As filed with the Securities and Exchange Commission on March 3, 2000.
Registration Statement No.333-
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------------
ACADIA REALTY TRUST
--------------------------------------------------------
(Exact name of registrant as specified in its charter)
Maryland 23-2715194
- ------------------------------------- ------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
20 Soundview Marketplace
Port Washington, New York 11050
(516) 767-8830
------------------------------------------------------------------------------
(Address, including zip code, and telephone
number, including area code, of registrant's principal executive offices)
Ross Dworman
Acadia Realty Trust
20 Soundview Marketplace
Port Washington, New York 11050
(516) 767-8830
------------------------------------------------------------------------------
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
Mark Schonberger, Esquire
Battle Fowler LLP
75 East 55th Street
New York, New York 10022
(212) 856-7000
Approximate date of commencement of proposed sale to the public: From time to
time or at one time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [__]
909738.9
<PAGE>
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [ X ]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [__]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [__]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [__]
CALCULATION OF REGISTRATION FEE
<TABLE>
Title of Each Amount to be Proposed Maximum Proposed Maximum Amount of
Class of Securities Registered Offering Price Per Aggregate Offering Price Registration Fee
to be Registered Unit (2)
<S> <C> <C> <C> <C>
common shares, 26,719,319(1) $5.03125 $134,431,573.72 $35,489.94
$0.001 par value
per share
</TABLE>
(1) Includes 10,658,081 shares potentially issuable in exchange for
10,363,147 regular limited partnership interests in Acadia Realty
Limited Partnership and 2,212 preferred limited partnership interests
in Acadia Realty Limited Partnership.
(2) Estimated solely for the purpose of determining the Registration Fee in
accordance with Rule 457(c) of the rules and regulations under the
Securities Act of 1933, as amended. Pursuant to Rule 457, the proposed
maximum offering price per share of common shares of the Registrant is
based upon the average of the high and low reported sales prices of the
common shares on the New York Stock Exchange Composite Transaction Tape
on February 25, 2000.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
909738.9
2
<PAGE>
The information in this Prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This Prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
Subject to Completion Dated March 3, 2000
PROSPECTUS
- ----------
ACADIA REALTY TRUST
26,719,319 Common Shares of Beneficial Interest
This Prospectus relates to Restrictions on Transfer" (p.13).
the offer and sale from time to time
by the persons listed under the The Selling Shareholders,
"Selling Shareholders" section of this from time to time, may offer the
Prospectus of up to 26,719,319 shares common shares covered by this
of Acadia Realty Trust's common prospectus on the New York Stock
shares. Throughout this Prospectus, Exchange or in other markets where our
the terms "we", "us", "our company", common shares may trade at prices to
"the company", "the trust" and which they agree.
"Acadia" are all used in reference to
Acadia Realty Trust, a Maryland real The Selling Shareholders will
estate investment trust formerly known pay any brokerage fees or commissions
as Mark Centers Trust. The term relating to the sales by them. See
"operating partnership" is used in "Plan of Distribution" (p.35). The
reference to Acadia Realty Limited registration of the Selling
Partnership, a Delaware limited Shareholders' shares does not
partnership, formerly known as Mark necessarily mean that any of them will
Centers Limited Partnership, which is sell their shares. Certain of the
a majority-owned subsidiary of the Selling Shareholders are obligated by
trust. Lastly, the term "OP Units" is contract not to sell their common
used in reference to units of limited shares until November 16, 2000 unless
partnership interest in the Operating such obligation is terminated on the
Partnership. occurrence of certain events.
We have issued 16,061,238 We will not receive any
restricted common shares of beneficial proceeds from the sale of common
interest to certain Selling shares by the Selling Shareholders. We
Shareholders and may issue further have agreed to bear certain expenses
shares to the extent certain other of registering the common shares
Selling Shareholders exchange their covered by this prospectus under
10,658,081 OP Units, including 294,934 Federal and state securities laws.
OP Units issuable upon the conversion
of preferred OP Units, for an equal The Selling Shareholders and
number of common shares. We are filing any agents or broker-dealers that
the registration statement of which participate with them in the
this prospectus is a part to fulfill distribution of common shares covered
our contractual obligations to the by this prospectus may be deemed
holders of securities discussed above "underwriters" within the meaning of
and to provide them with freely the Securities Act of 1933, as
tradable securities. amended, and any commissions received
by them on the resale of common shares
Our common shares trade on may be deemed to be underwriting
the New York Stock Exchange under the commissions or discounts under the
symbol "AKR." The shares being Securities Act. See "Plan of
registered pursuant to the Distribution" (p.35). See "Description
registration statement of which this of Our Common Shares--Registration
prospectus is a part are subject to Rights" (p.14) for indemnification
certain restrictions on ownership and arrangements between Acadia and the
transfer designed to assist us in Selling Shareholders.
maintaining our status as a real
estate investment trust ("REIT") for
federal income tax purposes. See
"Description of Our Common Shares--
Investing in our common shares involves various risks. In considering
whether to purchase our common shares, you should carefully consider the matters
discussed under "Risk Factors" beginning on page 8 of this prospectus.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is ______, 2000
909738.9
3
<PAGE>
TABLE OF CONTENTS
Page
WHERE YOU CAN FIND MORE INFORMATION..........................................5
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE..............................5
FORWARD-LOOKING INFORMATION..................................................6
PROSPECTUS SUMMARY...........................................................7
RISK FACTORS.................................................................8
OUR COMPANY.................................................................12
DESCRIPTION OF OUR COMMON SHARES............................................12
USE OF PROCEEDS.............................................................17
INTERESTS OF NAMED EXPERTS AND COUNSEL......................................17
FEDERAL INCOME TAX CONSIDERATIONS...........................................17
SELLING SHAREHOLDERS........................................................27
PLAN OF DISTRIBUTION........................................................35
EXPERTS ...................................................................36
LEGAL MATTERS...............................................................36
909738.9
4
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the Securities and Exchange Commission ("SEC") a
registration statement on Form S-3 under the Securities Act to register the
common shares offered in this prospectus. This prospectus is part of the
registration statement. This prospectus does not contain all the information
contained in the registration statement because we have omitted certain parts of
the registration statement in accordance with the rules and regulations of the
SEC. For further information, we refer you to the registration statement, which
you may read and copy at the public reference facilities maintained by the SEC
at Judiciary Plaza, 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549
and at the SEC's Regional Offices at 7 World Trade Center, 13th Floor, New York,
New York 10048 and Citicorp Center, 500 W. Madison Street, Suite 1400, Chicago,
Illinois 60661-2511. You may obtain copies at the prescribed rates from the
Public Reference Section of the SEC at its principal office in Washington, D.C.
You may call the SEC at 1-800-SEC-0330 for further information about the public
reference rooms. The SEC maintains a web site that contains reports, proxy and
information statements and other information regarding our company. You may
access the SEC's web site at "http://www.sec.gov."
We are subject to the informational requirements of the Securities
Exchange Act of 1934, as amended. As a result, we are required to file reports,
proxy statements and other information with the SEC. These materials can be
copied and inspected at the locations described above. Copies of these materials
can be obtained from the Public Reference Section of the SEC at 450 Judiciary
Plaza, N.W., Room 1024, Washington, D.C. 20549, at prescribed rates. Our common
shares are listed on the New York Stock Exchange under the symbol "AKR." You may
read our reports, proxy and other information statements which we file at the
offices of the NYSE at 20 Broad Street, New York, New York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and information that we file later
with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings we
will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934:
o Our Annual Report on Form 10-K for the fiscal year ended
December 31, 1998, filed with the SEC on March 31, 1999 (SEC
File No. 001-12002);
o Our Quarterly Report on Form 10-Q for the quarter ended March
31, 1999, filed with the Commission on May 17, 1999;
o Our Quarterly Report on Form 10-Q for the quarter ended June
30, 1999, filed with the Commission on August 13, 1999;
o Our Quarterly Report on Form 10-Q for the quarter ended
September 30, 1999, filed with the Commission on November 15,
1999;
o Our Definitive Proxy Statement on Schedule 14A prepared in
connection with our Annual Meeting of Shareholders held on
June 16, 1999, filed with the Commission on May 3, 1999;
o Our Report on Form 8-K filed with the Commission on January 5,
1999; and
o The description of our common shares of beneficial interest
contained in our registration statement on Form 8-A together
with all amendments and reports updating such description
dated May 21, 1993 (SEC File No. 33-6008).
909738.9
5
<PAGE>
You may request a copy of these filings (not including the exhibits to
such documents unless the exhibits are specifically incorporated by reference in
the information contained in this prospectus), at no cost, by writing or
telephoning us at the following address:
Investor Relations
Acadia Realty Trust
20 Soundview Marketplace
Port Washington, New York 11050
Telephone requests may be directed to (516) 767-8830.
This prospectus is part of a registration statement we filed with the
SEC. You should rely only on the information or representations provided in this
prospectus. We have authorized no one to provide you with different information.
We are not making an offer of these securities in any state where the offer is
not permitted. You should not assume that the information in this prospectus is
accurate as of any date other than the date on the front of the document.
Statements contained in this prospectus as to the contents of any
contract or document are not necessarily complete and in each instance reference
is made to the copy of that contract or document filed as an exhibit to the
registration statement or as an exhibit to another filing, each such statement
being qualified in all respects by such reference and the exhibits and schedules
thereto.
FORWARD-LOOKING INFORMATION
Certain information both included and incorporated by reference in this
prospectus may contain forward- looking statements within the meaning of Section
27A of the Securities Act and Section 21E of the Securities and Exchange Act of
1934 and as such may involve known and unknown risks, uncertainties and other
factors which may cause the actual results, performance or achievements of our
company to be materially different from future results, performance or
achievements expressed or implied by such forward-looking statements.
Forward-looking statements, which are based on certain assumptions and describe
our future plans, strategies and expectations are generally identifiable by use
of the words "may," "will," "should," "expect," "anticipate," "estimate,"
"believe," "intend" or "project" or the negative thereof or other variations
thereon or comparable terminology. Factors which could have a material adverse
effect on the operations and future prospects of our company include, but are
not limited to, changes in: economic conditions generally and the real estate
market specifically, legislative/regulatory changes (including changes to laws
governing the taxation of REITs), availability of capital, interest rates,
competition, supply and demand for retail space and multi-family housing in our
current and proposed market areas and general accounting principles, policies
and guidelines applicable to REITs. These risks and uncertainties should be
considered in evaluating any forward-looking statements contained or
incorporated by reference herein.
909738.9
6
<PAGE>
PROSPECTUS SUMMARY
This Summary only highlights the more detailed information appearing
elsewhere in this prospectus or incorporated herein by reference. As this is a
summary, it may not contain all information that is important to you. You should
read this entire prospectus carefully before deciding whether to purchase our
common shares.
The Company
We are a fully-integrated and self-managed real estate investment
trust. We are primarily engaged in the ownership, acquisition, redevelopment and
management of neighborhood and community shopping centers, and multi- family
properties. We were organized in March, 1993, and until August, 1998, our name
was Mark Centers Trust. Our common shares trade on the New York Stock Exchange
under the symbol "AKR."
We are formed under the laws of the State of Maryland. Our principal
executive offices are located at 20 Soundview Marketplace, Port Washington, New
York 11050. Our phone number is (516) 767-8830.
Securities That May Be Offered
This prospectus relates to the offer and sale from time to time by the
persons listed under the "Selling Shareholders" section of this prospectus of
(i) up to 16,061,238 common shares and (ii) up to 10,658,081 common shares which
may be issued upon the exchange of OP Units held by certain of the Selling
Shareholders including 294,933 OP Units issuable upon the conversion of
preferred OP units. We are registering the common shares covered by this
prospectus to satisfy our obligations under registration rights agreements with
the Selling Shareholders.
We will not receive any cash proceeds from the sale of the common
shares by the Selling Shareholders.
Risk Factors
Investing in our common shares involves various risks. In considering
whether to purchase our common shares, you should carefully consider the matters
discussed under "Risk Factors" beginning on page 8 of this prospectus.
Tax Status of the Company
Acadia has elected to qualify as a REIT under Sections 856 through 860
of the Internal Revenue Code of 1986 in each year since 1993. As long as we
qualify for taxation as a REIT, we generally will not be subject to federal
income tax on that portion of our ordinary income and capital gains that is
distributed to our shareholders. Even if we qualify for taxation as a REIT, we
may be subject to certain state and local taxes on our income and property and
to federal income and excise taxes on our undistributed income. See "Risk
Factors--Risk factors relating to our business as a REIT" (p.9) and "Federal
Income Tax Considerations" (p.17) for a more detailed explanation.
909738.9
7
<PAGE>
RISK FACTORS
You should consider carefully the following risk factors together with
all of the other information included or incorporated by reference in this
prospectus before you decide to purchase our common shares. This section
includes or refers to certain forward-looking statements. You should refer to
the explanation of the qualifications and limitations on such forward-looking
statements discussed on page 6 of this prospectus.
We could encounter problems as a result of our use of debt.
We borrow money to pay for the acquisition, development and operation
of properties and for other general corporate purposes. Our declaration of trust
(as amended) and our bylaws do not limit the amount of indebtedness that we may
incur. By borrowing money, we expose ourselves to several problems, including
the following:
o inability to meet existing obligations;
o reduced access to additional debt; and
o loss of our property as a result of any default on existing debt.
As of September 30, 1999, Acadia had total mortgage debt of $308.6
million of which $249.5 million was fixed-rate and $59.1 million was variable
rate based upon either LIBOR or the lender's commercial paper rate plus certain
spreads. Our mortgage indebtedness is generally nonrecourse to us. However, even
with respect to nonrecourse mortgage indebtedness, we could be obligated to pay
our lenders deficiencies resulting from, among other things, fraud,
misapplication of funds and environmental liabilities.
A downturn in the economy could make it difficult for us to borrow
money on favorable terms. If we are unable to borrow, we might need to sell some
of our assets at unfavorable prices in order to pay our loans. We could
encounter several problems, including:
o insufficient cash flow necessary to meet required payments of
principal and interest;
o an increase on variable interest rates on indebtedness; and
o the inability to refinance existing indebtedness on favorable
terms or at all.
Increase in market interest rates could have an adverse effect on the price of
our common shares.
One of the factors that may influence the prices for the common shares
in public trading markets will be the annual yield from our distributions on the
common shares as compared to yields on certain financial instruments. An
increase in market interest rates will result in higher yields on certain
financial instruments, which could adversely affect the market prices for our
common shares.
We may suffer an uninsured loss.
We maintain comprehensive liability, fire, flood (where appropriate),
extended coverage, and rental loss insurance with respect our properties with
policy specifications, limits, and deductibles customarily carried for similar
properties. Certain types of losses, however, may be either uninsurable or not
economically insurable, such as losses due to earthquakes, riots or acts of war.
Should an uninsured loss occur, we could lose both our investments in, and
anticipated cash flow from, a property.
The loss of a key executive officer could have an adverse effect on the company.
909738.9
8
<PAGE>
Although we have entered into employment agreements with our Chairman
and Chief Executive Officer, Ross Dworman and our President, Kenneth F.
Bernstein, the loss of any of their services could have an adverse effect on our
operations.
Risk factors relating to our business as a REIT:
As a real estate company, our ability to generate revenues and pay distributions
to our shareholders is affected by the risks inherent in owning real property
investments.
We derive most of our revenue from investments in real property. Real
property investments are subject to different types and degrees of risk that may
reduce the value of our assets and our ability to generate revenues. The factors
that may reduce our revenues, net income and cash available for distributions to
shareholders include the following:
o local conditions, such as an oversupply of space or a reduction
in demand for real estate in an area;
o competition from other available space;
o the ability of the owner to provide adequate maintenance;
o insurance and variable operating costs;
o government regulations;
o changes in interest rate levels;
o the availability of financing;
o potential liability due to changes in environmental and other
laws; and
o changes in the general economic climate.
We may not be able to sell our assets if we need to do so.
Real estate investments are relatively illiquid, and therefore we may
not be able to sell one or more of our properties in order to respond promptly
to changes in economic or other conditions. In addition, the Internal Revenue
Code limits a REIT's ability to sell properties held for fewer than four years.
Our inability to sell one or more of our properties could harm our performance
and ultimately our ability to make distributions to our shareholders.
We could have financial problems as a result of our tenants' financial
difficulty.
Our commercial and residential tenants may, from time to time,
experience downturns in their businesses/personal finances which may result in
their failure to make their rental payments to us when due. Missed rental
payments, in the aggregate, could impair our funds from operations and,
subsequently, our ability to make distributions to our shareholders. In
addition, at any time, our tenants may seek the protection of the bankruptcy
laws and have their leases either rejected or terminated. Our tenants' failure
to affirm their leases following bankruptcy could similarly impair our funds
from operations and ability to make distributions.
Our acquisition and development of real estate could cost more than we
anticipate.
We may acquire existing retail and multi-family housing properties to
the extent we can acquire these properties on acceptable terms. We could incur
higher than anticipated costs for improvements to these properties
909738.9
9
<PAGE>
to conform them to standards established for the intended market position. Once
improved, the properties may not perform as expected.
We also intend to pursue retail and multi-family housing development
projects. Developing properties generally carries more risk than acquiring
existing properties. For example, development projects usually require
governmental and other approvals, which we may not be able to obtain.
Furthermore, approvals frequently require the improvement of public
infrastructure or other activities to mitigate the effects of the proposed
development, which may cost more than we anticipate. Our development activities
will also entail other risks, including:
o that we will devote financial and management resources to
projects which may not come to fruition;
o that we will not complete a development project as scheduled;
o that we will incur higher construction costs than anticipated;
o that occupancy rates and rents at a completed project will be
less than anticipated; and
o that expenses at a completed development will be higher than
anticipated.
These risks may harm our results of operations and impair our ability to make
distributions to our shareholders.
Integrating the aforementioned acquisition and development properties
into our current systems and procedures presents a challenge to our management.
Failure to do so could cause us financial harm and impair our ability to make
distributions to our shareholders.
We could incur unanticipated expenses if we fail to qualify as a REIT.
We have elected to qualify as a REIT under the Internal Revenue Code.
We believe that since 1993 we have satisfied the REIT qualification
requirements. However, the IRS could challenge our REIT qualification for
taxable years still subject to audit. Moreover, we may fail to qualify as a REIT
in future years. Qualification as a REIT involves the application of highly
technical and complex Internal Revenue Code provisions for which there are only
limited judicial or administrative interpretations. For example, in order to
qualify as a REIT, we must derive at least 95% of our gross income in any year
from qualifying sources, and we must distribute annually to shareholders 95% of
our REIT taxable income, excluding net capital gains. In addition, REIT
qualification involves the determination of factual matters and circumstances
not entirely within our control.
