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Exhibit 10.51a
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
THIS REGISTRATION RIGHTS AND LOCK-UP AGREEMENT (this "Agreement"),
is
made and entered into as of February 15,
2005, by and among Acadia Realty Trust,
a Maryland real estate investment trust
(the "REIT"), Acadia Realty Limited
Partnership, a Delaware limited partnership
(the "Partnership"), and the
undersigned Klaff Realty, LP, a Delaware
limited Partnership ("Klaff"), which,
as of February 15, 2005 (the "Closing
Date") of the transactions contemplated by
the Agreement of Contribution by and among
Klaff and Klaff Realty, Limited, the
REIT, and the Partnership (the
"Contribution Agreement"), are receiving common
units of limited partnership interests in
the Partnership ("Units"), which are
exchangeable for Conversion Shares (as
defined below).
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, and intending
to be legally bound hereby, the REIT,
the Partnership and Klaff hereby agree as
follows:
1. Certain
Definitions. As used in this Agreement, the following
terms shall have the following respective
meanings:
(a)
"Commission" means the Securities and Exchange
Commission, or any other federal agency at
the time administering the Securities
Act.
(b)
"Conversion Shares" means the Shares issuable upon
exchange of the Units from time to
time.
(c)
"Exchange Act" means the Securities Exchange Act of
1934, as amended, or any successor federal
statute, and the rules and
regulations of the Commission issued under
such Exchange Act, as they each may,
from time to time, be in effect.
(d)
"Holder(s)" means a holder of Registrable Shares
entitled to the rights arising
hereunder.
(e)
"Participating Holder" means a Holder whose Registrable
Shares are included in a Registration
Statement.
(f)
"Registration Expenses" means the expenses described in
Section 4 hereof.
(g)
"Registration Statement" means a registration statement
filed by the REIT with the Commission for a
public offering and sale of equity
securities of the REIT (other than a
registration statement on Form S-8 or Form
S-4, or their successors, or any
registration statement covering only securities
proposed to be issued in exchange for
securities or assets of another
corporation).
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(h)
"Registrable Shares" means (i) the Conversion Shares,
(ii) any other Shares issued in respect of
Conversion Shares, and (iii) any
other Shares issued with respect to the
Shares issued in clauses (i) and (ii)
(because of share splits, share dividends,
reclassifications, recapitalizations,
or similar events); provided, however, that
Shares which are Registrable Shares
shall cease to be Registrable Shares (x)
upon any sale pursuant to a
Registration Statement, or any other sale
or transfer of the Registrable Shares
in any manner to any person or entity other
than a Permitted Transferee (as
defined) or as otherwise expressly provided
herein, or (y) in the event that
Registrable Shares may be freely sold
and/or transferred pursuant to Rule 144(k)
under the Securities Act.
(i)
"Securities Act" means the Securities Act of 1933, as
amended, or any successor federal statute,
and the rules and regulations of the
Commission issued under such Securities
Act, as they each may, from time to
time, be in effect.
(j)
"Shares" means Common Shares of Beneficial Interest of
the REIT, par value $.001 per share.
2. Certain
Shelf Registration. Within one hundred fifty (150) days
from the date of this Agreement, the REIT
shall, at its expense, file a shelf
Registration Statement pursuant to Rule 415
under the Securities Act to register
the Registrable Shares for resale,
including for issuance upon conversion or
exchange of Units. The REIT shall, at its
expense, use commercially reasonable
efforts to maintain the effectiveness of
such shelf Registration Statement until
the earlier of (i) such time as when all of
the Registrable Shares have been
disposed of or (ii) three years after the
conversion or exchange into Shares of
all of the Units.
3.
