii) the effects of any applicable bankruptcy, reorganization,
moratorium or similar laws, and (iii) general principles of equity, this
Agreement constitutes a valid, binding and enforceable agreement of FYA.
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Section 4.03. Governmental Authorization. To the actual knowledge of
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▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇ as individual General Partners of FYA
("Seller's Knowledge"), the execution, delivery and performance by FYA of this
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Agreement and the consummation by it of the transactions contemplated hereby,
require no action by or in respect of, or filing with, any governmental body,
agency, official or authority other than those obtained or made (or to be made)
prior to the Closing.
Section 4.04. Consents and Approvals. To Seller's Knowledge, no consent,
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waiver, approval or authorization of any third party is required to be obtained
by FYA in connection with the execution, delivery and performance of this
Agreement and the transactions contemplated hereby except any of the foregoing
that shall have been satisfied prior to the Closing.
Section 4.05. No Violation. To Seller's Knowledge, the execution,
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delivery and performance by FYA of this Agreement and the consummation by it of
the transactions contemplated hereby do not and will not (i) violate the limited
partnership agreements of FYA, (ii) violate any provision of any law, rule or
regulation applicable to FYA, (iii) constitute a breach of, or result in a
default under, any existing material obligation of FYA under any provision of
any material agreement, contract or other instrument to which FYA is a party or
by which it or its property, if applicable, is bound, or (iv) constitute a
violation of any court or administrative order, writ, judgment or decree that
names FYA and is specifically directed to it or its property, if applicable.
Section 4.06. No Brokers. FYA has not entered into, nor will it enter
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into, any agreement, arrangement or understanding with any person or firm which
will result in the obligation of the Surviving Partnership to pay any finder's
fee, brokerage commission or similar payment in connection with the transactions
contemplated hereby.
Section 4.07. Litigation. To Seller's Knowledge, there are no actions,
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suits, arbitration, claims, attachments, proceedings, assignments for the
benefit of creditors, insolvency, bankruptcy, reorganization or other
proceedings, actual or proposed, pending or threatened in writing by or against
FYA or either of the FYA General Partners which would materially and adversely
affect FYA, the ownership or operation of its properties, or its ability to
consummate the transactions contemplated hereby. To Seller's Knowledge, there
is no outstanding order, writ, injunction or decree of any court, government,
governmental entity or authority or arbitration against or affecting FYA, which
in any such case would impair its ability to enter into and perform all of its
obligations under this Agreement and the transactions contemplated hereby.
Section 4.08. No Other Agreements to Sell. FYA has not made any
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agreement with, nor will it enter into any agreement with, and it does not have
any obligation (absolute or contingent) to, any other person or firm to sell,
transfer or in any way encumber any of its properties or assets or to enter into
any agreement with respect to a sale, transfer or encumbrance of, or put or call
right with respect to, any of its properties or assets.
Section 4.09. Non-Foreign Status. FYA is not a foreign person, foreign
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corporation, foreign partnership, foreign limited liability company, foreign
trust or foreign estate (as defined in the Code) and, therefore, is not subject
to the provisions of the Code relating to the withholding of sales proceeds to
foreign persons.
ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF PCT LP
As a material inducement to FYA to enter into this Agreement and to
consummate the transactions contemplated hereby, PCT LP hereby makes to FYA each
of the representations and warranties set forth in this Article 5, which
representations and warranties shall be true as of the date hereof and as of the
Closing.
4
Section 5.01. Existence and Power. PCT LP is a limited partnership duly
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formed, validly existing and in good standing under the laws of the Commonwealth
of Massachusetts.
Section 5.02. Authorization. The execution, delivery and performance by
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PCT LP of this Agreement and the consummation by it of the transactions
contemplated hereby have been duly authorized by all necessary partnership
action, if any, including any consent or other action that is required of the
PCT LP Limited Partners. Subject to (i) limitations under applicable law on
rights to indemnification, (ii) the effects of any applicable bankruptcy,
reorganization, moratorium or similar laws, and (iii) general principles of
equity, this Agreement constitutes a valid, binding and enforceable agreement of
PCT LP.
Section 5.03. Governmental Authorization. To the actual knowledge of
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▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ as officers and
representatives of the PCT LP General Partner ("Acquiror's Knowledge"), the
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execution, delivery and performance by PCT LP of this Agreement and the
consummation by it of the transactions contemplated hereby, require no action by
or in respect of, or filing with, any governmental body, agency, official or
authority other than those obtained or made (or to be made) prior to the
Closing.
Section 5.04. Consents and Approvals. To Acquiror's Knowledge, no
----------------------
consent, waiver, approval or authorization of any third party is required to be
obtained by PCT LP in connection with the execution, delivery and performance of
this Agreement and the transactions contemplated hereby except any of the
foregoing that shall have been satisfied prior to the Closing.
Section 5.05. No Violation. To Acquiror's Knowledge, the execution,
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delivery and performance by PCT LP of this Agreement and the consummation by it
of the transactions contemplated hereby do not and will not (i) violate the
limited partnership agreements of PCT LP, (ii) violate any provision of any law,
rule or regulation applicable to PCT LP, (iii) constitute a breach of, or result
in a default under, any existing material obligation of PCT LP under any
provision of any material agreement, contract or other instrument to which PCT
LP is a party or by which it or its property, if applicable, is bound, or (iv)
constitute a violation of any court or administrative order, writ, judgment or
decree that names PCT LP and is specifically directed to it or its property, if
applicable.
Section 5.06. No Brokers. PCT LP has not entered into, nor will it enter
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into, any agreement, arrangement or understanding with any person or firm which
will result in an obligation to pay any finder's fee, brokerage commission or
similar payment in connection with the transactions contemplated hereby.
Section 5.07. Litigation. To Acquiror's Knowledge, there are no actions,
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suits, arbitration, claims, attachments, proceedings, assignments for the
benefit of creditors, insolvency, bankruptcy, reorganization or other
proceedings, actual or proposed, pending or threatened in writing by or against
PCT LP or the PCT LP General Partner which would materially and adversely affect
PCT LP, the ownership or operation of its properties, or its ability to
consummate the transactions contemplated hereby. To Acquiror's Knowledge, there
is no outstanding order, writ, injunction or decree of any court, government,
governmental entity or authority or arbitration against or affecting PCT LP,
which in any such case would impair its ability to enter into and perform all of
its obligations under this Agreement and the transactions contemplated hereby.
ARTICLE 6. COVENANTS
Section 6.01. Conduct of the Business of FYA. FYA covenants and agrees
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that between the Effective Date and the Closing Date, unless PCT LP has
consented in writing to any other act or omission (such consent not to be
unreasonably withheld, conditioned or delayed), FYA shall perform or observe the
following with respect to the real property held by FYA:
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(a) FYA will operate and maintain its real property in the ordinary
course of business and use all commercially reasonable efforts to preserve for
the Surviving Partnership the relationships with tenants, suppliers, managers,
employees and others having on-going relationships with such real property. FYA
will not defer taking any actions or spending any of its funds (including,
without limitation, the expenditures of funds consistent with past practice for
capital improvements on those projects commenced prior to the Effective Date),
or otherwise manage such property differently, due to the transactions
contemplated by this Agreement.
(b) FYA shall comply with all material terms, covenants and conditions
of its management contracts and service contracts.