If we were to operate in a manner that prevented us from qualifying as
a REIT, or if we were to fail to qualify for any reason, a number of adverse
consequences would result. If in any taxable year we fail to qualify as a REIT,
we would not be allowed to deduct distributions to shareholders in computing our
taxable income. Furthermore, we would be subject to federal income tax on our
taxable income at regular corporate rates. Unless entitled to statutory relief,
we would also be disqualified from treatment as a REIT for the four taxable
years following the year during which qualification was lost. As a result, the
funds available for distribution to our shareholders would be reduced for each
of the years involved. Although we currently intend to operate as a qualified
REIT, future economic, market, legal, tax or other considerations may impair our
REIT qualification or may cause our board of trustees to revoke the REIT
election. See "Federal Income Tax Considerations" (p.17).
We could incur costs from environmental problems even though we did not cause,
contribute to or know about them.
Because we own, operate, manage and develop real estate, for liability
purposes we may be considered under the law to be an owner or operator of those
properties or as having arranged for the disposal or treatment of hazardous or
toxic substances. As a result, we could have to pay removal or remediation
costs. Federal, state and local laws often impose liability regardless of
whether the owner or operator knew of, or was responsible for, the presence of
909738.9
10
<PAGE>
the hazardous or toxic substances. The presence of those substances, or the
failure to properly remediate them, may impair the owner's or operator's ability
to sell or rent the property or to borrow using the property as collateral. A
person who arranges for the disposal or treatment of hazardous or toxic
substances may also be liable for the costs of removing or remediating the
substances at a disposal or treatment facility, whether or not that person owns
or operates the facility. Furthermore, environmental laws impose liability for
release of asbestos-containing materials into the air. If we were ever held
responsible for releasing asbestos-containing materials, third parties could
seek recovery from us for personal injuries. Thus, we might have to pay other
costs, including governmental fines and costs related to personal injuries and
property damage, resulting from the environmental condition of our properties,
regardless of whether we actually had knowledge of or contributed to those
conditions.
Rent control/stabilization legislation may reduce the rental income we receive
from residential properties.
While none of our five residential properties are located in
jurisdictions which have adopted rent control/stabilization legislation, such
legislation may be enacted in these jurisdictions in the future. Similarly, we
may purchase additional properties in jurisdictions where such legislation is
already in place. In either event, our income from residential leases could be
reduced, as could our ability to recover increases in operating expenses and the
costs of capital improvements.
Laws benefitting disabled persons may result in unanticipated expenses.
A number of Federal, state and local laws ensure that disabled persons
have reasonable access to public buildings. For example, the Fair Housing
Amendments Act of 1988 (the "FHAA") requires that apartment properties first
occupied after March 13, 1990, be accessible to the handicapped. Noncompliance
with the FHAA could result in an imposition of fines, an award of damages to
private litigants, and/or an order to correct any non-complying feature (which
could result in substantial capital expenditures). Although we believe that our
properties are substantially in compliance with laws such as the FHAA, we may
incur unanticipated expenses associated with such laws.
909738.9
11
<PAGE>
OUR COMPANY
Our company (formerly known as Mark Centers Trust) is a fully
integrated and self-managed REIT focused primarily on the ownership,
acquisition, redevelopment and management of neighborhood and community shopping
centers and multi-family properties. All of our assets are held by, and all of
our operations are conducted through, the operating partnership (formerly known
as Mark Centers Limited Partnership) and its majority owned partnerships. As of
September 30, 1999, our company owned a 71% interest in the operating
partnership and the Selling Shareholders owned the remaining 29% in the form of
OP Units, which are exchangeable on a one-for-one basis (subject to adjustment
for certain events) for common shares. Our company will at all times be the sole
general partner of the operating partnership.
Our principal offices are located at 20 Soundview Marketplace, New York
11050, and our telephone number is (516) 767-8830.
DESCRIPTION OF OUR COMMON SHARES
The following description of our common shares does not purport to be
complete and is qualified in its entirety by reference to our declaration of
trust and bylaws, each as amended and restated, copies of which are exhibits to
the registration statement of which this prospectus is a part. See "Where you
can find more information" (p.5).
General
Under our declaration of trust, we have authority to issue 100,000,000
common shares, par value $0.001 per share. All common shares, when issued, are
duly authorized, fully paid and nonassessable. This means that the full price
for the shares has been paid at the time of issuance and consequently that any
holder of such shares will not later be required to pay us any additional money
for the same. As of September 30, 1999, 26,044,615 common shares were issued and
outstanding, as were 10,484,143 common OP Units which are convertible into the
same number of common shares. In addition, 2,212 convertible preferred OP Units
were issued at a price of $1,000 per Unit to certain Selling Shareholders on
November 18, 1999. These preferred OP Units, which are convertible into common
OP Units at a conversion price of $7.50 per common Unit, have a distribution
preference and entitle the holder to a 9.0% dividend yield. Any OP Units which
result from the conversion of such preferred OP Units are subject to a 12-month
lock-up period ending November 16, 2000, during which time they cannot be
converted into common shares.
Distributions
Common shareholders may receive distributions out of assets that we can
legally use to pay distributions, when and if they are authorized and declared
by our board of trustees. Each common shareholder shares in the same proportion
as other common shareholders out of the assets that we can legally use to pay
distributions after we pay or make adequate provision for all of our known debts
and liabilities in the event we are liquidated, dissolved or our affairs are
would up.
Voting Rights
Holders of common shares have the power to vote on all matters
presented to our shareholders, including the election of trustees, except as
otherwise provided by Maryland law. Our declaration of trust prohibits us from
merging or selling all or substantially all of our assets without the approval
of a two-thirds of the outstanding shares that are entitled to vote on such
matters. Holders of common shares are entitled to one vote per share.
909738.9
12
<PAGE>
There is no cumulative voting in the election of our trustees, which
means that holders of more than 50% of the common shares voting for the election
of trustees can elect all of the trustees if they choose to do so and the
holders of the remaining shares cannot elect any trustees.
Other Rights
All common shares have equal dividend, liquidation and other rights,
and have no preference, appraisal or exchange rights, except for any appraisal
rights provided by Maryland Law. Holders of our common shares have no
conversion, sinking fund or redemption rights, or preemptive rights to subscribe
for any of our securities.
Restrictions on Transfer
To qualify as a REIT under the Internal Revenue Code of 1986, we must
satisfy certain ownership requirements. Specifically, not more than 50% in value
of our outstanding common shares may be owned, directly or indirectly, by five
or fewer individuals (as defined in the Internal Revenue Code of 1986 to include
certain entities) during the last half of a taxable year, and the common shares
must be beneficially owned by 100 or more persons during at least 335 days of a
taxable year of twelve months or during a proportionate part of a shorter
taxable year. We must also satisfy certain income requirements to maintain our
REIT status. One such requirement is that at least 75% of our company's gross
income for each calendar year must consist of rents from real property and
income from certain other real property investments. This is complicated by the
fact that the rents received by the operating partnership will not qualify as
rents from real property if we own, actually or constructively, 10% or more of
the ownership interests in our lessees, within the meaning of section
856(d)(2)(B) of the Internal Revenue Code of 1986, as amended. See "Federal
Income Tax Considerations--Requirements for Qualification--Income Tests" (p.19).
Because our board of trustees believes it is essential for us to
continue to qualify as a REIT, our declaration of trust contains provisions
aimed at satisfying the requirements described above. In regard to the ownership
requirements, the declaration of trust provides that subject to certain
exceptions, no person may own, or be deemed to own by virtue of the attribution
provisions of the Internal Revenue Code of 1986, more than 4% of our outstanding
common shares. The Trustees may waive this 4% limitation if evidence
satisfactory to them or our tax counsel is presented that such ownership will
not jeopardize our status as a REIT. As a condition of such waiver, the Trustees
may require opinions of counsel satisfactory to them and/or an undertaking from
the applicant with respect to preserving our REIT status.
The trustees of Mark Centers Trust waived the 4% ownership limitation
in August, 1998 when certain affiliates of RD Capital, Inc. received shares in
consideration of their contribution to Mark Center Limited Partnership. On two
subsequent occasions, our trustees permitted investors owing in excess of 4% of
the trust's outstanding shares to acquire additional shares through open market
purchases transacted during specified three-month windows.
In addition, our declaration of trust provides that any purported
transfer or issuance of shares or securities transferable into shares which
would (i) violate the 4% limitation described above, (ii) result in shares being
owned by fewer than 100 persons for purposes of the REIT provisions of the
Internal Revenue Code of 1986, (iii) result in Acadia being "closely held" with
the meaning of Section 856(h) of the Internal Revenue Code of 1986, or (iv)
otherwise jeopardize our REIT status under the Internal Revenue Code (including
a transfer which would cause Acadia to own, actually or constructively, 9.8% or
more of the ownership interests in one of our lessees) will be null and void ab
initio (from the beginning). Moreover, common shares transferred, or proposed to
be transferred, in contravention of the above will be subject to purchase by the
Acadia at a price equal to the lesser of (i) the price stipulated in the
challenged transaction and (ii) the fair market value of such shares (determined
in accordance with the rules set forth in our declaration of trust).
All certificates representing the common shares bear a legend referring
to the restrictions described above.
909738.9
13
<PAGE>
The ownership limitations described above could have the effect of
delaying, deferring or preventing a takeover or other transaction in which
holders of some, or a majority, of common shares might receive a premium for
their shares over the then prevailing market price or which such holders might
believe to be otherwise in their best interest.
Registration Rights
The Selling Shareholders and certain other holders of OP Units entered
into Registration Rights and Lock-Up Agreements with Acadia whereby the Selling
Shareholders and OP Unit holders agreed not to sell or otherwise transfer their
common shares and Units during a specified lockup period in exchange for certain
registration rights. We are filing the registration statement of which this
prospectus is a part pursuant to the such agreements.
The Registration Rights and Lock-Up Agreements provide that we will
indemnify and hold harmless the Selling Shareholders against losses, claims,
damages, or liabilities (or actions in respect thereof) to which such
individuals may become subject under Federal and state securities laws which
arise out of (i) any untrue statement or alleged untrue statement of a material
fact contained in a registration statement (or any amendment or supplement
thereto) pursuant to which their common shares were registered under the
Securities Act of 1933, as amended, (ii) the omission or alleged omission from a
registration statement of a material fact required to be stated therein or
necessary to make the statements therein not misleading, (iii) any untrue
statement or alleged untrue statement of a material fact contained in any
prospectus, or (iv) the omission or alleged omission from a registration
statement of a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading.
The Registration Rights and Lock-Up Agreements also provide that we will
reimburse certain of the Selling Shareholders (and the officers, directors or
controlling persons of those Selling Shareholders) for any legal or any other
expenses reasonably incurred by such individuals in connection with
investigating or defending any such loss, claim, damage, liability or action.
However, the indemnity discussed above does not apply to a Selling
Shareholder if the loss, claim, damage or liability arises out of (i) any untrue
statement or omission made by Acadia in a registration statement, preliminary
prospectus or prospectus (or any amendment or supplement thereto) in reliance
upon, and in conformity with, written information furnished to Acadia by a
Selling Shareholder specifically for use in, or the preparation of, such
registration statement, preliminary prospectus or prospectus (or any amendment
or supplement thereto), or (ii) such Selling Shareholder's failure to deliver an
amended or supplemental prospectus, after having been provided copies of any
such amended or supplemental prospectus by Acadia, if such loss, liability,
claim, damage or expense would not have arisen had such delivery occurred.
Transfer Agent and Registrar
The transfer agent and registrar for our common shares is American
Stock Transfer & Trust Company with has an address at 40 Wall Street, New York,
NY 10005.
Declaration of Trust and Bylaw Provisions and Certain Provisions of Maryland Law
Number of Trustees; Election of Trustees, Removal of Trustees, the
Filling of Vacancies. Our declaration of trust provides that the board of
trustees will consist of not less than two nor more than fifteen persons, and
that the number of trustees will be set by the trustees then in office. Our
board currently consists of six trustees, each of whom serves until the next
annual meeting of shareholders and until his successor is duly elected and
qualified. Election of each trustee requires the approval of a plurality of the
votes cast by the holders of common shares in person or by proxy at our annual
meeting. The board of trustees does not have a nominating committee. Our bylaws
provide that the shareholders may, at any time, remove any trustee, with or
without cause, by the affirmative vote of a majority of all the votes entitled
to be cast on the matter and may elect a successor to fill any resulting vacancy
for the balance of the term of the removed trustee. Any vacancy (including a
vacancy created by an increase in the number of trustees) will be filled, at any
regular meeting or at any special meeting called for that purpose, by a majority
of the trustees.
909738.9
14
<PAGE>
Limitation of Liability and Indemnification of Trustees and Officers.
Our bylaws and declaration of trust authorize our company, to the extent
permitted under Maryland law, to indemnify its trustees and officers in their
capacity as such. Section 8-301(15) of the Maryland General Corporation Law
("MGCL") permits a Maryland REIT to indemnify or advance expenses to trustees
and officers to the same extent as is permitted for directors and officers of a
Maryland corporation under the MGCL The MGCL requires a Maryland corporation
(unless its charter provides otherwise, which our declaration of trust does not)
to indemnify a director or officer who has been successful, on the merits or
otherwise, in the defense of any proceeding to which he is made a party by
reason of his service in that capacity. The MGCL permits a Maryland corporation
to indemnify its present and former directors and officers, among others,
against judgments, penalties, fines, settlements and reasonable expenses
actually incurred by them in connection with any proceeding to which they may be
made a party by reason of their service in those or other capacities unless it
is established that (a) the act or omission of the director or officer was
material to the matter giving rise to the proceeding and (i) was committed in
bad faith or (ii) was the result of active and deliberate dishonesty, (b) the
director or officer actually received an improper personal benefit in money,
property or services or (c) in the case of any criminal proceeding, the director
or officer had reasonable cause to believe that the act or omission was
unlawful. However, a Maryland corporation may not indemnify for an adverse
judgment in a suit by or in the right of the corporation or for a judgment of
liability on the basis that a personal benefit was improperly received, unless
in either case a court orders indemnification and then only for expenses. In
addition, the MGCL permits a corporation to advance reasonable expenses to a
director or officer upon the corporation's receipt of a written affirmation by
the director or officer of his or her good faith belief that he or she has met
the standard of conduct necessary for indemnification by the corporation and a
written undertaking by such director or officer on his or her behalf to repay
the amount paid or reimbursed by the corporation if it shall ultimately be
determined that the standard of conduct was not met.
Our bylaws also permit the company, subject the approval of our board
of trustees, to indemnify and advance expenses to any person who served as a
predecessor of the company in any of the capacities described above and to any
employee or agent of the company or a predecessor of the company.
In addition to the above, our company has purchased and maintains
insurance on behalf of all of its trustees and executive officers against
liability asserted against or incurred by them in their official capacities with
the company, whether or not the company is required or has the power to
indemnify them against the same liability.
Business Combinations. Section 8-301(14) of the MGCL permits a Maryland
REIT to enter to a business combination (including a merger, consolidation,
share exchange or, in certain circumstances, an asset transfer or issuance or
reclassification of equity securities) on the same terms as a Maryland
corporation under the MGCL. Under the MGCL, certain business combinations
between a Maryland corporation and any person who beneficially owns 10% or more
of the voting power of such corporation's shares, or an affiliate of such
corporation who, at any time within the two-year period prior to the date in
question, was the beneficial owner of 10% or more of the voting power of the
then-outstanding voting shares of such corporation (an "Interested Stockholder")
or an affiliate thereof, are prohibited for five years after the most recent
date on which the Interested Stockholder becomes an Interested Stockholder.
Thereafter, any such business combination must be recommended by the board of
directors of such corporation and approved by the affirmative vote of at least
(a) 80% of the votes entitled to be cast by holders of outstanding shares of
voting stock of such corporation and (b) two-thirds of the votes entitled to be
cast by holders of shares of voting stock of such corporation other than the
shares held by the Interested Stockholder with whom (or with whose affiliate)
the business combination is to be affected, unless, among other conditions, the
corporation's common shareholders receive a minimum price (as defined in the
MGCL) for their shares and the consideration is received in cash or in the same
form as previously paid by the Interested Stockholder for its shares.
Control Share Acquisitions. The MGCL provides that "control shares" of
a Maryland corporation acquired in a "control share acquisition" have no voting
rights except to the extent approved by a vote of two-thirds of the votes
entitled to be cast on the matter, excluding shares owned by the acquirer, by
officers or by directors who are employees of the corporation. "Control Shares"
are voting shares of stock which, if aggregated with all other such shares of
stock previously acquired by the acquirer, or in respect of which the acquirer
is able to exercise or direct the exercise of voting power (except solely by
virtue of a revocable proxy), would entitle the acquirer to exercise
909738.9
15
<PAGE>
voting power in electing directors within one of the following ranges of voting
power: (i) one-fifth or more but less than one-third, (ii) one-third or more but
less than a majority, or (iii) a majority or more of all voting power. Control
Shares do not include shares which the acquiring person is then entitled to vote
as a result of having previously obtained stockholder approval. A "control share
acquisition" means the acquisition of control shares, subject to certain
exceptions.
A person who has made or proposes to make a control share acquisition,
upon satisfaction of certain conditions (including an undertaking to pay
expenses), may compel the board of directors of the corporation to call a
special meeting of stockholders to be held within 50 days of demand to consider
the voting rights of the shares. If no request for a meeting is made, the
corporation may itself present the question at any stockholders meeting.
If voting rights are not approved at the meeting or if the acquiring
person does not deliver an acquiring person statement as required by the
statute, then, subject to certain conditions and limitations, the corporation
may redeem any or all of the control shares (except those for which voting
rights have previously been approved) for fair value determined, without regard
to the absence of voting rights for the control shares, as of the date of the
last control share acquisition by the acquirer or of any meeting of stockholders
at which the voting rights of such shares are considered and not approved. If
voting rights for control shares are approved at a stockholders meeting and the
acquirer becomes entitled to vote a majority of the shares entitled to vote, all
other stockholders may exercise appraisal rights. The fair value of the shares
as determined for purposes of such appraisal rights may not be less than the
highest price per share paid by the acquirer in the control share acquisition,
and certain limitations and restrictions otherwise applicable to the exercise of
dissenters' rights do not apply in the context of a control share acquisition.
The foregoing does not apply to shares acquired in a merger,
consolidation or share exchange, if the corporation is a party to the
transaction, or to acquisitions approved or exempted by the charter or bylaws of
the corporation. Pursuant to the MGCL, the company has exempted control share
acquisitions involving trustees and employees of the company and any person
approved by the trustees of the company in their sole discretion.