Registration Procedures. If and whenever the REIT is required
by
the provisions of this Agreement to effect
the registration of any of the
Registrable Shares under the Securities
Act, the REIT shall, at its expense:
(a)
prepare and file with the Commission a Registration
Statement with respect to such Registrable
Shares and use best efforts to cause
that Registration Statement to become
effective;
(b)
use
commercially reasonable efforts to cause the
Registration Statement to remain
effective;
(c)
subject to the provision of Section 2, promptly prepare
and file with the Commission any amendments
and supplements to the Registration
Statement and the prospectus included in
the Registration Statement as may be
necessary to keep the Registration
Statement effective for the period of time
required by the Commission;
(d)
promptly furnish to each Participating Holder such
reasonable numbers of copies of the
prospectus, including a preliminary
prospectus, in conformity with the
requirements of the Securities Act, and such
other documents as the Participating
Holders may reasonably request in order to
facilitate the public sale or other
disposition of the Registrable Shares owned
by such Participating Holders and included
in the Registration Statement; and
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(e)
promptly use commercially reasonable efforts to register
or qualify the Registrable Shares covered
by the Registration Statement under
the securities or Blue Sky laws of states
within the United States as the
Participating Holders shall reasonably
request; provided, however, that the REIT
shall not be required in connection with
this subsection 3(e) to: (i) qualify as
a foreign corporation in any jurisdiction
where, but for the requirements of
this subsection 3(e), it would not be
obligated to be so qualified; (ii) execute
a general consent to service of process in
any jurisdiction; (iii) subject
itself to taxation in any such
jurisdiction; or (iv) register in any state
requiring, as a condition to registration,
escrow or surrender of any REIT
securities held by any security holder
other than the Participating Holders.
If the REIT has delivered a preliminary or final prospectus to
a
Participating Holder and, after having done
so, the prospectus is amended to
comply with the requirements of the
Securities Act, the REIT shall promptly
notify such Participating Holder and, if
requested, such Participating Holder
shall immediately cease making offers of
Registrable Shares and return all
prospectuses to the REIT. The REIT shall
promptly provide Participating Holders
with revised prospectuses and, following
receipt of the revised prospectuses,
Participating Holders shall be free to
resume making offers of the Registrable
Shares.
Notwithstanding any other provisions of this Agreement to the
contrary,
upon receipt by a Participating Holder of a
written notice signed by the Chief
Executive Officer, General Counsel or Chief
Financial Officer of the REIT, to
the effect set forth below, the REIT shall
not be obligated during a reasonable
period of time thereafter to effect any
registrations pursuant to this
Agreement, and each such Participating
Holder agrees that it will immediately
suspend sales of Shares under any effective
Registration Statement for a
reasonable period of time, in either case
not to exceed 90 days, at any time
during which, in the REIT's reasonable
judgment, (i) there is a development
involving the REIT or any of its affiliates
which is material but which has not
yet been publicly disclosed or (ii) sales
pursuant to the Registration Statement
would materially and adversely affect an
underwritten public offering for the
account of the REIT or any other material
financing project or where a proposed
or pending material merger or other
material acquisition or material business
combination or material disposition of the
REIT's assets, to which the REIT or
any of its affiliates is, or is expected to
be, a party. In the event a
registration is postponed or sales by a
Participating Holder pursuant to an
effective Registration Statement are
suspended in accordance with this
paragraph, there shall be added to the
period during which the REIT is obligated
to keep a Registration Statement effective
the number of days for which the
Registration Statement was postponed or
sales were suspended.
4. Expenses
of Registration. The REIT will pay all Registration
Expenses of all registrations under this
Agreement. For purposes of this
Agreement, the term "Registration Expenses"
shall mean all expenses incurred by
the REIT in complying with this Agreement,
including without limitation, all
registration and filing fees, exchange
listing fees, printing expenses, the fees
and disbursements of counsel for the REIT
and the reasonable fees and
disbursements of one counsel selected by
the Participating Holders, the fees and
disbursements of the REIT's accountants,
state Blue Sky fees and expenses, and
the expense of any special audits incident
to or required by any such
registration, but excluding underwriting
discounts and selling commissions.
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5.
Indemnification.
(a)
Indemnification of Participating Holders. In the event
of any registration of any of the
Registrable Shares under the Securities Act
pursuant to this Agreement, the REIT will
indemnify and hold harmless each
Participating Holder, each of its directors
and officers and each other person,
if any, who controls such Participating
Holder within the meaning of the
Securities Act or the Exchange Act, against
any losses, claims, damages or
liabilities to which such Participating
Holder or controlling person may become
subject under the Securities Act, the
Exchange Act, Blue Sky laws or otherwise,
insofar as such losses, claims, damages or
liabilities (or actions in respect
thereof) arise out of or are based upon any
untrue statement or alleged untrue
statement of any material fact contained in
any Registrat