(c) FYA shall not remove any personal property located in or on its
real property, except as may be required for repair and replacement or discarded
in the ordinary course of business. All replacements shall be free and clear of
liens and encumbrances except to the extent the original personal property was
so encumbered and shall be of quality at least equal to the replaced items.
(d) FYA shall, upon request of the Surviving Partnership at any time
after the Effective Date, assist the Surviving Partnership in its preparation of
audited statements of income and expense and such other documentation as PCT LP
may reasonably request, covering the period of FYA's ownership of its real
property.
(e) FYA will make all required payments within any applicable grace
period under any indebtedness secured by a lien on its real property and will
comply with all material terms, covenants and conditions under any such
indebtedness. FYA will pay all other accounts payable, including trade debt,
when due in accordance with its past business practices.
(f) FYA shall not cause or permit its real property, or any interest
therein, to be alienated, mortgaged, licensed, encumbered or otherwise be
transferred, except as such real property is so encumbered as of the Effective
Date.
(g) FYA will maintain and keep in full force and effect the hazard,
liability and casualty insurance it is currently maintaining with respect to its
real property.
(h) FYA shall promptly give PCT LP written notice of, and promptly
deliver to PCT LP, a true and complete copy of any written notice FYA may
receive, on or before the Closing Date, from any governmental authority
concerning a violation of any applicable legal requirements pertaining to its
real property.
(i) From and after the Effective Date, FYA shall not enter discussions
with, negotiate or contract with any other party for the sale of its real
property or any equity interests in FYA.
Section 6.02. Conduct of the Business of PCT LP. PCT LP covenants and
---------------------------------
agrees that between the Effective Date and the Closing Date, unless FYA has
consented in writing to any other act or omission (such consent not to be
unreasonably withheld, conditioned or delayed), PCT LP shall perform or observe
the following:
(a) PCT LP shall not merge or consolidate with any other person or
entity or otherwise, except pursuant to this Agreement, amend its agreement of
limited partnership.
(b) PCT LP shall continue to qualify as a partnership for federal
income tax purposes.
Section 6.03 No Solicitation. FYA shall not directly or indirectly, enter
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into, solicit, initiate or continue any discussions or negotiations with, or
encourage or respond to any inquiries or proposals by, or
6
participate in any negotiations with, or provide any information to, or
otherwise cooperate in any other way with, any person or entity other than PCT
LP and its respective officers, directors and representatives, concerning any
sale of all or a portion of FYA's assets, or any merger, consolidation,
liquidation, dissolution or similar transaction involving FYA.
Section 6.04 Confidentiality. The parties shall ensure that all
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confidential information which each such party or any of its respective
representatives may now possess or may hereafter create or obtain relating to
the other party, the transactions contemplated hereby or the financial
condition, results of operations, business, properties, assets, liabilities or
future prospects of the other party, shall not be published, disclosed or made
accessible by any of them without the prior written consent of such other party;
provided, however, that the restrictions of this sentence shall not apply: (i)
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to the extent the disclosure may otherwise be required by applicable law, court
process or by obligations pursuant to any listing agreement with any national
securities exchange or (ii) to the extent such information shall have otherwise
become publicly available.
Section 6.05 Registration of Shares. PCT, Inc., the Surviving
----------------------
Partnership and the limited partners of the Surviving Partnership shall enter
into a registration rights agreement (the "Registration Rights Agreement"),
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substantially in the form of Exhibit B, on or prior to the Closing Date.
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ARTICLE 7. CONDITIONS TO CLOSING
The obligations of PCT LP and FYA to consummate the Merger are subject to
the satisfaction of the following conditions as of the Effective Time:
Section 7.01. Reincorporation Merger. The merger of Property Capital
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Trust, a Massachusetts business trust ("Old PCT"), into PCT Inc., contemplated
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by that certain Agreement and Plan of Merger dated as of June 18, 1998 and
amended as of August 7, 1998 and as of the date hereof (the "Reincorporation
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Merger Agreement" and such merger (the "Reincorporation Merger") shall occur
---------------- ----------------------
prior to the Closing.
Section 7.02. Consummation of the Investment Agreement. The
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transactions contemplated by the Investment Agreement dated as of June 18, 1998
and amended as of August 7, 1998 and as of the date hereof by and among Old PCT,
PCT Inc. and the Purchasers (as such term is defined therein) (the "Investment
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Agreement") shall have been consummated.
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Section 7.03 Approval by Partners. The partners of the PCT LP and
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FYA shall have approved this Agreement and the transactions contemplated
hereunder, in each case as required by the terms of the partnership agreement of
such partnership
Section 7.04. No Violations. There shall have been no violations of
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any provisions of any applicable law or regulation and no judgment, injunction,
order or decree shall prohibit the consummation of the Merger.
Section 7.05. Consents. All actions by or in respect of or filings
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with any governmental body, agency, official or authority required to permit the
consummation of the Merger shall have been obtained.
Section 7.07. Representations and Warranties. Each of the
------------------------------
representations and warranties of FYA and PCT LP contained in Articles 4 and 5
shall be true and correct in all material respects and each of FYA and PCT LP
shall have performed all of their respective obligations hereunder which by the
terms hereof are to be performed on or before the Closing.
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Section 7.08. No Material Adverse Change. There shall have been no
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material adverse change in the financial condition, prospects, properties,
assets, liabilities, business or operations of FYA or PCT LP since the date
hereof.
ARTICLE 8. TERMINATION
Section 8.01. Termination. This Agreement may be terminated and the
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Merger may be abandoned at any time prior to the Effective Time:
(a) by mutual written consent of the PCT LP General Partner, on behalf
of PCT LP, and each of the FYA General Partners, on behalf of FYA;
(b) by either the PCT General Partner, on behalf of PCT LP, or the FYA
General Partners, on behalf of FYA, if there shall be any law or regulation that
makes consummation of the Merger illegal or otherwise prohibited, or if any
judgment, injunction, order or decree enjoining PCT LP or FYA from consummating
the Merger is entered and such judgment, injunction, order or decree shall
become final and nonappealable; or
(c) if the Investment Agreement shall have been terminated in
accordance with its terms.
Section 8.02. Effect of Termination. If this Agreement is terminated
---------------------
pursuant to Section 8.01, this Agreement shall become void and of no effect with
no liability on the part of either party hereto.
ARTICLE 9. MISCELLANEOUS
Section 9.01. General Partner Authorization. The general partner of the
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Surviving Partnership shall be authorized, at such time in its sole discretion
as it deems appropriate, to prepare, execute, acknowledge, verify, deliver, file
and record, for and in the name of FYA and, to the extent necessary, the PCT LP
General Partner, the limited partner of PCT LP, the FYA General Partners and the
FYA Limited Partners, any and all documents and instruments including, without
limitation, the Partnership Agreement and the Certificate of Merger and shall do
and perform any and all acts required by applicable law which the general
partner of the Surviving Partnership deems necessary or advisable, in order to
effectuate the Merger.
Section 9.02. Survival of Representations and Warranties. The
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representations and warranties made by FYA and PCT LP herein shall be deemed to
have been relied upon by the PCT LP and FYA, respectively, shall survive the
Closing and shall not merge in the performance hereof; provided, however, that
such representations and warranties shall expire on the one (1) year anniversary
of the Closing.
Section 9.03. Amendments; No Waivers.