Amendments to Our Declaration of Trust. In general, the declaration of
trust may be amended by the affirmative vote or written consent of the holders
of not less than a majority of the common shares then outstanding and entitled
to vote thereon. However, amendments with respect to certain provisions relating
to the ownership requirements, reorganizations and certain mergers or
consolidations or the sale of substantially all of the company's assets, which
amendments require the affirmative vote or written consent of the holders of not
less than two-thirds of the common shares then outstanding and entitled to vote
thereon. The Trustees of our company, by a two-thirds vote, may amend the
provisions of the declaration of trust from time to time to effect any change
deemed necessary by the Trustees to allow Acadia to qualify and continue to
qualify as a REIT
Dissolution of Our Company or its REIT Status. The declaration of trust
permits the termination and the discontinuation of our operations by the
affirmative vote of the holders of not less than a majority of the outstanding
shares entitled to vote at a meeting of shareholders called for that purpose. In
addition, the declaration of trust permits the Trustees to terminate our REIT
status at any time.
Anti-Takeover Effect of Certain Provisions of Maryland Law and of the
Declaration of Trust. The limitation on ownership of common shares set forth in
our declaration of trust, as well as the provisions of the MGCL dealing with
business combinations and control share acquisitions could have the effect of
discouraging offers to acquire Acadia or of hampering the consummation of a
contemplated acquisition.
909738.9
16
<PAGE>
USE OF PROCEEDS
We will not receive any proceeds from the sale of common shares by
Selling Shareholders.
INTERESTS OF NAMED EXPERTS AND COUNSEL
Martin L. Edelman, a trustee of the company, is counsel to the law firm
of Battle Fowler LLP. Battle Fowler LLP is rendering an opinion as to certain
tax matters in the registration statement of which this prospectus is a part.
FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of material federal income tax matters
relating to the operations of our company that may be relevant to prospective
Acadia shareholders. It is based upon current law and is not tax advice. This
discussion does not address all aspects of taxation that may be relevant to
particular shareholders in light of their personal investment or tax
circumstances, or to certain types of shareholders (including, without
limitation, insurance companies, tax-exempt organizations, financial
institutions, broker-dealers, foreign corporations and persons who are not
citizens or residents of the United States) subject to special treatment under
the federal income tax laws, nor does it give a detailed discussion of any
state, local or foreign tax considerations. In the opinion of our tax counsel,
the following discussion accurately reflects the federal income tax
considerations relating to the operations of the company that are likely to be
material to an Acadia shareholder.
EACH PROSPECTIVE SHAREHOLDER OF THE COMPANY IS ENCOURAGED TO CONSULT
ITS OWN TAX ADVISOR REGARDING THE SPECIFIC TAX CONSEQUENCES TO IT OF THE
PURCHASE, OWNERSHIP AND SALE OF THE COMPANY'S COMMON SHARES AND OF THE COMPANY'S
ELECTION TO BE TAXED AS A REIT, INCLUDING THE FEDERAL, STATE, LOCAL, FOREIGN AND
OTHER TAX CONSEQUENCES OF SUCH PURCHASE, OWNERSHIP, SALE AND ELECTION AND OF
POTENTIAL CHANGES IN APPLICABLE TAX LAWS.
General. We made an election to be taxed as a REIT for federal income
tax purposes commencing with our taxable year ended December 31, 1993. We
believe the company is organized and operates in such a manner as to qualify for
taxation as a REIT under the Internal Revenue Code of 1986. We intend to
continue to operate in such a manner. However, no assurance can be given that we
will operate in a manner so as to qualify or remain qualified.
The requirements relating to the federal income tax treatment of REITs
and their shareholders are highly technical and complex. The following
discussion sets forth only the material aspects of those requirements. This
summary is qualified in its entirety by the applicable Code provisions and
Treasury Regulations promulgated thereunder, and administrative and judicial
interpretations thereof.
Opinion of Our Tax Counsel. In the opinion of our tax counsel,
commencing with the taxable year ended December 31, 1999, we have been organized
and have operated in conformity with the requirements for qualification as a
REIT within the meaning of the Internal Revenue Code of 1986 and our proposed
method of operation of the company will enable Acadia to continue to meet the
requirements for qualification and taxation as a REIT under the Internal Revenue
Code of 1986. It must be emphasized that the opinion of our tax counsel is based
on various assumptions and is conditioned upon certain representations made by
the company and others as to factual matters. Moreover, such qualification and
taxation as a REIT depends upon our ability to meet, through actual annual
operating results, the distribution levels, diversity of share ownership and the
various other qualification tests imposed under the Internal Revenue Code of
1986 that are discussed below, the results of which have not been and will not
be reviewed by our tax counsel. Accordingly, no assurance can be given that the
actual results of the company's operations for any one taxable year will satisfy
such requirements.
909738.9
17
<PAGE>
Taxation of Our Company. As long as we qualify to be taxed as a REIT,
we generally will not be subject to federal corporate income taxes on that
portion of its ordinary income or capital gain that is distributed currently to
shareholders. This is because the REIT provisions of the Internal Revenue Code
of 1986 generally allow a REIT to deduct dividends paid to its shareholders.
This deduction for dividends paid to shareholders substantially eliminates the
federal "double taxation" on earnings (once at the corporate level and once
again at the shareholder level) that generally results from investment in a
corporation.
Even if we qualify to be taxed as a REIT, we may be subject to federal
income tax in the following circumstances. First, a REIT will be taxed at
regular corporate rates on any undistributed REIT taxable income and
undistributed net capital gains. Second, under certain circumstances, a REIT may
be subject to the "alternative minimum tax" on its items of tax preference, if
any. Third, if a REIT has (i) net income from the sale or other disposition of
"foreclosure property" (generally, property acquired by reason of a default on a
lease or an indebtedness held by a REIT) that is held primarily for sale to
customers in the ordinary course of business or (ii) other non- qualifying net
income from foreclosure property, it will be subject to tax at the highest
corporate rate on such income. Fourth, if a REIT has net income from a
"prohibited transaction" (generally, a sale or other disposition of property
held primarily for sale to customers in the ordinary course of business, other
than foreclosure property), such income will be subject to a 100% tax. Fifth, if
a REIT should fail to satisfy the 75% gross income test or the 95% gross income
test (as discussed below), and has nonetheless maintained its qualification as a
REIT because certain other requirements have been met, it will be subject to a
100% tax on the net income attributable to the greater of the amount by which
the REIT fails the 75% or 95% test, multiplied by a fraction intended to reflect
the REIT's profitability. Sixth, if a REIT should fail to distribute with
respect to each calendar year at least the sum of (i) 85% of its REIT ordinary
income for such year, (ii) 95% of its REIT capital gain net income for such
year, and (iii) any undistributed taxable income from prior periods, the REIT
will be subject to a 4% excise tax on the excess of such required distribution
over the amounts actually distributed. Seventh, if a REIT acquires any asset
from a C corporation (i.e., a corporation generally subject to a full
corporate-level tax) in a transaction in which the basis of the asset in the
REIT's hands is determined by reference to the basis of the asset (or any other
property) in the hands of the C corporation and the REIT recognizes gain on the
disposition of such asset during the ten-year period beginning on the date on
which such asset was acquired by the REIT, then the excess of the fair market
value of such property at the beginning of the applicable ten-year period over
the REIT's adjusted basis in such asset as of the beginning of such ten-year
period, or built in gain, will generally be subject to a tax at the highest
regular corporate rate.
Requirements for Qualification. To qualify as a REIT under the Internal
Revenue Code of 1986, an enterprise must elect to be so treated and must meet
the requirements, discussed below, relating to its organization, sources of
income, nature of assets, and distributions of income to shareholders.
Organizational Requirements. The Internal Revenue Code of 1986 defines
a REIT as a corporation, trust or association: (i) that is managed by one or
more trustees or directors; (ii) the beneficial ownership of which is evidenced
by transferable shares or by transferable certificates of beneficial interest;
(iii) that would be taxable as a domestic corporation but for the REIT
provisions of the Internal Revenue Code of 1986; (iv) that is neither a
financial institution nor an insurance company subject to certain provisions of
the Internal Revenue Code of 1986; (v) the beneficial ownership of which is held
by 100 or more persons; and (vi) during the last half of each taxable year not
more than 50% in value of the outstanding shares owned, directly or indirectly
through the application of certain attribution rules, by five or fewer
individuals (as defined in the Internal Revenue Code of 1986 to include certain
entities). In addition, certain other tests, described below, regarding the
nature of a REIT's income and assets, also must be satisfied. The Code provides
that conditions (i) through (iv), inclusive, must be met during the entire
taxable year and that condition (v) must be met during at least 335 days of a
taxable year of 12 months, or during a proportionate part of a taxable year of
less than 12 months. Conditions (v) and (vi) will not apply until after the
first taxable year for which an election is made to be taxed as a REIT.
For taxable years beginning after 1997, if a REIT complies with
Treasury Regulations that provide procedures for ascertaining the actual
ownership of its shares for such taxable year and the REIT did not know (and
with the exercise of reasonable diligence could not have known) that it failed
to meet the requirement of condition
909738.9
18
<PAGE>
(vi) above for such taxable year, the REIT will be treated as having met the
requirement of condition (vi) for such year.
We have satisfied the requirements set forth in (i) through (iv) above
and believe that we have sufficient diversity of share ownership to allow it to
satisfy conditions (v) and (vi) above. Our declaration of trust includes certain
restrictions regarding transfers of common shares that are intended to assist
the company in satisfying the share ownership requirements described in (v) and
(vi) above. See "Description of our Common Shares--Restrictions on Transfer"
(p.13).
In addition, an enterprise may not elect to become a REIT unless its
taxable year is the calendar year. Acadia's taxable year is the calendar year.
In the case of a REIT that is a partner in a partnership, such REIT
will be deemed to own its proportionate share of the assets of the partnership
and will be deemed to be entitled to the income of the partnership attributable
to such share. In addition, the character of the assets and gross income of the
partnership will retain the same character in the hands of the REIT for purposes
of the REIT requirements, including satisfying the income and asset tests
described herein. Thus, Acadia's proportionate share of the assets, liabilities
and items of income of the operating partnership, and of our subsidiary
partnerships, limited liability companies, joint ventures and business trusts in
which the company or the operating partnership have and will have an interest
are and will be treated as assets, liabilities and items of income of Acadia for
purposes of applying the requirements described herein, provided that the
operating partnership and our subsidiary partnerships are treated as
partnerships for federal income tax purposes. See "--Income Taxation of the
operating partnership, the Subsidiary Partnerships and Their Partners" (p.24).
Income Tests. In order for us to maintain qualification as a REIT, we
must satisfy two gross income tests annually. First, at least 75% of our gross
income (excluding gross income from prohibited transactions) for each taxable
year must be derived directly or indirectly from investments relating to real
property or mortgages on real property (including "rents from real property,"
dividends from qualified REITs and, in certain circumstances, interest) or from
"qualified temporary investment income" (generally, income attributable to the
temporary investment of new capital received by the REIT). Second, at least 95%
of our gross income (excluding gross income from prohibited transactions) for
each taxable year must be derived from such real property investments and from
dividends, interest, and gain from the sale or disposition of stock or
securities or from any combination of the foregoing. In addition, for taxable
years prior to 1998, short-term gain from the sale or other disposition of stock
or securities, gain from prohibited transactions and gain on the sale or other
disposition of real property held for less than four years (apart from
involuntary conversions and sales of foreclosure property) must have represented
less than 30% of the gross income of our predecessor (including gross income
from prohibited transactions) for each taxable year.
Substantially all of our income is expected to be rental income from
rents. In order for such income to qualify as "rents from real property" for
purposes of satisfying the 75% and 95% gross income tests, we must satisfy
several conditions. First, the amount of rent must not be based in whole or in
part on the income or profits of any person, although rents generally will
qualify as rents from real property if they are based on a fixed percentage of
receipts or sales. Second, rents received from a tenant will not qualify as
"rents from real property" if the company, or an owner of 10% or more of the
company, directly or constructively, owns 10% or more of such tenant (a "Related
Party Tenant"). Third, if rent attributable to personal property leased in
connection with a lease of real property is greater than 15% of the total rent
received under the lease, the portion of rent attributable to such personal
property will not qualify as "rents from real property." Finally we generally
must not operate or manage the property or furnish or render services to the
tenants of such property, other than through an "independent contractor" from
whom we derive no income. However, the "independent contractor" requirement does
not apply to the extent the services rendered by us are customarily furnished or
rendered in connection with the rental of the real property in the geographic
area in which the property is located. Based on our experience we believe that
all services provided to tenants by us will be considered "usually or
customarily rendered" in connection with the rental of retail and multi- family
space, although there can be no assurance that the IRS will not contend
otherwise.
909738.9
19
<PAGE>
We believe that our real estate investments, which include an allocable
share of income from the operating partnership, will give rise to income,
substantially all of which will qualify as "rents from real property" for
purposes of the 75% and 95% gross income tests. We will not (i) charge rent for
any property that is based in whole or in part on the income or profits of any
person (other than being based on a percentage of receipts of sales); (ii)
receive rents in excess of a de minimis amount from Related Party Tenants; (iii)
derive more than a de minimus amount of rents attributable to personal property
which constitute greater than 15% of the total rents received under the lease;
or (iv) perform non-customary services considered to be rendered to the occupant
of property, other than through an independent contractor from whom we derive no
income.
We may receive fees in exchange for the performance of certain
management activities for third parties with respect to properties in which we
do not own an interest. Such fees will result in nonqualifying income under the
95% and 75% gross income tests. If the sum of the income realized by us (whether
directly or through our interest in the operating partnership or our subsidiary
partnerships) which does not satisfy the requirements of the 95% gross income
test (collectively, "Non-Qualifying Income") exceeds 5% of our gross income for
any taxable year, our status as a REIT would be jeopardized. We have represented
that the amount of Non-Qualifying Income in any taxable year, including such
fees, will not exceed 5% of our annual gross income for any taxable year.
If we fail to satisfy one or both of the 75% or 95% gross income tests
for any taxable year, we may nevertheless qualify as a REIT for such year if we
are entitled to relief under certain provisions of the Internal Revenue Code of
1986. These relief provisions generally will be available if (i) the failure to
meet such tests was due to reasonable cause and not due to willful neglect, (ii)
a schedule of the sources of qualifying income is attached to the federal income
tax return of the company for such taxable year, and (iii) any incorrect
information on the schedule was not due to fraud with intent to evade tax. It is
not possible, however, to state whether in all circumstances we would be
entitled to the benefit of these relief provisions. As discussed above in
"--Taxation of our company," even if these relief provisions apply, a tax would
be imposed with respect to the excess net income. No similar relief provision
would apply if the 30% income test had been failed for a taxable year prior to
1998 and, in such case, Acadia would cease to qualify as a REIT. See"--Failure
to Qualify" (p.21).
Asset Tests. In order for us to qualify as a REIT, at the close of each
quarter of its taxable year we must also satisfy three tests relating to the
nature of the our assets. First, at least 75% of the value of its total assets
must be represented by real estate assets (which for this purpose include (i)
our allocable share of real estate assets held by partnerships in which the
company or a "qualified REIT subsidiary" owns an interest, (ii) stock or debt
instruments purchased with the proceeds of a share offering or a long-term (at
least five years) debt offering and held for not more than one year from the
date the company receives such proceeds, and (iii) shares in qualified REITs and
cash, cash items and government securities. Second, not more than 25% of our
total assets may be represented by securities other than those in the 75% asset
class. Third, of the investments included in the 25% asset class, the value of
any one issuer's securities may not exceed 5% of the value of our total assets,
and the company may not own more than 10% of any one issuer's outstanding voting
securities (excluding securities of a qualified REIT subsidiary or another
REIT).
We anticipate that we will be able to comply with these asset tests.
Acadia is currently deemed to, and will continue to be deemed to, hold directly
its proportionate share of all real estate and other assets of the operating
partnership and our subsidiary partnerships, and it should be considered to hold
its proportionate share of all assets deemed owned by those partnerships through
the partnerships' ownership of partnership interests in other partnerships. As a
result, the company intends to hold more than 75% of its assets as real estate
assets. In addition, we do not plan to hold any securities representing more
than 10% of any one issuer's voting securities, other than any qualified REIT
subsidiary, nor securities of any one issuer exceeding 5% of the value of our
gross assets.
After initially meeting the asset tests at the close of any quarter, we
will not lose our REIT status for failing to satisfy the asset tests at the end
of a later quarter solely by reason of changes in asset values. If the failure
to satisfy the asset tests results from an acquisition of securities or other
property during a quarter, the failure can be cured by disposition of sufficient
nonqualifying assets within 30 days after the close of that quarter. We intend
to maintain adequate records of the value of our assets to ensure compliance
with the asset tests and will take such other
909738.9
20
<PAGE>
action within 30 days after the close of any quarter as may be required to cure
any noncompliance. However, there can be no assurance that such other action
always will be successful.
Annual Distribution Requirements. In order to be taxed as a REIT, we
will be required to meet certain annual distribution requirements. We will have
to distribute dividends (other than capital gain dividends) to our shareholders
in an amount at least equal to (1) the sum of (a) 95% of our "REIT taxable
income" (computed without regard to the dividends paid deduction and the
company's net capital gain) and (b) 95% of the net income, if any, from
foreclosure property in excess of the special tax on income from foreclosure
property, minus (2) the sum of certain items of noncash income. Such
distributions must be paid in the taxable year to which they relate, or in the
following taxable year if declared before the company timely files its tax
return for such year and if paid on or before the first regular dividend payment
after such declaration.
To the extent that we do not distribute all of our net capital gain or
distribute at least 95% (but less than 100%) of our REIT taxable income, as
adjusted, we will be subject to tax on the undistributed portion, at regular
ordinary and capital gains corporate tax rates. Furthermore, if we fail to
distribute for each calendar year at least the sum of (a) 85% of our REIT
ordinary income for such year, (b) 95% of our REIT capital gain net income for
such year, and (c) any undistributed ordinary income and capital gain net income
from prior periods, we will be subject to a 4% excise tax on the excess of such
required distribution over the amounts actually distributed. We intend to make
timely distributions sufficient to satisfy this annual distribution requirement.
We expect that our taxable income typically will be less than our cash
flow, due to the allowance of depreciation and other noncash charges in
computing our taxable income. Accordingly, we anticipate that we generally will
have sufficient cash or liquid assets to enable it to satisfy the 95%
distribution requirement.
It is possible that from time to time we may not have sufficient cash
or other liquid assets to meet the 95% distribution requirement due to timing
differences between the actual receipt of income and actual payment of
deductible expenses and the inclusion of such income and deduction of such
expenses in arriving at our taxable income if the amount of nondeductible
expenses such as principal amortization or capital expenditures exceeds the
amount of noncash deductions. In the event that such situation occurs, in order
to meet the 95% distribution requirement, we may find it necessary to arrange
for short-term, or possibly long-term, borrowings or to pay dividends in the
form of consent dividends. If the amount of nondeductible expenses exceeds
noncash deductions, we may refinance our indebtedness to reduce principal
payments and borrow funds for capital expenditures.
Under certain circumstances in which an adjustment is made that affects
the amount that should have been distributed for a prior taxable year, we may be
able to rectify the failure to meet such distribution requirement by paying
"deficiency dividends" to shareholders in the later year, which may be included
in our deduction for dividends paid for the earlier year. Thus, we may be able
to avoid being taxed on amounts distributed as deficiency dividends; however, we
will be required to pay interest based upon the amount of any deduction taken
for deficiency dividends.
Failure to Qualify. If Acadia fails to qualify for taxation as a REIT
in any taxable year, and the relief provisions do not apply, we would be subject
to tax (including any applicable alternative minimum tax) on our taxable income
at regular corporate rates. Distributions to shareholders in any year in which
we fail to qualify will not be deductible by us nor will they be required to be
made. In such event, to the extent of current or accumulated earnings and
profits, all distributions to shareholders will be taxable as ordinary income,
and subject to certain limitations of the Internal Revenue Code of 1986,
corporate distributees may be eligible for the dividends-received deduction.
Unless entitled to relief under specific statutory provisions, we also will be
disqualified from taxation as a REIT for the four taxable years following the
year during which qualification was lost. It is not possible to state whether in
all circumstances we would be entitled to such statutory relief.
909738.9
21
<PAGE>
Taxation of U.S. Shareholders of the Company. As used in this
prospectus, the term "U.S. Shareholder" means a holder of our common shares that
(for United States federal income tax purposes) (i) is a citizen or resident of
the United States, (ii) is a corporation, partnership, or other entity created
or organized in or under the laws of the United States or of any political
subdivision thereof, (iii) is an estate the income of which is subject to United
States federal income taxation regardless of its source or (iv) is a trust if a
United States court is able to exercise primary supervision over the
administration of the trust and one or more United States persons have the
authority to control all substantial decisions of the trust. For any taxable
year for which Acadia qualifies for taxation as a REIT, amounts distributed to
taxable U.S. Shareholders will be taxed as follows:
Distributions Generally. Distributions to U.S. Shareholders, other than
capital gain dividends discussed below, will be taxable as ordinary income to
such holders up to the amount of the company's current or accumulated earnings
and profits. Such distributions are not eligible for the dividends-received
deduction for corporations. To the extent that the Acadia makes distributions in
excess of its current or accumulated earnings and profits, such distributions
will first be treated as a tax-free return of capital, reducing the tax basis in
the U.S. Shareholders' shares, and distributions in excess of the U.S.
Shareholders' tax basis in their respective shares will be taxable as an amount
realized from the sale of such shares. Dividends declared by the company in
October, November, or December of any year payable to a shareholder of record on
a specified date in any such month will be treated as both paid by the company
and received by the shareholder on December 31 of such year, provided that the
dividend is actually paid by the company during January of the following
calendar year. Shareholders may not include on their own income tax returns any
tax losses of the company.
We will be treated as having sufficient earnings and profits to treat
as a dividend any distribution by the company up to the greater of our current
or accumulated earnings and profits. As a result, shareholders may be required
to treat certain distributions that would otherwise result in a tax-free return
of capital as taxable dividends. Moreover, any "deficiency dividend" will be
treated as a "dividend" (an ordinary dividend or a capital gain dividend, as the
case may be), regardless of the company's earnings and profits.
Capital Gain Dividends. Dividends to U.S. Shareholders that are
properly designated by us as capital gain dividends will be treated as long-term
capital gain (to the extent they do not exceed the company's actual net capital
gain) for the taxable year without regard to the period for which the
shareholder has held his shares. Shareholders, however, may be required to treat
up to 20% of certain capital gain dividends as ordinary income. Capital gain
dividends are not eligible for the dividends-received deduction for
corporations.
Individual U.S. Shareholders and U.S. Shareholders that are estates and
trusts currently are subject to federal income tax on net capital gains at
different tax rates depending upon the nature of the gain and the holding period
of the asset disposed of. Although a REIT is taxed on its undistributed net
capital gains, for taxable years beginning after 1997, a REIT may elect to
include all or a portion of such undistributed net capital gains in the income
of its shareholders. In such event, the shareholder will receive a credit or
refund for the amount of tax paid by the REIT on such undistributed net capital
gains.
Passive Activity and Loss; Investment Interest Limitations.
Distributions by us and gain from the disposition of common shares ordinarily
will not be treated as passive activity income, and therefore, U.S. Shareholders
generally will not be able to apply any "passive losses" against such income.
Dividends from the company (to the extent they do not constitute a return of
capital) generally will be treated as investment income for purposes of the
investment interest limitation. Net capital gain from the disposition of common
shares and capital gain dividends generally will be excluded from investment
income unless the taxpayer elects to have the gain taxed at ordinary rates.
Dispositions of Common Shares. A U.S. Shareholder will recognize gain
or loss on the sale or exchange of common shares to the extent of the difference
between the amount realized on such sale or exchange and the holder's tax basis
in such shares. Such gain or loss generally will constitute long-term capital
gain or loss if the holder has held such shares for more than one year and, in
the case of an individual, will be taxed at a lower rate. Losses incurred on the
sale or exchange of common shares held for six months or less (after applying
certain holding period
909738.9
22
<PAGE>
rules), however, generally will be deemed long-term capital loss to the extent
of any long-term capital gain dividends received by the U.S. Shareholder with
respect to such shares.
Treatment of Tax-Exempt U.S. Shareholders. The Internal Revenue Service
has ruled that amounts distributed by a REIT out of its earnings and profits to
a tax-exempt pension trust did not constitute unrelated business taxable income.
Although rulings are merely interpretations of law by the Internal Revenue
Service and may be revoked or modified, based on this analysis, indebtedness
incurred by us in connection with the acquisition of an investment should not
cause any income derived from the investment to be treated as unrelated business
taxable income upon the distribution of such income as dividends to a tax-exempt
entity. A tax-exempt entity that incurs indebtedness to finance its purchase of
shares, however, will be subject to unrelated business taxable income by virtue
of the debt-financed income rules.
In addition, tax-exempt pension and certain other tax-exempt trusts
that hold more than 10% (by value) of the interests in a REIT may be required to
treat a percentage of REIT dividends as unrelated business taxable income. The
requirement applies only if (i) the qualification of the REIT depends upon the
application of a "look-through" exception to the restriction on REIT
shareholdings by five or fewer individuals, including such trusts and (ii) the
REIT is "predominantly held" by such trusts; i.e., either (A) at least one such
trust holds more than 25% (by value) of the interests in the REIT or (B) one or
more such trusts (each of whom own more than 10% by value of the interests in
the REIT) hold in the aggregate more than 50% (by value) of the interests in the
REIT. It is not anticipated that our REIT qualification will depend upon
application of the "look-through" exception or that we will be "predominantly
held" by such trusts.
Special Tax Considerations for Foreign Shareholders. The rules
governing United States federal income taxation of non-resident alien
individuals, foreign corporations, foreign partnerships, and foreign trusts and
estates (collectively, "Non-U.S. Shareholders") are complex, and the following
discussion is intended only as a summary of such rules. Prospective Non-U.S.
Shareholders should consult with their own tax advisors to determine the impact
of federal, state, and local income tax laws on an investment in the company,
including any reporting requirements, as well as the tax treatment of such an
investment under their home country laws.
In general, Non-U.S. Shareholders will be subject to United States
federal income tax with respect to their investment in the company if such
investment is "effectively connected" with the Non-U.S. Shareholder's conduct of
a trade or business in the United States. A corporate Non-U.S. Shareholder who
receives income that is (or is treated as) effectively connected with a United
States trade or business also may be subject to the branch profits tax under
section 884 of the Internal Revenue Code of 1986 which is payable in addition to
United States corporate income tax. The following discussion applies to Non-U.S.
Shareholders whose investment in the company is not so effectively connected. We
expect to withhold United States income tax, as described below, on the gross
amount of any distributions paid to a Non-U.S. Shareholder unless (i) a lower
treaty rate applies and the required form evidencing eligibility for that
reduced rate is filed with the company, or (ii) the Non-U.S. Shareholder files
an Internal Revenue Service Form 4224 or applicable successor form with the
company, claiming that the distribution is "effectively connected" income.
A distribution by us that is not attributable to gain from the sale or
exchange by us of a United States real property interest and that is not
designated by us as a capital gain dividend will be treated as an ordinary
income dividend to the extent made out of current or accumulated earnings and
profits. Generally, an ordinary income dividend will be subject to a United
States withholding tax equal to 30% of the gross amount of the distribution
unless such tax is reduced or eliminated by an applicable tax treaty. A
distribution of cash in excess of our earnings and profits will be treated first
as a return of capital that will reduce a Non-U.S. Shareholder's basis in its
holding of our common shares (but not below zero) and then as gain from the
disposition of such shares, the tax treatment of which is described under the
rules discussed below with respect to dispositions of shares.
Distributions by us that are attributable to gain from the sale or
exchange of a United States real property interest will be taxed to a Non-U.S.
Shareholder under the Foreign Investment in Real Property Tax Act of 1980. Under
the Foreign Investment in Real Property Tax Act, such distributions are taxed to
a Non-U.S. Shareholder as
909738.9
23
<PAGE>
if such distributions were gains "effectively connected" with a United States
trade or business. Accordingly, a Non- U.S. Shareholder will be taxed at the
normal capital gain rates applicable to a U.S. Shareholder (subject to any
applicable alternative minimum tax and a special alternative minimum tax in the
case of non-resident alien individuals). Distributions subject to the Foreign
Investment in Real Property Tax Act also may be subject to a 30% branch profits
tax in the hands of a foreign corporate shareholder that is not entitled to
treaty exemption.
We are required to withhold from distributions to Non-U.S.
Shareholders, and remit to the Internal Revenue Service, (i) 35% of designated
capital gain dividends (or, if greater, 35% of the amount of any distributions
that could be designated as capital gain dividends) and (ii) 30% of ordinary
dividends paid out of earnings and profits. In addition, if we designate prior
distributions as capital gain dividends, subsequent distributions, up to the
amount of such prior distributions not withheld against, will be treated as
capital gain dividends for purposes of withholding. A distribution in excess of
the company's earnings and profits may be subject to 30% dividend withholding if
at the time of the distribution it cannot be determined whether the distribution
will be in an amount in excess of our current or accumulated earnings and
profits. Tax treaties may reduce our withholding obligations. If the amount
withheld by us with respect to a distribution to a Non-U.S. Shareholder exceeds
the shareholder's United States tax liability with respect to such distribution
(as determined under the rules described in the two preceding paragraphs), the
Non- U.S. Shareholder may file for a refund of such excess from the Internal
Revenue Service. It should be noted that the 35% withholding tax rate on capital
gain dividends currently corresponds to the maximum income tax rate applicable
to corporations, but is higher than the 20% maximum rate on capital gains of
individuals.
Unless our common shares constitute a "United States real property
interest" within the meaning of the Foreign Investment in Real Property Tax Act
or are effectively connected with a U.S. trade or business, a sale of such
shares by a Non-U.S. Shareholder generally will not be subject to United States
taxation. Our common shares will not constitute a United States real property
interest if the company is a "domestically-controlled REIT." A
domestically-controlled REIT is a REIT in which at all times during a specified
testing period less than 50% in value of its shares is held directly or
indirectly by Non-U.S. Shareholders. It is currently believed that we are a
domestically-controlled REIT, and therefore that the sale of shares in our
company will not be subject to taxation under the Foreign Investment in Real
Property Tax Act. However, because the common shares are publicly traded, no
assurance can be given that the company will continue to be a
domestically-controlled REIT. Notwithstanding the foregoing, capital gain not
subject to the Foreign Investment in Real Property Tax Act will be taxable to a
Non-U.S. Shareholder if the Non-U.S. Shareholder is a nonresident alien
individual who is present in the United States for 183 days or more during the
taxable year and certain other conditions apply, in which case the nonresident
alien individual will be subject to a 30% tax on such individual's capital
gains. If our company did not constitute a domestically- controlled REIT,
whether a Non-U.S. Shareholder's, sale of common shares would be subject to tax
under the Foreign Investment in Real Property Tax Act as a sale of a United
States real property interest would depend on whether the shares were "regularly
traded" (as defined by applicable Treasury Regulations) on an established
securities market (e.g., the NYSE) and on the size of the Selling Shareholder's
interest in the company. If the gain on the sale of the company's shares were
subject to taxation under the Foreign Investment in Real Property Tax Act, the
Non-U.S. Shareholder would be subject to the same treatment as a U.S.
Shareholder with respect to such gain (subject to applicable alternative minimum
tax and a special alternative minimum tax in the case of nonresident alien
individuals). In any event, a purchaser of common shares from a Non-U.S.
Shareholder will not be required under the Foreign Investment in Real Property
Tax Act to withhold on the purchase price if the purchased common shares are
"regularly traded" on an established securities market or if our company is a
domestically-controlled REIT. Otherwise, under the Foreign Investment in Real
Property Tax Act the purchaser of our common shares may be required to withhold
10% of the purchase price and remit such amount to the Internal Revenue Service.
Income Taxation of the Operating Partnership, our Subsidiary
Partnerships and Their Partners. The following discussion summarizes certain
federal income tax considerations applicable to our investment in the operating
partnership and the indirect interest of our company in our subsidiary
partnerships.
Classification of the Operating Partnership and Our Subsidiary
Partnerships. We will be entitled to include in our income our distributive
share of the income and to deduct our distributive share of the losses of the
operating partnership (including the operating partnership's share of the income
or losses of our subsidiary partnerships) only
909738.9
24
<PAGE>
if the operating partnership (or our subsidiary partnerships) is classified for
federal income tax purposes as partnerships or, in the case of certain of our
subsidiary partnerships that are single-member limited liability companies, are
disregarded as an entity separate from such member, rather than as associations
taxable as corporations. With certain exceptions, an unincorporated domestic
organization formed on or after January 1, 1997 that has two or more members
will be treated as a partnership for federal income tax purposes absent an
election by such organization to be treated as an association taxable as a
corporation. Such an organization formed prior to January 1, 1997 was treated as
a partnership for federal income tax purposes rather than as a corporation for
periods prior to January 1, 1997 only if it had no more than two of the four
corporate characteristics that the Treasury Regulations applicable to such
organizations used to distinguish a partnership from a corporation for tax
purposes. These four characteristics were continuity of life, centralization of
management, limited liability, and free transferability of interests. Unless
such organization elects otherwise, the classification claimed by the
organization prior to January 1, 1997 will continue for periods on or after
January 1, 1997, and such classification will be respected for all prior periods
if the organization had a reasonable basis for such classification, the
organization and all members of the organization recognized the federal tax
consequences of any change in the organization's classification within the 60
months prior to January 1, 1997, and neither the organization nor any member was
notified in writing on or before May 8, 1996 that the classification of the
organization was under examination.
We expect that the operating partnership and all of our subsidiary
partnerships formed on and after January 1, 1997 either will have two or more
members at all times or, in the case of certain of our subsidiary partnerships,
will have a single member, and that none of those organizations will elect to be
treated as an association for federal income tax purposes. In addition, our
subsidiary partnerships in existence prior to January 1, 1997 and owned,
directly or indirectly, by the company and its predecessor claimed to be
partnerships for all periods prior to January 1, 1997 and were not notified in
writing on or before May 8, 1996 that such classification was under examination.
In the opinion of our tax counsel, which is based on the provisions of the
partnership agreement of the operating partnership and on certain factual
assumptions and representations, the operating partnership and our subsidiary
partnerships have been, continue to be and will be, treated as partnerships for
federal income tax purposes or, in the case of those subsidiary partnerships
that are single-member limited liability companies, will be disregarded as an
entity separate from such member. However, neither the operating partnership nor
any of our subsidiary partnerships have requested, nor do they intend to
request, a ruling from the Internal Revenue Service that they will be treated as
partnerships or disregarded, as applicable, for federal income tax purposes. Our
tax counsel's opinion is not binding on the Internal Revenue Service or the
courts.
A publicly-traded partnership is a partnership whose interests are
traded on an established securities market or are readily tradeable on a
secondary market (or the substantial equivalent thereof). A publicly traded
partnership will be treated as a corporation for federal income tax purposes
unless at least 90% of such partnership's gross income for each taxable year
consists of "qualifying income," which generally includes any income that is
qualifying income for purposes of the 95% gross income test applicable to REITs.
It is unclear whether the right of unit holders in the operating partnership to
exchange their units for shares of the company would be treated as the
"substantial equivalent" of the units being readily tradeable. However, because
it is anticipated that the operating partnership will meet the Qualifying Income
Exception, it should not be treated as a corporation under the publicly-traded
partnership rules. In addition, Treasury Regulations provide certain safe
harbors that, if applicable, will cause partnership interests to be treated as
interests that are not readily tradeable on a secondary market or the
substantial equivalent thereof. If for any reason the operating partnership or
one of our subsidiary partnerships were taxable as a corporation for federal
income tax purposes, our company would not be able to satisfy the requirements
for REIT status.
Partners, Not Partnerships, Subject to Tax. A partnership is not a
taxable entity for federal income tax purposes. Rather, a partner is required to
take into account its allocable share of a partnership's income, gains, losses,
deductions, and credits for any taxable year of the partnership ending within or
with the taxable year of the partner, without regard to whether the partner has
received or will receive any distributions from the partnership.
909738.9
25
<PAGE>
Partnership Allocations. Although a partnership agreement will
generally determine the allocation of income and losses among partners, such
allocations will be disregarded for tax purposes under section 704(b) of the
Internal Revenue Code of 1986 if they do not comply with the provisions of
section 704(b) of the Internal Revenue Code of 1986 and the Treasury Regulations
promulgated thereunder as to substantial economic effect.
If an allocation is not recognized for federal income tax purposes, the
item subject to the allocation will be reallocated in accordance with the
partners' interests in the partnership, which will be determined by taking into
account all of the facts and circumstances relating to the economic arrangement
of the partners with respect to such item. The allocations of taxable income and
loss of the operating partnership and our subsidiary partnerships are intended
to comply with the requirements of section 704(b) of the Internal Revenue Code
of 1986 and the Treasury Regulations promulgated thereunder.
Sale of Partnership Property. Generally, any gain realized by a
partnership on the sale of property held by the partnership for more than one
year and allocated to a partner will be long-term capital gain, except for any
portion of such gain that is treated as depreciation or cost recovery recapture.
However, under the REIT requirements imposed by the Internal Revenue Code of
1986, our share, as a partner, of any gain realized by the operating partnership
or our subsidiary partnerships on the sale of any property held as inventory or
other property held primarily for sale to customers in the ordinary course of a
trade or business will be treated as income from a prohibited transaction that
is subject to a 100% penalty tax. See "--Taxation of Our Company" (p.18).