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(a) Any provision of this Agreement may be amended or waived prior to
the Effective Time if, and only if, such amendment or waiver is in writing and
signed by the PCT LP General Partner, on behalf of PCT LP, and by the FYA
General Partner, on behalf of FYA.
(b) No failure or delay by any party hereto in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
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Section 9.04. Integration. All prior or contemporaneous agreements,
-----------
contracts, promises, representations, and statements, if any, between FYA and
PCT LP, or their representatives, are merged into this Agreement, and this
Agreement shall constitute the entire understanding between FYA and PCT LP with
respect to the subject matter hereof.
Section 9.05. Successors and Assigns. The provisions of this Agreement
----------------------
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of the other party hereto.
Section 9.06. Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the domestic laws of The Commonwealth of
Massachusetts without giving effect to any choice or conflict of law provision
or rule (whether of the Commonwealth of Massachusetts or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
Commonwealth of Massachusetts.
Section 9.07. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
Section 9.08. Third Party Beneficiary. No provision of this Agreement is
-----------------------
intended, nor shall it be interpreted, to provide or create any third party
beneficiary rights or any other rights of any kind in any customer, affiliate,
stockholder, partner, director, officer or employee of any party hereto or any
other person or entity.
Section 9.09. Notices. Any notice or demand that must or may be given
-------
under this Agreement or by law, to either FYA or PCT LP, shall, except as
otherwise provided, be in writing and shall be deemed to have been given (i)
when physically received by personal delivery (which shall include the confirmed
receipt of a telecopied facsimile transmission), (ii) three business days after
being deposited in the United States certified or registered mail, return
receipt requested, postage prepaid, or (iii) one business day after being
deposited with a nationally known commercial courier service providing next day
delivery service (such as Federal Express); addressed and delivered or
telecopied:
c/o The ▇▇▇▇ Companies
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇, Procter & ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇, P.C.
9
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized representatives as of the day and
year first above written.
FRAMINGHAM YORK ASSOCIATES LIMITED PARTNERSHIP
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇, as General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, as General Partner
PROPERTY CAPITAL TRUST, L.P.
By: Maryland Property Capital Trust, Inc., as
sole General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Secretary
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Sole Limited Partner
Solely for the purposes of Section 6.04 and 6.05:
MARYLAND PROPERTY CAPITAL TRUST, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Secretary
10
ADDENDUM
TO CONTRIBUTION AND MERGER AGREEMENT
This ADDENDUM TO CONTRIBUTION AND MERGER AGREEMENT ("Addendum") is
--------
entered into as of ____ ____, 1998 by and among ________________________ (the
"Contributing Partner"), and Property Capital Trust Limited Partnership, a
---------------------
Massachusetts limited partnership ("PCT LP" or the "Acquiring Partnership").
------ ---------------------
WHEREAS, the Acquiring Partnership and Framingham York Associates
Limited Partnership, a Massachusetts limited partnership ("FYA") have entered
---
into a Contribution and Merger Agreement dated October 7, 1998 (the "Agreement")
---------
pursuant to which the Acquiring Partnership has agreed to merge into FYA; and
WHEREAS, the Contributing Partner is one of the partners of FYA and
desires to enter into this Addendum for the purpose of consenting to and
otherwise facilitating the consummation of the transactions contemplated by the
Agreement.
NOW, THEREFORE, in consideration of the foregoing, of the covenants,
promises and undertakings set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. All capitalized terms contained herein, unless otherwise defined
herein, shall have the meanings ascribed to them in the Agreement.
2. By its signature hereto, the Contributing Partner hereby agrees
to be bound by the terms and conditions of the Agreement with the same force and
effect as if he, she or it were an original signatory thereto.
3. In order to induce the Acquiring Partnership to enter into this
Addendum and to perform its respective obligations hereunder and pursuant to the
Agreement, the Contributing Partner hereby warrants and represents with respect
to itself and with respect to FYA, the following:
A. Representations and Warranties of FYA. To the knowledge of
-------------------------------------
the Contributing Partner, all representations and warranties of FYA in Article 4
of the Agreement are true and correct in all material respects.
B. Title to Partnership Interest. The Contributing Partner owns
-----------------------------
beneficially and of record, free and clear of any voting agreement, option,
charge, security interest, mortgage, deed of trust, encumbrance, rights of
assignment or purchase rights (collectively "Encumbrances") its partnership
------------
interest in FYA.
C. No Agreements to Sell. The Contributing Partner has not made
---------------------
any agreement with, and does not have any obligation (absolute or contingent)
to, any other person or firm to sell, transfer or in any way encumber its
partnership interest in FYA or to not sell such partnership interests, or to
enter into any agreement with respect to a sale, transfer or encumbrance of, or
put or call right with respect to, such partnership interest.
D. Legend. The Contributing Partner hereby acknowledges that
------
the interests in the Surviving Partnership (the "Equity Securities") to be
-----------------
acquired by the Contributing Partner upon consummation of the Merger are being
issued and sold in a transaction not involving any public offering within the
meaning of the Securities Act of 1933, as amended (the "Securities Act"), and
--------------
that the Equity Securities have not been registered
11
under the Securities Act. Without prejudice to the Contributing Partner's right
at all times to sell or otherwise dispose of all or any part of the Equity
Securities pursuant to an effective registration statement under the Securities
Act or under an exemption from registration available under the Securities Act,
the Contributing Partner hereby agrees not to offer, sell, transfer or otherwise
dispose of any of the Equity Securities it is issued pursuant to the
Contribution Agreement in the absence of registration unless the Contributing
Partner delivers to the Company and the Surviving Partnership an opinion of a
lawyer experienced in securities matters and reasonably satisfactory to the
Surviving Partnership, in form and substance reasonably satisfactory to the
Surviving Partnership, to the effect that the proposed sale, transfer or other
disposition may be effected without registration under the Securities Act and
under applicable state securities or "blue sky" laws. The Contributing Partner
hereby further acknowledges that any certificate representing the Equity
Securities shall bear a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT MAY NOT
BE TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE
DISPOSED OF EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR (B) IF THE COMPANY HAS BEEN FURNISHED WITH A SATISFACTORY OPINION
OF COUNSEL FOR THE HOLDER THAT SUCH TRANSFER, SALE, ASSIGNMENT,
PLEDGE, HYPOTHECATION OR OTHER DISPOSITION IS EXEMPT FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT AND THE RULES AND
REGULATIONS THEREUNDER AND UNDER APPLICABLE STATE SECURITIES OR "BLUE
SKY LAWS."
E. Accredited Investor; Investment Intent. The Contributing Partner
--------------------------------------
is an "accredited investor" as defined in Regulation D promulgated under the
Securities Act. Any Equity Securities acquired by the Contributing Partner will
be so acquired for the Contributing Partner's own account for investment only
and not with a view to, or with any intention of, a distribution or resale
thereof, in whole or in part, in violation of the Securities Act or state
securities or "blue sky", laws without prejudice to the Contributing Partner's
right at all times (subject to the terms hereof and of the agreement of limited
partnership of the Surviving Partnership) to sell or otherwise dispose of all or
any part of the Equity Securities pursuant to an effective registration
statement under the Securities Act or under an exemption from registration
available under the Securities Act.
F. Transfers. The Contributing Partner agrees that (i) for one (1)
---------
year from the Closing Date he, she or it will not, without the consent of the
Surviving Partnership, offer, pledge, sell, contract to sell, grant any option
for the sale of, seek the redemption of or otherwise transfer or dispose of,
directly or indirectly, any Equity Securities (the "Lock-Up Period") and (ii)
--------------
after the Lock-Up Period he, she or it will only transfer the Equity Securities
to persons or entities that make representations to the Transferee of the type
set forth in Sections 3(r) and 3(s) hereof, and otherwise so as to cause no
violation of applicable federal and state securities laws by the Surviving
Partnership, and no transfer in contravention of such agreement shall be
recognized by the Surviving Partnership.
G. Non-Foreign Status. The Contributing Partner is not a foreign
------------------
person, foreign corporation, foreign partnership, foreign limited liability
company, foreign trust or foreign estate (as defined in the Internal Revenue
Code of 1986, as amended (the "Code")) and, therefore, the Contributing Partner
----
is not subject to the provisions of the Code relating to the withholding of
sales proceeds to foreign persons.
12
4. Waiver of Rights; Consents with Respect to the Partnership Interest.
-------------------------------------------------------------------
The Contributing Partner acknowledges that the agreements contained in and
the transactions contemplated by the Agreement and any actions taken by the FYA
General Partner in contemplation of the transactions contemplated thereby may
conflict with, and may not have been contemplated by (i) the limited partnership
agreement and other organizational documents of FYA, or (ii) other agreements
among the Contributing Partner and other holders of partnership interests in
FYA. The Contributing Partner expressly gives all Consents (and any consents
necessary to authorize the proper parties in interest to give all Consents) and
Waivers necessary or desirable to facilitate any Conveyance Action relating to
such entity (as each such capitalized term is hereinafter defined).
As used herein, the term "Conveyance Action" means, with respect to FYA,
-----------------
(i) the conveyance or agreement to convey by any holder of an interest therein
of its direct or indirect interest in such entity to the Surviving Partnership
in connection with the transactions contemplated by the Agreement, or (ii) the
entering into by any such holder of any agreement relating to (x) the
transactions contemplated by the Agreement, including the Merger, (y) the direct
or indirect acquisition by the Acquiring Partnership of any such direct or
indirect interest, or (z) all other transactions relating thereto, or (iii) the
taking by any such holder of any action necessary or desirable to facilitate any
of the foregoing, including, without limitation, the following (provided that
--------
the same are taken in furtherance of the foregoing): any sale or distribution
to any person of a direct or indirect interest in such entity, the entering into
any agreement with any person that grants to such person the right to purchase a
direct or indirect interest in such entity, and the giving of the Consents and
Waivers contained in this Section 4 or consents or waivers similar thereto in
form or purpose. As used herein, the term "Consents" means, with respect to
--------
FYA, any consent necessary or desirable under the limited partnership agreement
and other organizational documents of FYA or any other agreement among all or
any of the holders of interests therein or any other agreement relating thereto
or referred to therein (x) to permit any and all Conveyance Actions or to amend
such organizational documents and/or other agreements so that no provision
thereof prohibits, restricts, impairs or interferes with any Conveyance Action
(such amendments to include, without limitation, the deletion of provisions
which cause a default under such agreement if interests therein are transferred
for cash or for property or in violation of notice, rights-of-first refusal or
other provisions), (y) to admit any person as an additional or substitute
partner upon the Acquiring partnership's acquisition of FYA and to adopt all
such amendments as may be necessary or desirable to effect such admission, and
(z) to continue any entity following the transfer of interests therein to any
other entity. As used herein, the term "Waivers" means, with respect to FYA, the
-------
waiving of any and all rights that the Contributing Partner may have with
respect to, and (to the extent possible) that any other person may have with
respect to, or that may accrue to the Contributing Partner or other person upon
the occurrence of, a Conveyance Action, including, but not limited to, the
following rights: rights of notice, rights to response periods, rights to
purchase the direct or indirect interests of another holder of or interests in
such entity or to sell the Contributing Partner's or other person's direct or
indirect interest therein to another holder of or interests in, rights to sell
the Contributing Partner's or other person's direct or indirect interest therein
at a price other than as provided herein, or rights to prohibit, limit,
invalidate, otherwise restrict or impair any such Conveyance Action or to cause
a termination or dissolution of such entity because of such Conveyance Action.
The Waivers and Consents contained in this Section 4 shall terminate in the
event of and upon the termination of the Agreement.
5. Power of Attorney.
-----------------
The Contributing Partner hereby irrevocably appoints ▇▇▇▇▇ ▇. ▇▇▇▇ or
▇▇▇▇▇▇ ▇. ▇▇▇▇ or any substitute designated by such person or successor thereof
from time to time (such persons or any such substitute or successor acting in
the capacity of Attorney-in-Fact pursuant to this Section 5, the "Attorney-in-
-----------
Fact"), as the true and lawful Attorney-in-Fact and agent of the Contributing
----
Partner, with the power to act in the name, place and stead of the Contributing
Partner to make, execute, acknowledge and deliver all such other contracts,
orders, receipts,
13
notices, requests, instructions, certificates, consents, letters and other
writings (including without limitation the documents to be executed in
connection with the Closing, instruments relating to Conveyance Actions, limited
partnership agreements of the Acquiring Partnership, any other documents
relating to the acquisition by the Acquiring Partnership of FYA, and any
consents and waivers given or contemplated by or in furtherance of this Addendum
or the Agreement) and, in general, to do all things and to take all action which
the Attorney-in-Fact in its sole discretion may consider necessary or proper in
connection with or to carry out the transactions contemplated by this Addendum
or the Agreement, and any other documents to be executed in connection with the
Closing as fully as could the Contributing Partner if personally present and
acting.
The Power of Attorney granted by the Contributing Partner pursuant to this
Section 5 and all authority conferred hereby is granted and conferred subject to
and in consideration of the interests of the Acquiring Partnership and is for
the purpose of completing the transactions contemplated by the Agreement. The
Power of Attorney granted by this Section 5 and all authority conferred hereby
is coupled with an interest and therefore shall be irrevocable and shall not be
terminated by any act of the Contributing Partner or by operation of law,
whether by the death, disability, incapacity or liquidation of the Grantor or by
the occurrence of any other event or events (including without limitation the
termination of any trust or estate for which the Contributing Partner is acting
as a fiduciary or fiduciaries), and if, after the execution hereof, the
Contributing Partner shall die or become disabled or incapacitated or is
liquidated, or if any other such event or events shall occur before the
completion of the transactions contemplated by the Agreement, the Attorney-in-
Fact shall nevertheless be authorized and directed to complete all such
transactions as if such death, disability, incapacity, liquidation or other
event or events had not occurred and regardless of notice thereof. The
Contributing Partner acknowledges that the Attorney-in-Fact named in the first
paragraph of this Section 5 have, and any substitute or successor thereof acting
as Attorney-in-Fact may have, an economic interest in the transactions
contemplated by the Agreement. The Contributing Partner agrees that, at the
request of the Acquiring Partnership, it will promptly execute a separate Power
of Attorney on the same terms set forth in this Section 5, such execution to be
witnessed and notarized if so requested by an Attorney-in-Fact.