Information Reporting Requirements and Backup Withholding Tax. We will
report to our U.S. Shareholders and the Internal Revenue Service the amount of
distributions paid during each calendar year and the amount of tax withheld, if
any. Under certain circumstances, U.S. Shareholders may be subject to backup
withholding at a rate of 31% with respect to distributions paid. Backup
withholding will apply only if the shareholder (i) fails to furnish its taxpayer
identification number (which, for an individual, would be such individual's
Social Security number), (ii) furnishes an incorrect taxpayer identification
number, (iii) is notified by the Internal Revenue Service that it has failed
properly to report payments of interest and dividends, or (iv) under certain
circumstances, fails to certify, under penalty of perjury, that it has furnished
a correct taxpayer identification number and has not been notified by the
Internal Revenue Service that it is subject to backup withholding for failure to
report interest and dividend payments. Backup withholding will not apply with
respect to payments made to certain exempt recipients, such as corporations and
tax-exempt organizations. U.S. Shareholders should consult their own tax
advisors regarding their qualification for exemption from backup withholding and
the procedure for obtaining such an exemption. Backup withholding is not an
additional tax. Rather, the amount of any backup withholding with respect to a
payment to a U.S. Shareholder will be allowed as a credit against such U.S.
Shareholder's United States federal income tax liability and may entitle such
U.S. Shareholder to a refund, provided that the required information is
furnished to the Internal Revenue Service.
Additional issues may arise pertaining to information reporting and
backup withholding with respect to Non- U.S. Shareholders. Non-U.S. Shareholders
should consult their tax advisors with respect to any such information reporting
and backup withholding requirements.
State and Local Tax Considerations. We are, and our shareholders may
be, subject to state or local taxation in various state or local jurisdictions,
including those in which the company, its shareholders, the operating
partnership or our subsidiary partnerships transact business or reside. The
state and local tax treatment of the company, the operating partnership, our
subsidiary partnerships and our shareholders may not conform to the federal
income tax consequences discussed above. Consequently, prospective shareholders
should consult their own tax advisors regarding the effect of state and local
tax laws on their investment in the company.
Possible Federal Tax Developments. The rules dealing with federal
income taxation are constantly under review by the Internal Revenue Service, the
Treasury Department, Congress and the courts. New federal tax legislation or
other provisions may be enacted into law or new interpretations, rulings or
Treasury Regulations could be adopted or judicial decisions rendered, all of
which could affect the taxation of the company and its shareholders. No
prediction can be made as to the likelihood of passage of any new tax
legislation or other provisions either directly
909738.9
26
<PAGE>
or indirectly affecting the company and its stockholders. Consequently, the tax
treatment described herein may be modified prospectively or retroactively by
such legislative, judicial or administrative action.
SELLING SHAREHOLDERS
As described elsewhere in this prospectus, the Selling Shareholders are
persons who either have received our restricted common shares or may receive
common shares in exchange for their OP Units. The following table sets forth, as
of March 2, 2000 the name of each Selling Shareholder, the number of common
shares beneficially owned by each Selling Shareholder, and the number and
percentage of our common shares to be beneficially owned by each Selling
Shareholder following the offering to which this prospectus relates. Since
Selling Shareholders may sell all, some or none of their shares that are to be
offered by this prospectus, no estimate can be made of the aggregate number of
common shares offered by this prospectus, or the aggregate number of common
shares that will be owned by each Selling Shareholder upon completion of the
offering to which this prospectus relates. Except as otherwise noted below, none
of the Selling Shareholders has, within the past three years, had any position,
office or other material relationship with Acadia.
The common shares offered by this prospectus may be offered from time
to time directly by the Selling Shareholders named below or by pledgees, donees,
transferees or other successors in interest thereto:
<TABLE>
<CAPTION>
Number of Percentage to
Maximum Shares to Be Be
Shares Number of Beneficially Beneficially
Beneficially Shares Which Owned After Owned After
Owned Prior to May Be Sold this the
Name this Offering(1) Hereunder Offering(2) Offering(2)
- ------------------------------------------ -------------------- ----------------- ---------------- -------------------
<S> <C> <C> <C> <C>
RD New York VI, LLC 134,661(3) 134,661 0 *
Yale University 6,138,492(4) 6,138,492 0 *
Yale University Retirement Plan for
Staff Employees 403,994(5) 403,994 0 *
Vanderbilt University 1,346,647(5) 1,346,647 0 *
Carnegie Corporation of New York 942,653(5) 942,653 0 *
Howard Hughes Medical Institute 2,266,667(6) 2,266,667 0 *
Harvard Private Capital Realty, Inc. 2,000,000(6)(7) 2,000,000 0 *
The Board of Trustees of the Leland
Stanford Junior University 2,133,333(6) 2,133,333 0 *
TRW Master Trust 1,200,000(6) 1,200,000 0 *
Five Arrows Realty Securities LLC 3,266,667(8)(9) 2,266,667 1,000,000 3.89(10)
Chestnut Hill Trust 76,426(11) 76,426 0 *
Naperville Associates 166,248(12) 166,248 0 *
Global Investors Corp. 468,072(13) 468,072 0 *
Jack Nash 364,393(14) 364,393 0 *
Brown University 685,997(15) 685,997 0 *
</TABLE>
909738.9
27
<PAGE>
<TABLE>
<CAPTION>
Number of Percentage to
Maximum Shares to Be Be
Shares Number of Beneficially Beneficially
Beneficially Shares Which Owned After Owned After
Owned Prior to May Be Sold this the
Name this Offering(1) Hereunder Offering(2) Offering(2)
- ------------------------------------------ -------------------- ----------------- ---------------- -------------------
<S> <C> <C> <C> <C>
Halil Bezman 225,288(16) 225,288 0 *
SRRD Associates, L.P. 731,089(16) 731,089 0 *
Samada Limited (as Trustee of the
Forest Trust) 1,855,974(17) 1,855,974 0 *
Pragusa One Inc. 892,030(18) 892,030 0 *
L & J Realty Company 2,000 2,000 0 *
Ross Dworman(19) 799,149(20) 595,149 204,000 *
Kenneth Bernstein(21) 395,223(22) 261,691 133,532 *
RD Woonsocket, Inc.(23) 7,540 7,540 0 *
RD Abington, Inc.(23) 3,684 3,684 0 *
RD Missouri, Inc.(23) 2,883 2,883 0 *
RD Merrilville, Inc.(23) 7,799 7,799 0 *
RD Elmwood, Inc.(23) 5,205 5,205 0 *
RD Village, Inc.(23) 9,545 9,545 0 *
RD Marley, Inc.(23) 6,807 6,807 0 *
RD Soundview Inc.(23) 6,323 6,323 0 *
RD Bloomfield Inc.(23) 5,399 5,399 0 *
RD Hobson, Inc.(24) 5,189 5,189 0 *
RD Townline, Inc.(24) 5,036 5,036 0 *
RD Whitegate, Inc.(24) 1,650 1,650 0 *
RD Crossroads Inc.(24) 8,443 8,443 0 *
RD Smithtown Inc.(24) 7,642 7,642 0 *
RD New York, LLC(25) 103,936 103,936 0 *
Homkor Colony, L.P. 31,333 31,333 0 *
G.O. Associates Limited Partnership 38,877(26) 38,877 0 *
Great Universal Capital Corp. 220,300 220,300 0 *
Cheerful Corp. 118,391(27) 118,391 0 *
</TABLE>
909738.9
28
<PAGE>
<TABLE>
<CAPTION>
Number of Percentage to
Maximum Shares to Be Be
Shares Number of Beneficially Beneficially
Beneficially Shares Which Owned After Owned After
Owned Prior to May Be Sold this the
Name this Offering(1) Hereunder Offering(2) Offering(2)
- ------------------------------------------ -------------------- ----------------- ---------------- -------------------
<S> <C> <C> <C> <C>
Wanda Dworman 8,475(27) 8,475 0 *
David Dworman 2,825(27) 2,825 0 *
Evan Frazier Partners(28) 19,739 19,739 0 *
Evan Frazier Realty LLC(29) 294,434 294,434 0 *
RD Greenbelt, Inc.(30) 55,011 55,011 0 *
KAL Partners, L.P. 102,068 102,068 0 *
Michael A. Young 34,005 34,005 0 *
Mindy White(31) 17,029 17,029 0 *
S&J Roth Revocable Trust 25,517 25,517 0 *
Rabinowitz Family 1991 Trust 21,247 21,247 0 *
Rabinowitz Family 1986 Trust 21,247 21,247 0 *
Perry Kamerman(32) 154,866(33) 50,000 104,866 *
Joel Braun(34) 84,334(35) 6,667 77,667 *
Eric Newberg 8,000 8,000 0 *
Robert Masters(36) 66,888(37) 4,667 62,221 *
Jay A. Kaiser 38,667(38) 38,667(39) 0 *
H. Robert Holmes 25,067(38) 25,067(39) 0 *
Steve Bollerman 1,333(38) 1,333(39) 0 *
AmCap Incorporated 44,267(38) 44,267(39) 0 *
Lennox Securities, Inc. 185,600(38) 185,600(39) 0 *
TOTALS 26,719,319 -- --
==========
</TABLE>
- ---------------------
(*) Less than 1%.
(1) Beneficial ownership based upon information provided by the respective
Selling Shareholders and is based upon a common share price of $7.50.
Beneficial ownership will differ at alternate share prices due to
allocations of distributions as provided in the various partnership
agreements of the partnerships which are currently the
909738.9
29
<PAGE>
record owners of these shares as noted in the applicable footnotes.
Assumes that all OP Units held by or attributable to the person are
exchanged for common shares.
(2) Assumes sale of all common shares registered hereunder.
(3) As of the date of this prospectus, the record owner of 134,395 of these
common shares is RD Properties, L.P. VI, the record owner of 133 common
shares is RD Properties, L.P. VIA, and the record owner of the
remaining 133 common shares is RD Properties, L.P., VIB. All three
limited partnerships are expected to distribute their shares to their
partners, including the Selling Shareholder, in accordance with the
terms of their respective partnership agreements, prior to their resale
pursuant to this prospectus. The LLC is 80% owned by Dworman and 20%
owned by Mr. Bernstein.
(4) As of the date of this prospectus, the record owner of 3,366,616 of
these common shares is RD Properties, L.P. VI, and the record owner of
the remaining 2,771,876 common shares is RD Properties, L.P. V. Both
limited partnerships are expected to distribute their shares to their
partners, including the Selling Shareholder, in accordance with the
terms of their respective partnership agreements, prior to their resale
pursuant to this prospectus.
(5) As of the date of this prospectus, the record owner of these common
shares is RD Properties, L.P. VI, which is expected to distribute its
shares to its partners, including the Selling Shareholder, in
accordance with the terms of its partnership agreement, prior to their
resale pursuant to this prospectus.
(6) As of the date of this prospectus, the record owner of these common
shares is RD Properties, L.P. VIA, which is expected to distribute its
shares to its partners, including the Selling Shareholder, in
accordance with the terms of its partnership agreement, prior to their
resale pursuant to this prospectus.
(7) Charlesbank Capital Partners, LLC ("Charlesbank"), a Massachusetts
limited liability company, pursuant to an agreement among Charlesbank,
the President and Fellows of Harvard College and certain individuals,
has sole power to direct the vote of these shares and may be deemed the
beneficial owner of these shares.
(8) As of the date of this prospectus, the record owner of 2,266,667 of
these common shares is RD Properties, L.P. VIB, which is expected to
distribute its shares to its partners, including the Selling
Shareholder, in accordance with the terms of its partnership agreement,
prior to their resale pursuant to this prospectus. In a series of open
market purchases between September 3, 1998 and April 20, 1999, Five
Arrows Realty Securities L.L.C. acquired 1,000,000 common shares as
reported in the statement on Schedule 13D filed by Acadia on September
15, 1998, as amended by Amendment No.1 on May 21, 1999, and Amendment
No. 2 on May 24, 1999.
(9) Rothschild Realty Investors II L.L.C., a Delaware limited liability
company and sole managing member of Five Arrows Realty Securities
L.L.C., may be deemed the beneficial owner of these shares.
(10) Assumes the Selling Shareholder sold all its shares which are covered
by this prospectus (i.e., 2,266,667) and no Selling Shareholder who
holds OP Units has converted such OP Units to common shares.
(11) As of the date of this prospectus, the record owner of 60,267 of these
common shares is RD Properties, L.P. II, the record owner of 4,520
common shares is Columbia VGH Investors and the record owner of the
remaining 11,639 common shares is RD Bloomfield Associates Limited
Partnership II.
(12) As of the date of this prospectus, the record owner of 60,267 of these
common shares is RD Properties, L.P. II, and the record owner of the
remaining 105,981 common shares is RD Bloomfield Associates Limited
Partnership II. Both limited partnerships are expected to distribute
their shares to their partners, including the Selling Shareholder, in
accordance with the terms of their respective partnership agreements,
prior to their resale pursuant to this prospectus.
909738.9
30
<PAGE>
(13) As of the date of this prospectus, the record owner of 362,091 of these
common shares is RD Properties, L.P. II and the record owner of the
remaining 105,981 common shares is RD Bloomfield Associates Limited
Partnership II.
(14) As of the date of this prospectus, the record owner of 60,267 of these
common shares is RD Properties, L.P. II, the record owner of 48,024
common shares is Columbia VGH Investors, the record owner of 105,981
common shares is RD Bloomfield Associates Limited Partnership II and
the record owner of the remaining 150,121 common shares is RD
Properties, L.P. III.
(15) As of the date of this prospectus, the record owner of 120,663 of these
common shares is RD Properties, L.P. II, the record owner of 300,242
common shares is RD Properties, L.P. III, the record owner of 138,603
common shares is RD Properties, L.P., V, the record owner of 31,074
common shares is Columbia VGH Investors and the record owner of the
remaining 95,415 common shares is RD Bloomfield Associates, L.P. II.
All five limited partnerships are expected to distribute their shares
to their partners, including the Selling Shareholder, in accordance
with the terms of their respective partnership agreements, prior to
their resale pursuant to this prospectus.
(16) As of the date of this prospectus, the record owner of these common
shares is RD Properties, L.P. III, which is expected to distribute its
shares to its partners, including the Selling Shareholder, in
accordance with the terms of its partnership agreement, prior to their
resale pursuant to this prospectus.
(17) As of the date of this prospectus, the record owner of 300,242 of these
common shares is RD Properties, L.P. III, and the record owner of the
remaining 1,555,732 common shares is RD Properties, L.P. IV. Both
limited partnerships are expected to distribute their shares to their
partners, including the Selling Shareholder, in accordance with the
terms of their respective partnership agreements, prior to their resale
pursuant to this prospectus.
(18) As of the date of this prospectus, the record owner of 225,288 of these
common shares is RD Properties, L.P. III, and the record owner of the
remaining 666,742 common shares is RD Properties, L.P. IV. Both limited
partnerships are expected to distribute their shares to their partners,
including the Selling Shareholder, in accordance with the terms of
their respective partnership agreements, prior to their resale pursuant
to this prospectus.
(19) Mr. Dworman is currently Chairman and Chief Executive Officer of
Acadia.
(20) Reflects the common shares beneficially owned by Mr. Dworman in his
individual capacity (either directly or indirectly). The 737,399 common
shares he directly owns in his individual capacity include: (i) 533,399
shares issuable upon the conversion of OP Units, (ii) 200,000 shares
issuable upon the exercise of stock options and (iii) 4,000 shares
purchased on the open market. The 61,750 common shares he indirectly
owns in his individual capacity (through his equity interests in
various limited partnerships) are attributable to him as follows:
Partnership Name Beneficial Interest
- ---------------- -------------------
RD Properties, L.P. II 11,578
RD Town Square Associates 5,362
Columbia VGH Investors 1,129
RD Properties, L.P. III 21,233
RD Properties, L.P. IV 22,448
------
909738.9
31
<PAGE>
Partnership Name Beneficial Interest
- ---------------- -------------------
61,750
======
In the aggregate, Mr. Dworman is deemed to beneficially own 14,086,915
common shares, which in addition to the shares held by Mr. Dworman in
his individual capacity (x) as noted above (799,149) or (y) as noted in
footnote (26) (3,887), include:
(i) 12,848,990 shares which represent 80% of the total common
shares of RD Properties, L.P. VI, RD Properties, L.P. VIA and
RD Properties, L.P. VIB (collectively the "RD Funds") which
Mr. Dworman is deemed to beneficially own as an 80% managing
member of RD New York VI LLC, the general partner of the RD
Funds and indirect owner of 134,661 shares. Mr. Dworman's 80%
share of the 134,661 shares is 107,728.
(ii) 55,185 common shares beneficially owned by Mr. Dworman by
virtue of his 100% equity interest in those entities
designated by footnote (23).
(iii) 22,368 common shares beneficially owned by Mr. Dworman by
virtue of his 80% equity interest in those entities designated
by footnote (24).
(iv) 83,149 common shares beneficially owned by Mr. Dworman by
virtue of his 80% equity interest in RD New York LLC as
described in footnote (25).
(v) 15,791 common shares beneficially owned by Mr. Dworman virtue
of his 80% equity interest in Evan Frazier Partners as
described in footnote (28).
(vi) 214,937 common shares beneficially owned by Mr. Dworman by
virtue of his 73% interest in Evan Frazier Realty LLC as
described in footnote (29).
(vii) 43,459 common shares beneficially owned by Mr. Dworman by
virtue of his 79% equity interest in RD Greenbelt, Inc. as
described in footnote (30).
(viii) Mr. Dworman owns 3,499 common shares and 388 shares,
respectively, in his own name through the partnership
described in footnote 26 and through RD G.O. Properties, Inc.,
a wholly owned corporation.
(21) Mr. Bernstein is currently President of the trust.
(22) Reflects the common shares beneficially owned by Mr. Bernstein in his
individual capacity. These shares include: (i) 261,691 shares issuable
upon the conversion of OP Units, (ii) 100,000 shares issuable upon the
exercise of stock options, (iii) 25,532 restricted shares issued to Mr.
Bernstein on January 3, 2000 (which shares are not being registered
under this registration statement) and (iv) 8,000 shares purchased on
the open market. In the aggregate, Mr. Bernstein is deemed to
beneficially own 3,711,182 common shares which, in addition to the
shares held by Mr. Bernstein in his individual capacity, include:
(i) 3,212,248 shares which represent 20% of the total common
shares of the RD Funds which Mr. Bernstein is deemed to
beneficially own as a 20% managing member of RD New York VI
LLC, the general partner of the RD Funds and owner of 134,661
shares. Mr. Bernstein's 20% share of the 134,551 shares is
26,933.
(ii) 5,593 common shares beneficially owned by Mr. Bernstein by
virtue of his 20% equity interest in those entities designated
by footnote (24).
909738.9
32
<PAGE>
(iii) 20,787 common shares beneficially owned by Mr. Bernstein by
virtue of his 20% equity interest in RD New York LLC as
described in footnote (25).