It is understood that the Attorney-in-Fact assumes no responsibility or
liability to any person by virtue of the Power of Attorney granted by the
Contributing Partner hereby. The Attorney-in-Fact makes no representations with
respect to and shall have no responsibility for the Merger and shall not be
liable for any error of judgment or for any act done or omitted or for any
mistake of fact or law except for his own gross negligence or willful
misconduct. The Contributing Partner agrees to indemnify the Attorney-in-Fact
for and to hold the Attorney-in-Fact harmless against any loss, claim, damage or
liability incurred on his part arising out of or in connection with it acting as
the Attorney-in-Fact under the Power of Attorney created by the Contributing
Partner hereby, as well as the cost and expense of investigating and defending
against any such loss, claim, damage or liability, except to the extent such
loss, claim, damage or liability is due to the gross negligence or willful
misconduct of the Attorney-in-Fact. The Contributing Partner agrees that an
Attorney-in-Fact may consult with counsel of his own choice (who may be counsel
for FYA or the Acquiring Partnership) and he shall have full and complete
authorization and protection for any action taken or suffered by him hereunder
in good faith and in accordance with the advice of such counsel.
The Contributing Partner does hereby ratify and confirm all that the
Attorney-in-Fact shall lawfully do or cause to be done by virtue of the exercise
of the powers granted unto him by such Contributing Partner under this Section
5, and such Contributing Partner authorizes the reliance of third parties on
this Power of Attorney and waives his, her or its rights, if any, as against any
such third party for its reliance hereon.
14
IN WITNESS WHEREOF, the parties have entered into this Addendum to the
Contribution and Merger Agreement as of the date and year first written above.
[SIGNATURE BLOCKS TO COME]
FORM OF AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP OF THE SURVIVING PARTNERSHIP
For a copy of the Form of Amended and Restated Agreement of Limited
Partnership of the Surviving Partnership see Exhibit 4.1 to the Registration
Statement on Form S-4 for Maryland Property Capital Trust, Inc. filed with the
Securities and Exchange Commission on November 20, 1998
Exhibit B to Contribution and Merger Agreement
----------------------------------------------
FORM OF
REGISTRATION RIGHTS AGREEMENT
(Shares issued upon redemption of OP units)
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is entered into as of
---------
____________, 1998 by and among Maryland Property Capital Trust, Inc., a
Maryland corporation (the "Company"), and the Holders (as hereinafter defined).
-------
This Agreement is made pursuant to a certain Contribution and Merger
Agreement (the "Contribution Agreement") dated October __, 1998 by and among
----------------------
Property Capital Trust Limited Partnership, a Massachusetts limited partnership,
and Framingham York Associates Limited Partnership, a Massachusetts limited
partnership (the "Operating Partnership"), and, solely for purposes of Section
---------------------
6.04 and Section 6.05 of the Contribution Agreement, the Company. Pursuant to
the Contribution Agreement, the Operating Partnership, which shall have changed
its name to "Property Capital Trust Limited Partnership," shall issue to the
Holders on the date hereof (the "Closing Date") common units of limited
------------
partnership interest ("Units") in the Operating Partnership, which may be
-----
redeemed for shares of the Company's common stock, $.01 par value (the "Common
------
Stock"), upon the terms and provisions set forth in the Agreement of Limited
-----
Partnership for the Operating Partnership, as the same may be amended and
restated from time to time (the "Partnership Agreement"). The execution of this
---------------------
Agreement is a condition to the closing of the transactions contemplated by the
Contribution Agreement.
NOW, THEREFORE, in consideration of 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, the following capitalized defined terms shall
have the following meanings:
"Holder" or "Holders" means any holder of outstanding Registrable
------ -------
Securities (i) who is identified on the signature pages attached hereto or (ii)
a Person to which the registration rights provided for in this Agreement shall
have been properly assigned or otherwise transferred in accordance with Section
13 hereof.
"Person" means a natural person, partnership (whether general or limited),
------
trust, estate, association, corporation, limited liability company,
unincorporated organization, custodian, nominee or any other individual or
entity in its own or representative capacity.
"Prospectus" means 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 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" means shares of Common Stock issued or to be issued to
------------------
the Holder upon redemption of, or in exchange for, their Units in accordance
with the Partnership Agreement, excluding (A) Common Stock for which a
Registration Statement relating to the sale thereof shall have been declared
effective under the Securities Act of 1933, as amended (the "Securities Act"),
--------------
and which have been disposed of under such Registration Statement, (B) Common
Stock sold pursuant to Rule 144 (or any successor provision) under the
Securities Act or (C) Common Stock eligible for sale pursuant to Rule 144(k) (or
any successor provision) under the Securities Act.
"Registration Expenses" means any and all expenses incident to performance
---------------------
of or compliance with this Agreement, including, without limitation: (i) all
SEC, stock exchange or National Association of Securities Dealers, Inc. ("NASD")
----
registration or 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 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 the Registrable
Shares on any securities exchange or exchanges pursuant to Section 3(i) hereof,
and (v) the fees and disbursements of counsel for the Company and 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 disbursement of counsel
representing the selling Holder, and stamp, transfer, sales and similar 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" means any registration statement of the Company
----------------------
which covers the issuance or resale, as applicable, of any Registrable Shares on
an appropriate form under Rule 415 promulgated under the Securities Act, or any
similar rule that may be adopted by the SEC, 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.
2. REGISTRATION.
------------
(a) Demand Registration. (i) Subject to the conditions set forth in this
-------------------
Agreement, after the later to occur of (i) the 30th day following the date on
which the Company becomes eligible to file a Registration Statement on Form S-3
or a similar "short form" registration statement or (ii) the first anniversary
of the date hereof, while Registrable Shares or the Units issued on the Closing
Date are outstanding, any Holder or Holders of at least one-quarter ( 1/4) of
the Units issued on the Closing Date may request, in connection with the
redemption of such Units for Common Stock pursuant to and in accordance with the
Partnership Agreement, that the Company cause to be filed a Registration
Statement providing for the sale by such Holders of all or part of such Holders'
Registrable Shares in the manner specified in such request, including an
underwritten offering in accordance with the terms hereof (each a "Demand
------
Registration"). Within ten (10) days after receipt of a request for a Demand
------------
Registration, the Company shall promptly give written notice of such proposed
registration to all other Holders. Such Holders shall have the right, by giving
written notice to the Company within fifteen (15) days after such notice
referred to in the preceding sentence has been given by the Company to elect to
have included in the Registration Statement pursuant to a Demand Registration
such of their Registrable Shares as each Holder may request in such notice of
election. Thereupon, the Company shall use all commercially reasonable efforts
to cause such Registration Statement to be declared effective by the Securities
and Exchange Commission (the "SEC") for all Registrable Shares which the Company
---
has been requested to register no later than ninety (90) days following the
expiration of such fifteen (15) day period. The Company agrees to use all
commercially reasonable efforts to keep the Registration Statement pursuant to a
Demand Registration continuously effective until the earliest of (a) the date on
which the Holders no longer hold any Registrable Shares registered under such
Registration Statement, (b) the date on which the Registrable Shares are
eligible for sale by the Holders pursuant to Rule 144(k) (or any successor
provision) promulgated under the Securities Act or (c) the date which is six (6)
months from the
effective date of such Registration Statement; provided, however, that such six
(6) month period shall be tolled during the period the Holders' disposition of
Registrable Shares pursuant to a Demand Registration is suspended because of an
event described in Section 3(b). The Company shall not be obligated under this
Section 2(b): (i) to effect more than one Demand Registration in any twelve-
month period, (ii) to effect more than three Demand Registrations, in the
aggregate, on behalf of the Holders.
(ii) If the method of disposition specified by the Holder or Holders
requesting a Demand Registration shall be an underwritten public offering, the
Company may designate the managing underwriter of such offering, subject to the
approval of such Holder or Holders which approval shall not be unreasonably
withheld, delayed or conditioned and shall, in connection therewith, (i) enter
into agreements customary in connection therewith (including an underwriting
agreement in customary form) and reasonably acceptable to the Company, (ii)
promptly make available to the Holder or Holders all financial and other records
as shall be reasonably necessary to enable them to exercise their due diligence
responsibilities, (iii) furnish to each Holder and each underwriter, if any, a
signed counterpart, addressed to such Holder or underwriter of (A) an opinion or
opinions of counsel to the Company and (B) a cold comfort letter or letters from
the Company's independent public accountants and (iv) incorporate in a
Prospectus supplement or post effective amendment such information as such
managing underwriter or underwriters requests. If the managing underwriters
advise the Company in writing that in their opinion the number of Registrable
Shares requested to be included in such offering exceeds the maximum number
which can be included in such offering (1) at a price reasonably related to the
then current market value of the Company's Common Stock or (2) without adversely
affecting the marketability of the offering (the "Maximum Number"), then the
--------------
Company will limit the number of Registrable Shares included in such offering to
the Maximum Number, and the Registrable Shares offered shall be selected in the
following order of priority (A) first, the Registrable Shares, if any, to be
offered for the account of the Holders (including the Holder or Holders making
the Demand Registration); provided, however, that such number of Registrable
-------- -------
Shares shall be reduced pro-rata on the basis of relative number of any
Registrable Shares requested by each such Holder to be included in such
registration to the extent necessary to reduce the total number of securities of
the Holders offered to the Maximum Amount and (B) second, the securities the
Company proposes to sell pursuant to Section 7.
(b) Registration Statement Covering Issuance of Common Stock. In lieu of
--------------------------------------------------------
the registration rights set forth in Section 2(a) above, the Company may, in its
sole discretion, prior to the first date upon which the Units held by the
Holders may be redeemed pursuant to the Partnership Agreement (or such other
date as may be required under applicable provisions of the Securities Act) file
a Registration Statement relating to the issuance to Holders of shares of Common
Stock upon the redemption or in exchange for their Units. Thereupon, the
Company shall use all commercially reasonable efforts to cause such Registration
Statement to be declared effective by the SEC for all shares of Common Stock
covered thereby. The Company agrees to use all commercially reasonable efforts
to keep such Registration Statement continuously effective until the earlier to
occur of (i) the date which is the 10th anniversary of the date hereof and (ii)
date on which each Holder has redeemed or exchanged all of such Holder's Units
for Common Stock. In the event that the Company is unable to cause such
Registration Statement to be declared effective by the SEC or is unable to keep
such Registration Statement effective until the earlier of the dates specified
in clause (i) and (ii) in the immediately preceding sentence, then the rights of
each Holder set forth in Sections 2(a) and (b) above shall be restored.
(c) Notwithstanding any thing to the contrary set forth herein, no Holder
shall have any rights under this Section 2 to request the Company, and the
Company shall have no obligation, to use all commercially reasonable efforts to
cause a Registration Statement to be declared effective by the SEC at any time
after the Common Stock issued to such Holder is (A) sold pursuant to Rule 144
(or any successor provision) under the Securities Act or (B) is eligible for
sale pursuant to Rule 144(K) or any successor provision under the Securities
Act.
(d) If after a Demand Registration Statement has been declared effective,
the offering of Registrable Shares pursuant to such Demand Registration
Statement is interfered with by any stop order, injunction or other order or
requirement of the SEC or any other governmental agency or court, such Demand
Registration Statement will be deemed not to have become effective during the
period of such interference until the offering of Registrable Shares pursuant to
such Demand Registration Statement may legally resume.
(e) In the event that the Company shall default in its obligation to file a
Registration Statement within the time period specified in Section 2(a) other
than as a result of any act or omission of a Holder and a Holder shall be
required to undertake any steps to cause the Company to comply with this
Agreement with respect thereto following such default, the Company shall
promptly reimburse such Holder for all reasonable out-of-pocket costs
(including, without limitation, all reasonable attorneys' fees and expenses)
incurred by such Holder in connection with the enforcement of the Company's
obligation to so file (including the reasonable out-of-pocket costs of legal and
other professional advice preparatory to such enforcement).
3. REGISTRATION PROCEDURE.
----------------------
Whenever required under Section 2 to use all commercially reasonable
efforts to effect the registration of any Registrable Shares, the Company shall,
to the extent applicable:
(a) subject to the last five sentences of Section 3(b), prepare and file
with the SEC a Registration Statement with respect to such Registrable Shares
and use all commercially reasonable efforts to cause such Registration Statement
to become and remain effective for the applicable period as provided in Section
2.
(b) subject to the last five sentences of this Section 3(b), 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 disposition of all the
Registrable Shares throughout the applicable period. Notwithstanding anything to
the contrary contained herein, the Company shall not be required to take any of
the actions described in the previous sentence, in Section 3(a), 3(d) or Section
3(g) to the extent that (i) in the reasonable opinion of the Company (A)
securities laws applicable to such sale would require the Company to disclose
material non-public information ("Non-Public Information") and (B) the
---------- -----------
disclosure of such Non-Public Information would materially adversely affect the
Company; (ii) such sale would occur during the measurement period for
determining the amount of Common Stock in connection with the acquisition of a
business or assets by the Company (the "Measurement Period"); or (iii) the
------------------
Company is contemplating an underwritten or non-underwritten public offering of
its securities and in the reasonable opinion of the underwriters (or the
Company, in the case of a non-underwritten public offering) such sale would
interfere materially with such public offering by the Company (a "Financing
---------
Period"); and in the event of (i), (ii) or (iii) the Company simultaneously
------
delivers written notice to the Holders to the effect that the Holders may not
make offers or sales under the applicable Registration Statement for a period
not to exceed sixty (60) days from the date of such notice; provided, however,
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that the Company may only deliver two such notices within any twelve-month
period and shall not deliver such notices consecutively in any twelve-month
period. In the event the sale by the Holders is suspended because of the
existence of Non-Public Information, the Company will notify the Holders
promptly upon such Non-Public Information being included by the Company in a
filing with the SEC, being otherwise disclosed to the public (other than through
the action of any Holder), or ceasing to be material to the Company, and upon
such notice being given by the Company, the Holders shall again, subject to the
last paragraph of this Section 3, be entitled to sell Registrable Shares as
provided herein. In the event the sale by the Holders is suspended because it
is proposed to be made during the Measurement Period or the Financing Period, as
applicable, the Company shall specify, in notifying the Holders of the
suspension of the sale, when the Measurement Period or Financing Period, as
applicable, will end, at which time the Holders shall again, subject to the last
paragraph of this Section 3, be
entitled to sell Registrable Shares as provided herein. If the Measurement
Period or the Financing Period, as applicable, is thereafter changed (but in no
event to a date after the applicable sixty (60) day period), the Company will
promptly notify the Holders of such change and upon the end of the Measurement
Period or Financing Period as so changed, the Holders shall again, subject to
the last paragraph of this Section 3, be entitled to sell Registrable Shares as
provided herein. If an agreement to which such Measurement Period or Financing
Period, as applicable, relates is terminated prior to the end of the Measurement
Period or Financing Period, as applicable, the suspension period hereunder shall
end immediately and the Company shall promptly notify the Holders of the end of
the suspension period.