(iv) 3,948 common shares beneficially owned by Mr. Bernstein by
virtue of his 20% equity interest in Evan Frazier Partners as
described in footnote (28).
(v) 61,831 common shares beneficially owned by Mr. Bernstein by
virtue of his 21% interest in Evan Frazier Realty LLC as
described in footnote (29).
(vi) 11,552 common shares beneficially owned by Mr. Bernstein by
virtue of his 21% interest in RD Greenbelt, Inc. as described
in footnote (30).
(23) Mr. Dworman is the sole shareholder of this corporation.
(24) Messrs. Dworman and Bernstein own 80% and 20%, respectively, of the
issued and outstanding shares.
(25) Messrs. Dworman and Bernstein own 80% and 20%, respectively, of this
limited liability corporation.
(26) Mr. Dworman owns 3,499 common shares and 388 shares, respectively,
through this partnership in his own name and through RD G.O.
Properties, Inc., a wholly owned corporation.
(27) As of the date of this prospectus, the record owner of these common
shares in Columbia VGH Investors.
(28) Messrs. Dworman and Bernstein own 80% and 20%, respectively, of this
partnership.
(29) Messrs. Dworman and Bernstein own 73% and 21%, respectively, of this
partnership.
(30) Messrs. Dworman and Bernstein own 79% and 21%, respectively, of the
issued and outstanding shares.
(31) Mrs. White is married to Gregory White, a trustee of Acadia.
(32) Mr. Kamerman is currently a Senior Vice President and Treasurer of
Acadia.
(33) These shares include: (i) 50,000 shares issuable upon the conversion of
OP Units, (ii) 103,334 shares issuable upon the exercise of stock
options and (iii) 1,532 restricted shares issued to Mr. Kamerman on
January 3, 2000 (which shares are not being registered under this
registration statement).
(34) Mr. Braun is currently a Senior Vice President of Acadia.
(35) These shares include: (i) 6,667 shares issuable upon the conversion of
OP Units, (ii) 76,667 shares issuable upon the exercise of stock
options and (iii) 1,000 shares purchased on the open market.
(36) Mr. Masters is currently a Senior Vice President and General Counsel of
Acadia.
(37) These shares include: (i) 4,667 shares issuable upon the conversion of
OP Units, (ii) 56,667 shares issuable upon the exercise of stock
options, (iii) 2,554 restricted shares issued to Mr. Masters on January
3, 2000 (which shares are not being registered under this registration
statement) and (iv) 3,000 shares purchased on the open market.
(38) As of the date of this prospectus, this Selling Shareholder holds
preferred OP Units which were issued pursuant to a certain Agreement of
Contribution dated November 8, 1999. Preferred OP Units are convertible
into regular OP Units at a rate of approximately 133.33 regular OP
Units for each preferred OP Unit. Regular OP
909738.9
33
<PAGE>
Units are convertible into common shares on a one-for-one basis.
Amounts set forth in the table reflect the "as converted" number of
common shares held by each Selling Shareholder as of the date of this
prospectus.
(39) These shares are subject to a lock-up agreement that, subject to
certain limited exceptions, would prohibit the sale or other
disposition of such common shares pursuant to this prospectus or
otherwise until November 16, 2000.
909738.9
34
<PAGE>
PLAN OF DISTRIBUTION
This prospectus relates to the offer and sale from time to time by the
persons listed under the Selling Shareholders section of this prospectus of up
to 26,719,319 common shares. We have issued 16,061,238 restricted common shares
to certain Selling Shareholders and may issue further shares to the extent
certain other Selling Shareholders exchange their 10,658,081 OP Units, including
294,934 OP Units issuable upon the conversion of preferred OP Units, held by
them in our subsidiary, the operating partnership, for an equal number of common
shares. We have registered the Selling Shareholders' common shares for resale to
provide them with freely tradeable securities. However, registration of their
shares does not necessarily mean that they will offer or sell any of their
shares. We will not receive any proceeds from the offering or sale of their
shares.
Selling Shareholders (or pledgees, donees, transferees or other
successors in interest) may sell the common shares to which this prospectus
relates from time to time on the New York Stock Exchange, where our common
shares are listed for trading, in other markets where our common shares are
traded, in negotiated transactions, through underwriters or dealers, directly to
one or more purchasers, through agents or in a combination of such methods of
sale. They will sell the common shares at prices which are current when the
sales take place or at other prices to which they agree. All costs, expenses and
fees in connection with the registration of the common shares offered hereby
will be borne by us. Brokerage commissions and similar selling expenses, if any,
attributable to the sale of common shares offered hereby will be borne by the
Selling Shareholders.
The Selling Shareholders may effect such transactions by selling the
common shares offered hereby directly to purchasers or through broker-dealers,
which may act as agents or principals. Such broker-dealers may receive
compensation in the form of discounts, concessions, or commissions from the
Selling Shareholders and/or the purchasers of the common shares offered hereby
for whom such broker-dealers may act as agents or to whom they sell as
principal, or both (which compensation as to a particular broker-dealer might be
in excess of customary commissions).
In connection with an underwritten offering, underwriters or agents may
receive compensation in the form of discounts, concessions or commissions from a
Selling Shareholder or from purchasers of the shares which are the subject of
this prospectus for whom they may act as agents, and underwriters may sell the
shares which are the subject of this prospectus to or through dealers, and such
dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters and/or commissions from the purchasers for
whom they may act as agents. We have agreed to indemnify each Selling
Shareholder against certain liabilities, including liabilities arising under the
Securities Act. The Selling Shareholders may agree to indemnify any agent,
dealer or broker-dealer that participates in transactions involving sales of the
common shares offered hereby against certain liabilities, including liabilities
arising under the Securities Act.
The shares which are the subject of this prospectus may be sold
directly or through broker-dealers acting as principal or agent, or pursuant to
a distribution by one or more underwriters on a firm commitment or best-efforts
basis. The methods by which the shares which are the subject of this prospectus
may be sold include: (a) a block trade in which the broker-dealer so engaged
will attempt to sell such shares as agent but may position and resell a portion
of the block as principal to facilitate the transaction; (b) purchases by a
broker-dealer as principal and resale by such broker- dealer for its account
pursuant to this prospectus; (c) ordinary brokerage transactions and
transactions in which the broker solicits purchasers; (d) an exchange
distribution in accordance with the rules of the New York Stock Exchange; (e)
privately negotiated transactions; and (f) underwritten transactions. The
Selling Shareholders and any underwriters, dealers or agents participating in
the distribution of the shares which are the subject of this prospectus may be
deemed to be "underwriters" within the meaning of the Securities Act, and any
profit on the sale of such shares by the Selling Shareholders and any
commissions received by any such broker-dealers may be deemed to be underwriting
commissions under the Securities Act. None of the Selling Shareholders has
informed us as to their plan of distribution.
909738.9
35
<PAGE>
EXPERTS
The financial statements and schedule included in the annual report on
form 10-K for the fiscal year ended December 31, 1998 incorporated by reference
in this prospectus and elsewhere in this registration statement have been
audited by Ernst & Young LLP. These audited financial statements are
incorporated in this prospectus by reference in reliance upon the authority of
Ernst & Young LLP as experts in accounting and auditing.
LEGAL MATTERS
Certain legal matters will be passed upon for us by Battle Fowler LLP,
New York, New York. The validity of the common shares offered hereby will be
passed upon for us by Berliner, Corcoran & Rowe L.L.P., Washington, D.C. In
addition, the description of federal income tax matters contained in the section
of this prospectus entitled "Federal Income Tax Considerations" is based on the
opinion of Battle Fowler LLP.
909738.9
36
<PAGE>
No dealer, salesperson or other
individual has been authorized to give
any information or make any
representations not contained in this
prospectus in connection with the 26,719,319 Shares
offering covered by this prospectus.
If given or made, such information or
representation must not be relied upon
as having been authorized by Acadia or
the Selling Shareholders. This
prospectus does not constitute an Acadia Realty Trust
offer to sell, or a solicitation of an
offer to buy, the common shares in any
jurisdiction where, or to any person Common Shares
to whom, it is unlawful to make such
offer or solicitation. Neither the
delivery of this prospectus nor any
sale made hereunder shall, under any
circumstances, create an implication
that there has not been any change in
the facts set forth in this prospectus
or in the affairs of our company since
the date hereof. ______________________
______________________
PROSPECTUS
TABLE OF CONTENTS
______________________
______________________
Prospectus
, 2000
Page
----
WHERE YOU CAN FIND MORE INFORMATION..........................................5
INCORPORATION OF CERTAIN DOCUMENTS BY
REFERENCE....................................................................5
FORWARD-LOOKING INFORMATION..................................................6
PROSPECTUS SUMMARY...........................................................7
RISK FACTORS.................................................................8
OUR COMPANY.................................................................12
DESCRIPTION OF OUR COMMON SHARES............................................12
USE OF PROCEEDS.............................................................17
INTERESTS OF NAMED EXPERTS AND COUNSEL......................................17
FEDERAL INCOME TAX CONSIDERATIONS...........................................17
SELLING SHAREHOLDERS........................................................27
PLAN OF DISTRIBUTION........................................................35
EXPERTS.....................................................................36
LEGAL MATTERS...............................................................36
909738.9
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Set forth below is an estimate of the approximate amount of the fees
and expenses (other than underwriting commissions and discounts) payable by the
Registrant in connection with the issuance and distribution of the common
shares.
SEC registration fee................................................$35,489.94
Printing expenses......................................................$700.00
Accounting fees and expenses.........................................$3,500.00
Legal fees and expenses.............................................$40,000.00
Miscellaneous expenses..............................................$10,000.00
Total.................................................$89,689.94
==========
Item 15. Indemnification of Directors and Officers.
Our bylaws and declaration of trust authorize our company, to the
extent permitted under Maryland law, to indemnify its trustees and officers in
their capacity as such. Section 8-301(15) of the Maryland General Corporation
Law ("MGCL") permits a Maryland REIT to indemnify or advance expenses to
trustees and officers to the same extent as is permitted for directors and
officers of a Maryland corporation under the MGCL The MGCL requires a Maryland
corporation (unless its charter provides otherwise, which our declaration of
trust does not) to indemnify a director or officer who has been successful, on
the merits or otherwise, in the defense of any proceeding to which he is made a
party by reason of his service in that capacity. The MGCL permits a Maryland
corporation to indemnify its present and former directors and officers, among
others, against judgments, penalties, fines, settlements and reasonable expenses
actually incurred by them in connection with any proceeding to which they may be
made a party by reason of their service in those or other capacities unless it
is established that (a) the act or omission of the director or officer was
material to the matter giving rise to the proceeding and (i) was committed in
bad faith or (ii) was the result of active and deliberate dishonesty, (b) the
director or officer actually received an improper personal benefit in money,
property or services or (c) in the case of any criminal proceeding, the director
or officer had reasonable cause to believe that the act or omission was
unlawful. However, a Maryland corporation may not indemnify for an adverse
judgment in a suit by or in the right of the corporation or for a judgment of
liability on the basis that a personal benefit was improperly received, unless
in either case a court orders indemnification and then only for expenses. In
addition, the MGCL permits a corporation to advance reasonable expenses to a
director or officer upon the corporation's receipt of a written affirmation by
the director or officer of his or her good faith belief that he or she has met
the standard of conduct necessary for indemnification by the corporation and a
written undertaking by such director or officer on his or her behalf to repay
the amount paid or reimbursed by the corporation if it shall ultimately be
determined that the standard of conduct was not met.
Our bylaws also permit the company, subject to the approval of our
board of trustees, to indemnify and advance expenses to any person who served as
a predecessor of the company in any of the capacities described above and to any
employee or agent of the company or a predecessor of the company.
In addition to the above, our company has purchased and maintains
insurance on behalf of all of its trustees and executive officers against
liability asserted against or incurred by them in their official capacities with
the company, whether or not the company is required or has the power to
indemnify them against the same liability.
909738.9
38
<PAGE>
Item 16. Exhibits.
<TABLE>
<S> <C> <C>
3.1(a) Declaration of Trust of the registrant, as amended Incorporated by reference to the
copy thereof filed as an exhibit to
the registrant's Form 10-K for the
fiscal year ended December 31,
1994, filed with the SEC on March
17, 1995 (SEC File No. 001-12002)
3.1(b) Fourth Amendment to Declaration of Trust of the registrant Incorporated by reference to the
copy thereof filed as an Exhibit to
the registrant's Form10-Q for the
quarter ended September 30, 1998,
filed with the SEC on November
16, 1998
3.2 Bylaws of the registrant Incorporated by reference to the
copy thereof filed as an exhibit to
the registrant's Form S-11 filed with
the SEC on March 25, 1993 (SEC
File No. 33-60008)
4.1 Specimen Share Certificate Incorporated by reference to Exhibit
4.1 to Amendment No. 3 to the
registrant's registration statement on
Form S-11 filed with the SEC on
May 23, 1993
5.1 Opinion of Berliner, Corcoran & Rowe L.L.P. regarding the Filed herewith
legality of the securities being registered
8.1 Opinion of Battle Fowler LLP regarding certain tax matters Filed herewith
10.1(a) Agreement of Limited Partnership of the operating partnership Incorporated by reference to the copy
thereof filed as an exhibit to
Amendment No.3 to the registrant's
Form S-11 filed with the SEC on March
25, 1993.
10.1(b) First, Second and Third Amendments to the Agreement of Incorporated by reference to the
Limited Partnership of the operating partnership copy thereof filed as an exhibit to
the registrant's Form 10-K for the
fiscal year ended December 31, 1998,
filed with the SEC on March 31, 1999
10.1(c) Amended and Restated Agreement of Limited Partnership of Filed herewith
the operating partnership
10.1(d) First and Second Amendments to the Amended and Restated Filed herewith
Agreement of Limited Partnership of the operating partnership
23.1 Consent of Berliner, Corcoran & Rowe L.L.P. (included in Filed herewith
Exhibit 5.1)
23.2 Consent of Battle Fowler LLP (included in Exhibit 8.1) Filed herewith
23.3 Consent of Ernst & Young LLP (New York, New York) Filed herewith
</TABLE>
909738.9
39
<PAGE>
<TABLE>
<S> <C> <C>
24.1 Power of Attorney (included on signature page hereto) Filed herewith
99.1(a) Registration Rights and Lock-Up Agreement (RD Capital Filed herewith
Transaction)
99.1(b) Registration Rights and Lock-Up Agreement (Pacesetter Filed herewith
Transaction)
</TABLE>
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high and of the estimated maximum offering range may be reflected in the form of
a prospectus pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the effective
registration statement; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not
apply if the registration statement is on Form S-3, Form S-8 or Form F-3, and
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offering therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the provisions referred to in Item 15 of this
Registration Statement, or otherwise, the registrant has been advised that in
the opinion of the SEC such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer, or controlling
person of the registrant in the successful defense of any action, suit, or
proceeding) is asserted by such
909738.9
40
<PAGE>
director, officer, or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question as to whether such indemnification by it is against
public policy as expressed in the act, and will be governed by the final
adjudication of such issue.
909738.9
41
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Acadia
Realty Trust certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Port Washington, State of New York, on this 2nd
day of March, 2000.
ACADIA REALTY TRUST
A Maryland real estate investment trust (registrant)
By: /s/ Ross Dworman
----------------------
Name: Ross Dworman
Title: Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Ross Dworman and Kenneth F. Bernstein,
and each of them, his true and lawful attorneys-in-fact and agents, with full
power or substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, granting unto said attorneys-in-fact
and agents full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises as fully to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitutes, may
lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Ross Dworman Chairman of the Board of Trustees and Chief March 2, 2000
- --------------------------- Executive Officer (Principal Executive Officer)
Ross Dworman
/s/ Kenneth F. Bernstein President and Trustee March 2, 2000
- ----------------------------
Kenneth F. Bernstein
/s/ Perry S. Kamerman Treasurer and Senior Vice President March 2, 2000
- --------------------------
Perry S. Kamerman
/s/ Martin L. Edelman Trustee March 2, 2000
- ---------------------------
Martin L. Edelman
/s/ Marvin L. Levine Trustee March 2, 2000
- ----------------------------
Marvin L. Levine
/s/ Lawrence J. Longua Trustee March 2, 2000
- --------------------------
Lawrence J. Longua
/s/ Gregory White Trustee March 2, 2000
- -----------------------------
Gregory White
</TABLE>
909738.9
42
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
3.1(a) Declaration of Trust of the registrant, as
amended
3.1(b) Fourth Amendment to Declaration of Trust
of the registrant
3.2 Bylaws of the registrant
4.1 Specimen Share Certificate
5.1 Opinion of Berliner, Corcoran & Rowe
L.L.P. regarding the legality of the
securities being registered
8.1 Opinion of Battle Fowler LLP regarding
certain tax matters
10.1(a) Agreement of Limited Partnership of the
operating partnership
10.1(b) First, Second and Third Amendments to
the Agreement of Limited Partnership of
the operating partnership
10.1(c) Amended and Restated Agreement of
Limited Partnership of the operating
partnership
10.1(d) First and Second Amendments to the
Amended and Restated Agreement of
Limited Partnership of the operating
partnership
23.1 Consent of Berliner, Corcoran & Rowe
L.L.P. (included in Exhibit 5.1)
23.2 Consent of Battle Fowler LLP (included in
Exhibit 8.1)
23.3 Consent of Ernst & Young LLP (New
York, New York)
24.1 Power of Attorney (included on signature
page hereto)
99.1(a) Registration Rights and Lock-Up
Agreement (RD Capital Transaction)
99.1(b) Registration Rights and Lock-Up
Agreement (Pacesetter Transaction)
909738.9
43
EXHIBIT 5.1
OPINION OF BERLINER, CORCORAN & ROWE L.L.P.
BERLINER CORCORAN & ROWE L.L.P
ATTORNEY-AT-LAW
1101 SEVENTEENTH STREET N.W.
SUITE 1100
WASHINGTON, D.C. 20036-4798
TELEPHONE (202) 293-5555 FAX (202) 290-9035
E-mail [email protected]
March 1, 2000
Acadia Realty Trust
20 Soundview Marketplace
Port Washington, New York 11050
re: Acadia Realty Trust Registration of Common Shares of Beneficial
Interest on Form S-3
Ladies and Gentlemen:
We have acted as special counsel for Acadia Realty Trust, a Maryland
real estate investment trust (the "Trust"), in connection with the preparation
and filing of a registration statement on Form S-3 (the "Registration
Statement") under the Securities Act of 1933, as amended, pursuant to which the
Trust intends to register an aggregate of 26,719,319 shares of its Common Shares
of Beneficial Interest, par value $.001 per share ("Common Shares"), for resale
by the "Selling Shareholders" listed in the Registration Statement and the
prospectus included therein. This opinion is being furnished to you as a
supporting document for such Registration Statement.