(c) furnish to the Holders such numbers of copies of the Registration
Statement and Prospectus included therein in conformity with the requirements of
the Securities Act and such other documents and information as they may
reasonably request.
(d) use all commercially reasonable efforts to register or qualify, and
maintain the registration and qualification of, the Registrable Shares covered
by such Registration Statement under such other securities or "blue sky" laws of
such jurisdictions within the United States and its territories as shall be
reasonably appropriate for the distribution of the Registrable Shares covered by
a Registration Statement; provided, however, that the Company shall not be
-------- -------
required in connection therewith or as a condition thereto to qualify to do
business in or to file a general consent to service of process in any
jurisdiction wherein it would not but for the requirements of this paragraph (d)
be obligated to do so; and provided further, that the Company shall not be
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required to subject itself to taxation in any jurisdiction or to qualify such
Registrable Shares in any jurisdiction in which the securities regulatory
authority requires that any Holder submit any of its Registrable Shares to the
terms, provisions and restrictions of any escrow, lockup or similar agreement(s)
for consent to sell Registrable Shares in such jurisdiction unless such Holder
agrees to do so.
(e) promptly notify each Holder for whom Registrable Shares are covered by
the applicable Registration Statement, and confirm in writing (i) when the
Registration Statement and any post-effective amendments thereto have become
effective, (ii) when any amendment or supplement to the Prospectus contained in
such Registration Statement has been filed with the SEC, (iii) of the issuance
by the SEC of any stop order suspending the effectiveness of such Registration
Statement or the initiation of any proceedings for that purpose, or the
suspension of any qualification under "blue sky" laws, (iv) at any time when a
Prospectus relating to such Registration Statement is required to be delivered
under the Securities Act, of the happening of an event as 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 not
misleading in light of the circumstances under which they were made.
(f) use all commercially reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the earliest
possible moment.
(g) subject to the last five sentences of Section 3(b), upon the occurrence
of any event contemplated by clause (iv) of Section 3(e), use all commercially
reasonable efforts promptly to prepare and file an amendment or a supplement to
the Prospectus contained in the applicable Registration Statement or any
document incorporated in such Prospectus by reference or prepare, file and
obtain effectiveness of a post-effective amendment to such Registration
Statement, or file any other required document, in any case to the extent
necessary so that, as thereafter delivered to the purchasers of such 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 not misleading in light of the circumstances under
which they were made.
(h) otherwise use all commercially reasonable efforts to comply with all
applicable rules and regulations of the SEC.
(i) use all commercially reasonable efforts to list the Registrable Shares
covered by a Registration Statement with any securities exchange on which the
Common Stock of the Company is then listed.
(j) If the Company shall hereafter enter into any registration rights or
similar agreement which grants any holder of Common Stock liquidated damages or
similar penalties for failure of the Company to file a registration statement
and/or cause a registration statement to become or remain effective with respect
to such Common Stock, the Holders hereunder shall be entitle to comparable and
proportionate rights and penalties (taking into account the relative number of
shares of Common Stock) with respect to Registrable Shares then outstanding
hereunder.
In connection with and as a condition to the Company's obligations with
respect to any Registration Statements required to be filed pursuant to Section
2 and this Section 3, each Holder agrees that (i) it will not offer or sell its
Registrable Shares under any Registration Statement until it has received copies
of the Prospectus as then supplemented or amended as contemplated by Section
3(c) and receives notice from the Company that the Registration Statement and
any post-effective amendment thereto have become effective as contemplated in
Section 3(e), (ii) upon receipt of any notice from the Company contemplated by
Section 3(e)(iii), such Holder will forthwith discontinue disposition of the
Registrable Shares pursuant to the applicable Registration Statement until the
Company obtains the withdrawal of any order suspending the effectiveness of such
Registration Statement, (iii) upon receipt of any notice from the Company
contemplated by Section 3(b), such Holder will forthwith discontinue disposition
of the Registrable Shares pursuant to the applicable Registration Statement
until (a) the expiration of the Measurement Period or Financing Period, as
applicable, or the receipt of a notice from the Company that the Non-Public
Information has been included in a filing with the SEC or has otherwise been
disclosed to the public or has ceased to be material to the Company as provided
in Section 3(b) and (b) if applicable, the Holder receives copies of the
supplemented or amended Prospectus contemplated by Section 3(g) and receives
notice that any post-effective amendment has become effective, and (iv) upon
receipt of any notice from the Company contemplated by Section 3(e)(iv) (in
respect of the occurrence of an event contemplated therein), such Holder will
forthwith discontinue disposition of the Registrable Shares pursuant to the
applicable Registration Statement until such Holder receives copies of the
supplemented or amended Prospectus contemplated by Section 3(g) and receives
notice that any post-effective amendment has become effective, and in the case
of clause (iii) and (iv) of this paragraph, if so directed by the Company, such
Holder will deliver to the Company all copies in its possession, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Shares current at the time of receipt of such notice.
4. 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 relating and taxes of any kind (including, without limitation,
stamp, transfer, sales and similar taxes) with respect to the sale, disposition
or transfer of Registrable Shares sold by it and for any legal, accounting and
other expenses incurred by it.
5. INDEMNIFICATION BY THE COMPANY.
------------------------------
(a) The Company agrees to indemnify each of the Holders, their respective
officers, directors, employees, agents, representatives and affiliates, each
other Person who participates as an underwriter in the offer or sale of
Registrable Shares, and each Person, if any, that controls a Holder or any such
underwriter within the meaning of the Securities Act against any and all losses,
claims, damages, actions,
liabilities, costs and expenses (including without limitation reasonable
attorneys' fees, expenses and disbursements documented in writing), joint or
several, to which they may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages, liabilities, (or actions or proceeding
in respect thereof) costs or expenses arise out of or are based upon any untrue
or alleged untrue statement of material fact contained in any Registration
Statement on the effective date thereof or any 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; provided, however,
-------- -------
that the indemnity agreement contained in this Section 5(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Company, provided
--------
further that the Company shall not be liable to any Holder, such Holder's
-------
directors, officers, employees, agents, representatives and affiliates or
participating or controlling Person in any such case to the extent that any 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,
any such preliminary prospectus, final prospectus, summary prospectus, amendment
or supplement thereto in reliance upon and in conformity with written
information furnished to the Company for use in connection with the Registration
Statement or the Prospectus contained therein by such Holder, such Holder's
directors, officers, employees, agents, representatives and affiliates or
participating or controlling Person or (ii) such Holder's, such Holder's
directors', officers', employees', agents', representatives' and affiliates' or
participating or controlling Person's failure to send or give a copy of the
final Prospectus furnished to it 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 prospectus. The obligations of
the Company under this Section 5 shall survive the completion of any offering of
Registrable Shares pursuant to a Registration Statement under this Agreement or
otherwise and shall survive the termination of this Agreement.
(b) Each Holder requesting or joining in any Registration Statement
severally and not jointly shall indemnify and hold harmless the Company, each of
its directors, officers, employees, agents, representatives and affiliates, each
Person, if any, who controls the Company within the meaning of the Securities
Act, and each agent and any underwriter for the Company (within the meaning of
the Securities Act) against any losses, claims, damages or liabilities, costs
and expenses (including without limitation reasonable attorneys' fees, expenses
and disbursements documented in writing), to which the Company or any such
director, officer, employee, agent, representative, affiliate, controlling
Person, agent or underwriter may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) costs, or expenses arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in such Registration Statement or any Prospectus contained therein or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, (i) that such untrue statement or alleged untrue statement or omission
or alleged omission was made in such Registration Statement, preliminary or
final prospectus, summary prospectus or amendments or supplements thereto, in
reliance upon and in conformity with written information furnished by or on
behalf of such Holder for use in connection with such Registration Statement or
the Prospectus contained therein or (ii) such Holder's failure to send or give a
copy of the final prospectus furnished to it 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 if such statement or
omission was corrected in the final prospectus; provided, however, that the
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indemnity agreement contained in this Section 5(b) shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of such Holder.
(c) Promptly after receipt by an indemnified party under this Section 5 of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against any
indemnifying party under this Section 5, notify the indemnifying party in
writing of the commencement thereof and the indemnifying party shall have the
right to participate in and assume the defense thereof with counsel selected by
the indemnifying party and reasonably satisfactory to the indemnified party;
provided, however, that an indemnified party shall have the right to retain its
-------- -------
own counsel, with all fees and expenses thereof to be paid by such indemnified
party, and to be apprised of all progress in any proceeding the defense of which
has been assumed by the indemnifying party; and provided further, that in the
-------- -------
event of a conflict of interest between an indemnifying party and an indemnified
party, an indemnified party shall have the right to retain its own counsel, with
all fees and expenses thereof to be paid by the indemnifying party. The failure
to notify an indemnifying party promptly of the commencement of any such action,
if and to the extent prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party under
this Section 5, but the omission so to notify the indemnifying party will not
relieve it of any liability that it may have to any indemnified party otherwise
than under this Section 5. An indemnifying party shall be entitled to compromise
or settle such action, without the consent of an indemnified party if such
compromise or settlement shall dismiss the action without prejudice and shall
consist solely of monetary payments and such indemnifying party shall make such
payments, or with the consent of an indemnified party in all other cases. An
indemnified party shall not compromise or settle any action without the consent
of an indemnifying party.
(d) To the extent any indemnification by an indemnifying party is
prohibited or limited by law, 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 or liabilities in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party and indemnified party in connection with the actions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of such indemnifying
party and indemnified party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue
statement of material fact or omission or alleged omission to state a material
fact, has been made by, or relates to information supplied by, such indemnifying
party or indemnified party, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such action. The amount
paid or payable by a party as a result of the losses, claims, damages or
liabilities referred to above shall be deemed to include any legal or other fees
or expenses reasonably incurred by such party in connection with any
investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
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.
6. FURNISH INFORMATION: DELIVERY OF PROSPECTUS.
-------------------------------------------
(a) It shall be a condition precedent to the obligations of the Company to
take any action pursuant to this Agreement that the Holders shall furnish to the
Company such information regarding themselves, the Registrable Shares held by
them, and the intended method of disposition of such securities as the Company
shall reasonably request and as shall be required in connection with the action
to be taken by the Company.
(b) Each of the Holders hereby agrees to deliver or cause delivery of the
Prospectus contained in the applicable Registration Statement to any purchaser
of the shares covered by the Registration Statement from the Holder.
7. 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 shares of Common Stock
or any shares of Common Stock owned by any other shareholder or shareholders of
the Company.
8. UNDERWRITING REQUIREMENTS. In connection with any underwritten offering,
-------------------------
the Company shall not be required under Section 2(c) to include Registrable
Shares in such underwritten offering unless the Holders of such Registrable
Shares accept the terms of the underwriting of such offering that have been
reasonably agreed upon between the Company and the underwriters selected by the
Company.
9. 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.
10. RULE 144 SALES. The Company covenants that it will use all commercially
--------------
reasonable efforts to timely file the reports required to be filed by the
Company under the Securities Act and the Securities Exchange Act of 1934, as
amended, so as to enable the Holders to sell Registrable Shares pursuant to Rule
144 under the Securities Act. In connection with any sale, transfer or other
disposition by a 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 the 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 such Holder may reasonably request at least ten (10)
business days prior to any sale of the Registrable Shares.
11. AMENDMENTS AND WAIVERS. The provisions of this Agreement, including the
----------------------
provisions of this sentence, may not be amended, modified, supplemented or
waived, nor may consent to departures therefrom be given, without the written
consent of the Company and the Holders of a majority of the outstanding
Registrable Shares (treating for the purpose of such computation the Holders of
Units as the Holders of Registrable Shares issuable upon exchange of such
Units). Notice of any such amendment, modification, supplement, waiver or
consent adopted in accordance with this Section 11 shall be provided by the
Company to each Holder of Registrable Shares or Units at least thirty (30) days
prior to the effective date of such amendment, modification, supplement, waiver
or consent.
12. NOTICES. All notices and other communications provided for or permitted
-------
hereunder shall be made in writing by hand-delivery, registered first-class
mail, telex, telecopier, or any courier guaranteeing overnight delivery, (i) if
to a Holder, at such Holder's registered address appearing on the share register
of the Company or the Unit register of the Operating Partnership or (ii) if to
the Company, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, with a copy to:
▇▇▇▇▇▇▇, Procter & ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, P.C.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; or at
the time delivered if delivered by an air courier guaranteeing overnight
delivery.
13. TRANSFER OF REGISTRATION RIGHTS. Except as otherwise provided herein, the
-------------------------------
rights to cause the Company to register the securities granted by the Company
under Section 2 may be assigned or otherwise conveyed to a transferee, assignee
or successor of Registrable Securities, who shall be considered a "Holder" for
purposes of this Agreement; provided that (i) in the case of transfers of Units,
such transfer is in accordance with the provisions of the Partnership Agreement,
(ii) such transfer is effected in accordance with applicable federal and state
securities laws, and (iii) the Company is given written notice by such Holder of
said transfer, stating the
name and address of said transferee, assignee or successor and identifying the
securities with respect to which such registration rights are being assigned.
14. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of and
----------------------
be binding upon the successors, assigns and transferees of each of the parties,
including, without limitation and without the need for an express assignment,
subsequent Holders. If any successor, assignee or transferee of any Holder
shall acquire Registrable Shares, in any manner, whether by operation of law or
otherwise, such Registrable Shares shall be held subject to all of the terms of
this Agreement, and by taking and holding such Registrable Shares such Person
shall be entitled to receive the benefits hereof and shall be conclusively
deemed to have agreed to be bound by all of the terms and provisions hereof.
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and assigns
any rights, remedies, obligations, or liabilities under or by reason of this
Agreement except as expressly provided in this Agreement.
15. 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.
16. GOVERNING LAW. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the Commonwealth of Massachusetts applicable to
contracts made and to be performed wholly within said State.
17. 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.
18. 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 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
COMPANY:
MARYLAND PROPERTY CAPITAL TRUST, INC.
By:_________________________________
▇▇▇▇▇ ▇. ▇▇▇▇, President
HOLDERS:
[SIGNATURE BLOCKS TO COME]