In this connection we have examined and considered the original or
copies, certified or otherwise identified to our satisfaction, of the following:
(i) The Declaration of Trust of the Trust including all
amendments thereto, as in effect on the date hereof,
(ii) The By-Laws of the Trust, including all amendments
thereto, as in effect on the date hereof,
(iii) The Resolutions of the Board of Trustees of the Trust,
adopted at meetings of the Board of Trustees on April 14, 1998 and May 28, 1998,
which among other things: (a) authorize the issuance of such number of Common
Shares and limited partnership interests in Acadia Realty Limited Partnership
("OP Units") as is necessary to effectuate the transactions contemplated by the
Contribution and Share Purchase Agreement dated April 15, 1998 (the "RDC
Transaction") and (b) reserve for issuance such number of Common Shares as is
necessary to effectuate the RDC Transaction,
<PAGE>
BERLINER, CORCORAN & ROWE
Acadia Realty Trust 2 March 1, 2000
(iv) The Resolutions of the Board of Trustees of the Trust,
adopted pursuant to Unanimous Written Consent of the Trustees on February 17,
2000, which, among other things: (a) authorize the issuance of such number of
Common Shares and OP Units as is necessary to effectuate the transactions
contemplated by the Agreement of Contribution dated November 8, 1999 (the
"Pacesetter Transaction"), (b) reserve for issuance such number of Common Shares
and OP Units as is necessary to effectuate the Pacesetter Transaction, and (c)
authorize the filing of the Registration Statement,
(v) The Registration Statement filed with the Securities and
Exchange Commission, and
(vi) The Certificate of the Secretary of the Trust dated
March 1, 2000.
In addition, we have obtained from public officials, officers and other
representatives of the Trust, and others such certificates, documents and
assurances as we considered necessary or appropriate for purposes of rendering
this opinion. In our examination of the documents listed in (i)-(vi) above and
the other certificates and documents referred to herein, we have assumed the
legal capacity of all natural persons, the genuineness of all signatures on
documents not executed in our presence and facsimile or photostatic copies of
which we reviewed, the authenticity of all documents submitted to us as
originals, the conformity to the original documents of all documents submitted
to us as certified or photostatic copies and the authenticity of the originals
of such documents. Without limiting the generality of the foregoing we have
relied upon the representations of the Trust as to the accuracy and completeness
of (i) the Declaration of Trust and the By-laws of the Trust; (ii) the
Registration Statement; and (iii) the representations of the Trust that (a) the
resolutions of the Trustees, dated April 14, 1998 and May 28, 1998, (b) the
resolutions of the Trustees dated February 17, 2000, (c) the Declaration of
Trust, and (d) the By- laws of the Trust have not been rescinded, modified or
revoked and no proceedings for the amendment, modification, or rescission of any
of such documents are pending or contemplated.
Based upon the assumptions, qualifications, and limitations set forth
herein, and relying upon the statements of fact contained in the documents that
we have examined, we are of the opinion, as of the date hereof, that when the
Registration Statement becomes effective and any conditions for the issuance of
Common Shares have been complied with (including, for example, conversion of OP
Units in accordance with the Amended and Restated Agreement of Limited
Partnership of Acadia Realty Limited Partnership and conversion of OP Units
converted from preferred OP Units), the Common Shares shall constitute legally
issued, fully paid and nonassessable, and valid and binding obligations of the
Trust.
In addition to the assumptions set forth above, the opinions set forth
herein are also subject to the following qualifications and limitations:
<PAGE>
BERLINER, CORCORAN & ROWE
Acadia Realty Trust 3 March 1, 2000
(a) The opinions expressed in this letter are based upon the assumption
that the Trust will keep the Registration Statement effective.
(b) The opinions expressed in this letter are specifically limited to
the matters set forth in this letter and no other opinions should be inferred
beyond the matters expressly stated herein.
(c) The opinions expressed in this letter are based on the laws of the
jurisdictions referred to in the next paragraph as they may be in effect on the
date hereof and we assume no obligation to supplement this opinion if any
applicable laws change after the date hereof.
The opinions herein expressed are limited in all respects solely to
matters governed by the internal laws of the State of Maryland, and the federal
laws of the United States of America, insofar as each may be applicable. We
express no opinion herein with respect to matters of local, county or municipal
law, or with respect to the laws, regulations, or ordinances of local agencies
within any state. Subject to the foregoing, any reference herein to "law" means
applicable constitutions, statutes, regulations and judicial decisions. To the
extent that this opinion relates to the laws of the State of Maryland, it is
based upon the opinion of members of this firm who are members of the bar of
that State.
This opinion letter is rendered solely to you in connection with the
above referenced matter and may not be relied upon by you for any other purpose
or delivered to, or quoted or relied upon by, any other person without our prior
written consent. This opinion letter is rendered as of the date hereof, and we
assume no obligation to advise you of any facts, circumstances, events or
developments that may be brought to our attention in the future, which facts,
circumstances, events or developments may alter, affect or modify the opinions
or beliefs expressed herein.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Matters" in the Registration Statement and the prospectus included therein.
Very truly yours,
/s/ Berliner, Corcoran & Rowe,L.L.P.
------------------------------------
<PAGE>
909738.9
44
EXHIBIT 8.1
OPINION OF BATTLE FOWLER LLP
212-856-7188
212-856-7810
[email protected]
March 1, 2000
Acadia Realty Trust
20 Soundview Marketplace
Port Washington, NY 11050
Re: Tax opinion
Gentlemen:
We have acted as counsel to Acadia Realty Trust, a Maryland
real estate investment trust (the "Company"), in connection with the
registration of up to 26,719,319 common shares of beneficial interest of the
Company (the "Shares"), $0.001 par value. The Shares may be offered for sale by
selling stockholders (the "Offering") pursuant to a registration statement (the
"Registration Statement") to be filed by the Company with the Securities and
Exchange Commission on Form S-3. All of the net proceeds of the Offering will be
retained by the selling stockholders and none of the net proceeds of the
Offering will be contributed to the Company or to Acadia Realty Limited
Partnership, a Delaware limited partnership (the "Operating Partnership"). You
have requested our opinion as to certain federal income tax matters in
connection with the Offering.
The Operating Partnership owns equity interests in existing
shopping centers (and certain other real property) and associated personal
property (the "Properties"). The Operating Partnership owns some of the
Properties directly and owns the remaining Properties through limited liability
companies or subsidiary partnerships (collectively, the "Subsidiary
Partnerships").
928395.1
<PAGE>
2
Acadia Realty Trust March 1, 2000
In connection with the opinions rendered below, we have
examined the following:
1. the Declaration of Trust of the Company, as amended, as
filed with the Secretary of State of Maryland;
2. the Company's Amended Bylaws;
3. the Registration Statement, including the prospectus
contained as part of the Registration Statement (the "Prospectus");
4. the Amended and Restated Agreement of Limited Partnership
of the Operating Partnership dated as of March 22, 1999 (the "Operating
Partnership Agreement"), among the Company, as general partner and several other
limited partners;
5. the first and second amendments to the Operating
Partnership Agreement dated, respectively, as of November 15, 1999 and November
18, 1999;
6. the partnership agreements or operating agreements of the
Subsidiary Partnerships; and
7. such other documents as we have deemed necessary or
appropriate for purposes of this opinion.
In connection with the opinions rendered below, we have
assumed generally that:
1. each of the documents referred to above has been duly
authorized, executed, and delivered; is authentic, if an original, or is
accurate, if a copy; and has not been amended;
2. during each taxable year, including its short taxable year
ending December 31, 1993, the Company has operated and will operate in such a
manner that will make the representations contained in the Representation
Letter, dated March 1, 2000 and executed by the President of the Company (the
"Representation Letter"), true for such years;
3. the Company will not make any amendments to its
organizational documents or the Operating Partnership Agreement, after the date
of this opinion, that would affect the Company's qualification as a real estate
investment trust (a "REIT") for any taxable year; and
928395.1
<PAGE>
3
Acadia Realty Trust March 1, 2000
4. neither the Operating Partnership or any Subsidiary
Partnership will make an election to be taxed as an association taxable as a
corporation or other than as a partnership pursuant to Treasury Regulation
ss.301.7701-3(c).
In connection with the opinions rendered below, we also have
relied upon the correctness of the representations contained in the
Representation Letter.
For purposes of our opinions, we made such factual and legal
inquiries, including examination of the documents set forth above, as we have
deemed necessary or appropriate for purposes of our opinion. For purposes of
rendering our opinion, however, we have not made an independent investigation of
the facts contained in the documents and assumptions set forth above, the
representations set forth in the Representation Letter, or the Prospectus. We
consequently have relied upon the representations in the Representation Letter
that the information presented in such documents or otherwise furnished to us is
accurate and complete in all material respects relevant to our opinion.
We have acted as counsel to the Company since August 12, 1998.
Accordingly, the first full taxable year for which we have acted as counsel to
the Company is the taxable year ending December 31, 1999, and our opinion
rendered below does not address any period before January 1, 1999. We have
assumed that, for periods prior to January 1, 1999, the Company qualified to be
taxed as a REIT pursuant to sections 856 through 860 of the Code and that the
Operating Partnership and the Subsidiary Partnerships were properly treated for
federal income tax purposes as partnerships and not as associations taxable as
corporations or as publicly traded partnerships.
In addition, to the extent that any of the representations
provided to us in the Representation Letter are with respect to matters set
forth in the Internal Revenue Code of 1986, as amended (the "Code"), or the
Treasury regulations thereunder (the "Regulations"), we have reviewed with the
individual making such representation the relevant portion of the Code and the
applicable Regulations and are reasonably satisfied that such individual
understands such provisions and is capable of making such representations.
Based on the documents and assumptions set forth above, the
representations set forth in the Representation Letter, and the discussion in
the Prospectus under the caption "Federal Income Tax Considerations" (which is
incorporated herein by reference), we are of the opinion that:
928395.1
<PAGE>
4
Acadia Realty Trust March 1, 2000
(a) commencing with the Company's taxable year ending December
31, 1999, the Company qualified and will qualify to be taxed as a REIT
pursuant to sections 856 through 860 of the Code, and the Company's
proposed method of operation will enable it to continue to meet the
requirements for qualification and taxation as a REIT under the Code;
(b) the descriptions of the law and the legal conclusions
contained in the Prospectus under the caption "Federal Income Tax
Considerations" are correct in all material respects, and the
discussion contained therein fairly summarizes the federal tax
considerations that are material to a holder of the Common Shares; and
(c) the Operating Partnership and the Subsidiary Partnerships
will be treated for federal income tax purposes as partnerships and not
as associations taxable as corporations or as publicly traded
partnerships.
We assume no obligation to advise you of any changes in our opinion subsequent
to the delivery of this opinion letter. The Company's qualification and taxation
as a REIT depends upon the Company's ability to meet on a continuing basis,
through actual annual operating and other results, the various requirements
under the Code with regard to, among other things, the sources of its gross
income, the composition of its assets, the level of its distributions to
stockholders, and the diversity of its stock ownership. We will not review on a
continuing basis the Company's compliance with the documents or assumptions set
forth above, or the representations set forth in the Representation Letter.
Accordingly, no assurance can be given that the actual results of the Company's
operations the sources of its income, the nature of its assets, the level of the
Company's distributions to its stockholders and the diversity of the Company's
stock ownership for any given taxable year will satisfy the requirements for
qualification and taxation as a REIT.
The foregoing opinions are based on current provisions of the
Code and the Regulations, published administrative interpretations thereof, and
published court decisions. The Internal Revenue Service has not issued
Regulations or administrative interpretations with respect to various provisions
of the Code relating to REIT qualification. No assurance can be given that the
law will not change in a way that will prevent the Company from qualifying as a
REIT, or the Operating Partnership or the Subsidiary Partnerships from being
classified as partnerships for federal income tax purposes.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement. We also consent to the references to Battle
Fowler LLP under the captions "Federal Income Tax Considerations" and "Legal
Matters" in the Prospectus.
928395.1
<PAGE>
5
Acadia Realty Trust March 1, 2000
The foregoing opinions are limited to the federal income tax
matters addressed herein, and no other opinions are rendered with respect to
other federal tax matters or to any issues arising under the tax laws of any
state or locality. We undertake no obligation to update the opinions expressed
herein after the date of this letter.
Very truly yours,
/s/ Battle Fowler LLP
---------------------
928395.1
<PAGE>
909738.9
45
EXHIBIT 10.1(c)
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
OF THE OPERATING PARTNERSHIP
ACADIA REALTY LIMITED PARTNERSHIP
AMENDED & RESTATED LIMITED PARTNERSHIP AGREEMENT
THIS AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT (this
"Agreement") has been executed and delivered as of the 22nd day of March, 1999,
by and among Acadia Realty Trust, as general partner (the "General Partner"), a
Maryland real estate investment trust, and each of the persons listed as limited
partners on Annex A, (the "Limited Partners") (the General Partner and the
Limited Partners being each a "Partner" and collectively, the "Partners").
BACKGROUND
A. Acadia Realty Limited Partnership (the "Partnership") was duly
organized on May 13, 1993 under the Delaware Revised Limited Partnership Act
under the name "Mark Centers Limited Partnership."
B. The Limited Partnership Agreement of the Partnership was entered
into as of June 3, 1993 (the "Original Agreement") and was amended by the First
Amendment dated as of June 6, 1996, the Second Amendment dated as of August 12,
1998, and the Third Amendment dated as of December 31, 1998.
C. The General Partner completed its initial public offering in
May,1993 and certain of the transactions contemplated by the Original Agreement
have previously been completed or are no longer contemplated.
D. The Partners desire to amend and restate the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Partners agree as follows:
1. Partnership.
-----------
1.1 Continuation. The Partners hereby continue the Partnership which
was formed upon the filing of the Certificate of Limited Partnership of the
Partnership (the "Certificate") with the Secretary of State of the State of
Delaware in compliance with the provisions of the Act, for the limited purposes
set forth herein. Except as otherwise specifically provided in this Agreement,
the rights and obligations of the Partners and the management and termination of
the Partnership shall be governed by the Act.
796300.10
<PAGE>
1.2 Name. The name of the Partnership is "Acadia Realty Limited
Partnership" or such other name as may from time to time be selected by the
General Partner, provided that prompt notice of any such other name selected
shall be given to the other Partners. The General Partner shall cause to be
executed and filed on behalf of the Partnership such assumed or fictitious name
certificates as may be required to be filed in connection with the business of
the Partnership.
1.3 Registered Office and Agent. The address of the Partnership's
registered office in the State of Delaware is 32 Loockerman Square, Suite 100L,
Dover, Kent County, Delaware 19901, and the name of the Partnership's registered
agent at such address is The Prentice-Hall Corporation System, Inc. The General
Partner, in its discretion, may from time to time change such registered office
and agent.
2. Definitions.
-----------
2.1 As used in this Agreement, the following terms shall have the
meanings set forth respectively after each:
"Act" shall mean the Delaware Revised Limited Partnership Act, as
amended from time to time, and any successor statute.
"Adjusted Capital Account Deficit" shall mean, at any time, the then
deficit balance in the Capital Account of a Partner, after giving effect to the
following adjustments:
(i) credit to such Capital Account any amounts that such Partner is
obligated to restore or is deemed obligated to restore as described in the
penultimate sentences of Regulations Section 1.704-2(g)(1) and Regulations
Section 1.704-2(i)(5), or any successor provisions; and
(ii) debit to such Capital Account the items described in Regulations
Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6).
"Agreement" shall mean this Amended and Restated Limited Partnership
Agreement, as it may be amended from time to time.
"Bankruptcy" of a Partner shall mean (a) the filing by a Partner of a
voluntary petition seeking liquidation, reorganization, arrangement or
readjustment, in any form, of its debts under Title 11 of the United States Code
(or corresponding provisions of future laws) or any other Federal or state
insolvency law, or a Partner's filing an answer consenting to or acquiescing in
any such petition, (b) the making by a Partner of any assignment for the benefit
of its creditors or the admission by a Partner in writing of its inability to
pay its debts as they mature, or (c) the expiration of sixty (60) days after the
filing of an involuntary petition under Title 11 of the United States Code (or
corresponding provisions of future laws), seeking an
796300.10
-2-
<PAGE>
application for the appointment of a receiver for the assets of a Partner,or an
involuntary petition seeking liquidation, reorganization, arrangement or
readjustment of its debts under any other Federal or state insolvency law,
provided that the same shall not have been vacated, set aside or stayed within
such 60-day period.
"Capital Account" shall mean the capital account maintained by the
Partnership for each Partner as described in Section 3.4 hereof.
"Capital Cash Flow" shall have the meaning provided in Section 8.2
hereof.
"Capital Contribution" shall mean, when used in respect of a Partner,
the initial capital contribution of such Partner as set forth in Section 3.1
hereof and any other amounts of money or the fair market value of other property
contributed by such Partner to the capital of the Partnership pursuant to the
terms of this Agreement, including the Capital Contribution made by any
predecessor holder of the Partnership Interest of such Partner.
"Code" shall mean the Internal Revenue Code of 1986, as the same may
be amended from time to time, and any successor statute.
"Contributing Partner" shall have the meaning provided in Section
3.2(B)hereof.
"Depreciation" shall mean for any fiscal year or portion thereof of
the Partnership an amount equal to the depreciation, amortization or other cost
recovery deduction allowable with respect to an asset for such period for
Federal income tax purposes, except that if the Gross Asset Value of an asset
differs from its adjusted basis for Federal income tax purposes at the beginning
of such period, Depreciation shall be an amount that bears the same relationship
to such beginning Gross Asset Value as the depreciation, amortization or cost
recovery deduction in such period for Federal income tax purposes bears to such
beginning adjusted tax basis; provided, however, that if the adjusted basis for
Federal income tax purposes of an asset at the beginning of such period is zero,
Depreciation shall be determined with reference to such beginning Gross Asset
Value using any reasonable method selected by the General Partner.
"General Partner" means Acadia Realty Trust or any successor entity.
"Gross Asset Value" means, with respect to any Partnership asset, the
asset's adjusted basis for Federal income tax purposes, except as follows:
(i) The initial Gross Asset Value of any asset contributed by a
Partner to the Partnership shall be the gross fair market value of such
asset, as determined by the General Partner;
796300.10
-3-
<PAGE>
(ii) The Gross Asset Value of all Partnership assets shall be adjusted
to equal their respective gross fair market value, as determined by the
General Partner, as of the following times: (a) the acquisition of an
additional interest in the Partnership by any new or existing Partner in
exchange for more than a de minimis Capital Contribution; (b) the
distribution by the Partnership to a Partner of more than a de minimis
amount of Partnership property as consideration for an interest in the
Partnership; and (c) the liquidation of the Partnership within the meaning
of Regulations Section 1.704-1(b)(2)(ii)(g); provided, however, that
adjustments pursuant to clauses (a) and (b) above shall be made only if
the General Partner reasonably determines that such adjustments are
necessary or appropriate to reflect the relative economic interests of the
Partners in the Partnership;
(iii) The Gross Asset Value of any Partnership asset distributed to
any Partner shall be adjusted to equal the gross fair market value of such
asset on the date of distribution as determined by the General Partner;
and
(iv) The Gross Asset Values of Partnership assets shall be increased
(or decreased) to reflect any adjustments to the adjusted basis of such
assets pursuant to Code Sections 734(b) or 743(b), but only to the extent
that such adjustments are taken into account in determining Capital
Accounts pursuant to Regulations Section 1.704- 1(b)(2)(iv)(m) and
paragraph (vi) of the definition of Profits and Losses and Section 7.3(G)
hereof; provided, however, that Gross Asset Values shall not be adjusted
pursuant to this paragraph (iv) to the extent the General Partner
determines that an adjustment pursuant to paragraph (ii) above is
necessary or appropriate in connection with a transaction that would
otherwise result in an adjustment pursuant to this paragraph (iv).
If the Gross Asset Value of an asset has been determined or adjusted
pursuant to paragraph (i), (ii) or (iv) above, such Gross Asset Value shall
thereafter be adjusted by the Depreciation taken into account with respect to
such asset for purposes of computing Profits and Losses.
"Limited Partner" shall mean the Persons listed as limited partners on
Annex A or any Person (i) who becomes a Limited Partner pursuant to the terms
and conditions of this Agreement, and (ii) who holds a Partnership Interest.
"Limited Partners" means all such Persons.
"Nonrecourse Deductions" has the meaning set forth in Regulations
Sections 1.704-2(b)(1) and 1.704-2(c).
"Operating Cash Flow" shall have the meaning provided in Section 8.1
hereof.
796300.10
-4-
<PAGE>
"OP Units" shall mean those units of common Partnership Interest
issued prior to the date hereof and any additional units of common Partnership
Interest issued pursuant to this Agreement.
"Partner Nonrecourse Debt" has the meaning set forth in Regulations
Section 1.704-2(b)(4).
"Partner Nonrecourse Debt Minimum Gain" has the meaning set forth in
Regulations Section 1.704-2(i)(2).
"Partner Nonrecourse Deductions" has the meaning set forth in
Regulations Section 1.704-2(i).
"Partners" shall mean, collectively, the General Partner and each
Limited Partner, or any additional or successor partners of the Partnership.
Reference to a Partner shall be to any one of the Partners.
"Partnership Interest" shall mean the ownership interest of a Partner
in the Partnership at any particular time, including the right of such Partner
to any and all benefits to which such Partner may be entitled as provided in
this Agreement, and to the extent not inconsistent with this Agreement, under
the Act, together with the obligations of such Partner to comply with all of the
terms and provisions of this Agreement and of the Act; provided, however, that
in the event the General Partner issues classes of Partnership Interests to
Limited Partners pursuant to Section 3.2(B) hereof other than the OP Units, the
term Partnership Interests shall mean with respect to each class of Partnership
Interests, a fractional, undivided share of the Partnership Interests of all
Partners in such class.
"Partnership Minimum Gain" has the meaning set forth in Regulations
Section 1.704-3(b)(3) and 1.704-2(d).
"Percentage Interest" shall mean with respect to a Partner holding a
Partnership Interest of any class issued hereunder, its interest in such class
determined by dividing the Partnership Interests of such class owned by such
Partner by the total number of Partnership Interests of such class then
outstanding multiplied by the aggregate Percentage Interest allocable to such
class of Partnership Interests. For such time or times as the Partnership shall
at any time have outstanding more than one class of Partnership Interests, the
Percentage Interest attributable to each class of Partnership Interests shall be
determined as set forth in Section 3.2(C) hereof.
"Person" shall mean any individual, partnership, corporation, trust,
limited liability company or other entity.
796300.10
-5-
<PAGE>
"Preferred Units" shall mean those units of preferred Partnership
Interest issued prior to the date hereof and any additional units of preferred
Partnership Interest issued pursuant to this Agreement.
"Profits" and "Losses" shall mean for each fiscal year or portion
thereof an amount equal to the Partnership's items of taxable income or loss for
such year or period, determined in accordance with section 703(a) of the Code
with the following adjustments:
(i) any income which is exempt from Federal income tax and not
otherwise taken into account in computing Net Profits or Net Losses shall
be added to (or subtracted from) taxable income (or loss);
(ii) any expenditures of the Partnership described in Code Section
705(a)(2)(B) or treated as Section 705(a)(2)(B) expenditures under
Regulations Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into
account in computing Profits or Losses, will be subtracted from (or added
to) taxable income (or loss);
(iii) in the event that the Gross Asset Value of any Partnership asset
is adjusted pursuant to the definition of Gross Asset Value contained in
this Section 2, the amount of such adjustment shall be taken into account
as gain or loss from the disposition of such asset for purposes of
computing Profits and Losses;
(iv) gain or loss resulting from any disposition of Partnership assets
with respect to which gain or loss is recognized for Federal income tax
purposes shall be computed by reference to the Gross Asset Value of the
property disposed of, notwithstanding that the adjusted tax basis of such
property differs from its Gross Asset Value;
(v) in lieu of the depreciation, amortization and other cost recovery
deductions taken into account in computing such taxable income or loss,
there shall be taken into account Depreciation for such fiscal year or
other period;
(vi) to the extent an adjustment to the adjusted tax basis of any
Partnership asset pursuant to Code Section 734(b) is required pursuant to
Regulations Section 1.704-1(b)(2)(iv)(m)(4) to be taken into account in
determining Capital Accounts as a result of a distribution other than in
complete liquidation of a Partner's Partnership Interest, the amount of
such adjustment shall be treated as an item of gain (if the adjustment
increases the basis of the asset) or loss (if the adjustment decreases the
basis of the asset) from the disposition of the asset and shall be taken
into account for purposes of computing Profits and Losses; and
(vii) any items specifically allocated pursuant to Section 7.3 or
Section 7.4 hereof shall not be considered in determining Profits or
Losses.
796300.10
-6-
<PAGE>
"Real Estate Investment Trust" shall mean such term as defined in
Section 856 of the Code.
"Regulations" shall mean the Income Tax Regulations, including
Temporary Regulations, promulgated under the Code, as such regulations may be
amended from time to time (including corresponding provisions of succeeding
regulations).
"REIT Requirements" is defined in Section 5(C) hereof.
"Unit Certificates" is defined in Section 3.2(A) hereof.
3. Capital.
-------
3.1 Initial Capital. The Partners have previously made the Capital
Contributions set forth on Annex B:
3.2 Issuance of Partnership Interests.
A. Outstanding Partnership Interests; Certificates. The aggregate
total of all Partnership Interests outstanding as of the date of this Agreement
is set forth on Annex A. Such Partnership Interests may, but shall not be
required to be, represented by certificates ("Unit Certificates") indicating
each Partner's Partnership Interests. In the event the General Partner issues a
class of Partnership Interests other than OP Units, the Unit Certificates
representing Partnership Interests of such class shall indicate the class,
terms, preferences and other restrictions or rights of such class of Partnership
Interests.
B. Additional Issuances of Partnership Interests. From time to
time, the General Partner, subject to the provisions of this Section 3.2(B) and
Section 3.2(D), shall cause the Partnership to issue additional Partnership
Interests (i) to existing or newly-admitted Partners (including itself) in
exchange for the contribution by a Partner (the "Contributing Partner") of
additional Capital Contributions to the Partnership, or (ii) to the General
Partner upon the issuance by the General Partner of (x) additional common shares
of beneficial interest in the General Partner ("Common Shares") not in
connection with the exchange of OP Units as provided in Section 3.8 hereof, or
(y) other capital shares, whether common or preferred (together with Common
Shares, the "Securities") provided that any net proceeds received by the General
Partner as a result of the issuance of such additional Securities are
contributed to the Partnership as additional Capital Contributions, in
accordance with Section 3.3(B) hereof (it being understood that the General
Partner may issue Common Shares in connection with the General Partner's 1993
Share Option Plan, the General Partner's Restricted Share Plan and employee
incentive plans that may, from time to time, be in effect, without receiving any
proceeds and that the issuance of such shares shall nonetheless entitle the
General Partner to additional OP Units).
796300.10
-7-
<PAGE>
The number of Partnership Interests issued to the Contributing Partner
under clause (i) of this Section 3.2(B) shall be equal to either (a) such amount
as may be fixed by agreement between the General Partner, in the General
Partner's sole discretion, and the Contributing Partner or (b) the quotient
(rounded to the nearest whole number) arrived at by dividing (x) the Gross Asset
Value of the property contributed as additional Capital Contributions (net of
any debt to which such property is subject or assumed by the Partnership in
connection with such contribution) by (y) the Market Price (as hereinafter
defined). The number of OP Units issued to the General Partner under clause (ii)
of this Section 3.2(B) shall be equal to the number of Common Shares issued. As
used in this Section 3.2(B), "Market Price" means the average, for the most
recent twenty (20) trading days for the Common Shares preceding the date on
which such OP Units are to be issued pursuant to this Section 3.2(B), of the
last reported sale price per Common Share at the close of trading on each such
date as reported by the Wall Street Journal (New York Edition) or such other
reputable stock price reporting service as may be selected by the General
Partner.
Any additional Partnership Interests which may be issued may be OP
Units or other Partnership Interests in one or more classes, or one or more
series of such classes, with such designations, preferences and relative,
participating, optional or other special rights, powers and duties, including
rights, powers and duties which may be senior, pari passu or junior to OP Units,
all as shall be determined by the General Partner in its sole and absolute
discretion subject to Delaware law, including, without limitation (i) the
allocations of items of Partnership income, gain, loss, deduction and credit to
each such class or series of Partnership Interests; (ii) the right of each such
class or series of Partnership Interests to share in Partnership distributions;
and (iii) the rights of each such class or series of Partnership Interests upon
dissolution and liquidation of the Partnership; provided that no such additional
Partnership Interests shall be issued to the General Partner unless either
(A)(1) the additional Partnership Interests are issued in connection with the
issuance of shares of Securities by the General Partner, which Securities have
designations, preferences and other rights such that the economic interests
attributed to such Securities are substantially similar to the designations,
preferences and other rights of the additional Partnership Interests issued to
the General Partner in accordance with this Section 3.2(B), and (2) subject to
any exceptions set forth in this Section 3.2(B), the General Partner shall make
a Capital Contribution to the Partnership in an amount equal to the proceeds
raised in connection with the issuance of such shares of the General Partner, or
(B) the additional Partnership Interests are issued to all the Partners in
proportion to their respective Percentage Interests.
C. Percentage Interest Adjustments. In the event that the
Partnership issues additional Partnership Interests (including additional
classes of Partnership Interests, (but excluding OP Units issued upon the
redemption of Preferred Units), the General Partner shall allocate to such
additional Partnership Interests a Percentage Interest in the Partnership equal
to a fraction, the numerator of which is equal to either (a) such amount as may
be fixed by agreement between the General Partner, in the General Partner's
sole discretion, and the Contributing Partner or (b) the amount of cash, if
any, plus the Gross Asset Value of the
796300.10
-8-
<PAGE>
property, if any, contributed as additional Capital Contributions (net of any
debt to which such property is subject or assumed by the Partnership in
connection with such contribution) with respect to such additional Partnership
Interests and the denominator of which is equal to the fair market value (as
determined by the General Partner as of the date of such contribution taking
into account such contribution) of all the Partnership Interests for all
outstanding classes of Partnership Interests (including such additional
Partnership Interests). To the extent that any such issuance of additional
Partnership Interests results in an overall decrease (the "Percentage Decrease")
in the aggregate Percentage Interests in the Partnership represented by all of
the Partnership Interests that were outstanding before the issuance of the
additional Partnership Interests, the Percentage Decrease shall be allocated
among the classes of Partnership Interests outstanding prior to the issuance of
the additional Partnership Interests in accordance with such classes' respective
Percentage Interests in the Partnership as determined prior to the issuance of
the additional Partnership Interests. Similarly, to the extent that a redemption
by the General Partner of any Partnership Interests for cash results in an
overall increase (the "Percentage Increase") in the aggregate Percentage
Interests in the Partnership represented by the remaining Partnership Interests
outstanding after the redemption (the "Remaining Interests"), the Percentage
Increase shall be allocated among the classes of Remaining Interests by
multiplying the Percentage Increase by a fraction equal to the aggregate
pre-redemption Percentage Interests of all Remaining Interests of the particular
class divided by the aggregate pre-redemption Percentage Interests of all
Remaining Interests of all classes. Upon the redemption of any Preferred Units
for OP Units, the aggregate Percentage Interest allocated to that class of
Preferred Units shall be reduced by the total Percentage Interests attributable
to the redeemed Preferred Units (the "Preferred Redemption Percentage"), and the
aggregate Percentage Interest allocated to the OP Units shall be increased by
that Preferred Redemption Percentage.
D. From time to time, the General Partner shall cause the
Partnership to issue additional general Partnership Interests to the General
Partner in connection with the issuance by the General Partner of additional
Common Shares in exchange for OP Units as provided in Section 3.8 hereof. The
amount of general Partnership Interests issued under this Section 3.3(D) shall
be equal to the amount of OP Units exchanged for Common Shares (subject to the
anti-dilution protections set forth in Section 3.8).
E. If the Common Shares (or any other class of Securities of the
General Partner for which a class of Partnership Interests may be redeemed)
undergoes any split or reverse split, then without further action or consent by
the General Partner or any Limited Partner, each corresponding class of
Partnership Interests that is redeemable for Securities shall be split or
combined in accordance with the same ratio used to split or combine the
Securities. For example, if the Common Shares undergo a reverse 2 for 1 split
(i.e. every two shares of old Common Shares are converted into one share of new
Common Shares) then the corresponding class of Partnership Interests that are
redeemable for such Common Shares shall undergo a similar reverse split (i.e.
every two old OP Units shall be converted into one new OP Unit). Similarly, if
any class of Partnership Interests into which another class of
796300.10
-9-
<PAGE>
Partnership Interests is convertible undergoes any split or reverse split, then
without further action or consent by the General Partner or any Limited Partner
the latter class of Partnership Interests shall be split or combined in
accordance with the same ratio used to split or combine the first class of
Partnership Interests.
3.3 Additional Capital.
A. No Partner shall be assessed or, except as provided for in
Section 3.3(B) below, required to contribute additional funds or other property
to the Partnership. Any additional funds or other property required by
the Partnership, as determined by the General Partner in its sole discretion,
may, at the option of the General Partner and without an obligation to do so
(except as provided for in Section 3.3(B) below), be contributed by the
General Partner as additional Capital Contributions. If and as the General
Partner or any other Partner makes additional Capital Contributions to the
Partnership, each such Partner shall receive additional Partnership Interests
as provided for in Section 3.2(B) above. The General Partner shall also have
the right (but not the obligation) to raise any additional funds required for
the Partnership by causing the Partnership to borrow the necessary funds from
third parties on such terms and conditions as the General Partner shall deem
appropriate in its sole discretion. If the General Partner elects to cause the
Partnership to borrow the additional funds, it may cause one or more of the
Partnership's assets to be encumbered to secure the loan. Except as provided
for in Section 3.3(C) below, no Limited Partner shall have the right to
contribute additional Capital Contributions to the Partnership without the
prior written consent of the General Partner.
B. (i) The net proceeds of any and all funds raised by or through
the General Partner through the issuance of additional Securities shall be
contributed to the Partnership as additional Capital Contributions, and in such
event the General Partner shall be issued additional Partnership Interests
pursuant to Section 3.2(B) above.
(ii) If the Partnership requires funds at any time or from time to
time in excess of funds available to the Partnership through borrowings and
prior or additional Capital Contributions, the General Partner may, but shall
not be required to, borrow such funds from a financial institution or other
lender or through public debt offerings and lend such funds to the Partnership
on the same terms and conditions as are applicable to the General Partner.
C. So long as a dividend reinvestment plan is in effect for the
holders of the Common Shares, each Limited Partner shall have the right to
reinvest any or all cash distributions payable to it from time to time pursuant
to this Agreement by having some or all (as the Limited Partner elects) of such
distributions contributed to the Partnership as additional Capital
Contributions, and in such event the Partnership shall issue to each such
Limited Partner additional OP Units pursuant to Section 3.2(B) above. The
General Partner shall create and administer a reinvestment program to effect the
foregoing in substantial
796300.10
-10-
<PAGE>
conformance with any dividend reinvestment program available from time to time
to holders of the Common Stock.
3.4 Capital Accounts. A separate capital account("Capital Account")
shall be maintained for each Partner.
A. To each Partner's Capital Account there shall be credited such
Partner's Capital Contributions, such Partner's distributive share of Profits
and any items in the nature of income or gain which are specifically allocated
pursuant to Section 7.3 or Section 7.4 hereof, and the amount of any Partnership
liabilities assumed by such Partner or which are secured by any Partnership
property distributed to such Partner.
B. To each Partner's Capital Account there shall be debited the
amount of cash and the Gross Asset Value of any Partnership property distributed
to such Partner pursuant to any provision of this Agreement, such Partner's
distributive share of Losses and any items in the nature of expenses or losses
which are specifically allocated pursuant to Section 7.3 or Section 7.4 hereof,
and the amount of any liabilities of such Partner assumed by the Partnership or
which are secured by any property contributed by such Partner to the
Partnership.
C. In the event all or a portion of a Partnership Interest is
transferred in accordance with the terms of this Agreement (including a transfer
of OP Units in exchange for Common Shares of the General Partner, pursuant to
Section 3.8), the transferee shall succeed to the Capital Account of the
transferor to the extent it relates to the transferred Partnership Interest.
D. In determining the amount of any liability for purposes of
Sections 3.4(A) and 3.4 (B) hereof, there shall be taken into account Code
Section 752(c) and any other applicable provisions of the Code and Regulations.
E. This Section 3.4 and the other provisions of this Agreement
relating to the maintenance of Capital Accounts are intended to comply with
Regulations Section 1.704-1(b), and shall be interpreted and applied in a manner
consistent with such Regulations. In the event the General Partner shall
determine that it is prudent to modify the manner in which the Capital Accounts,
or any debits or credits thereto (including, without limitation, debits or
credits relating to liabilities which are secured by contributed or distributed
property or which are assumed by the Partnership, or the Partners) are computed
in order to comply with such Regulations, the General Partner may make such
modification, provided that it is not likely to have a material effect on the
amounts distributed to any Partner pursuant to Section 14 hereof upon the
dissolution of the Partnership or would otherwise not have a material adverse
effect on any Partner or any Partner's Capital Account. The General Partner also
shall (i) make any adjustments that are necessary or appropriate to maintain
equality between the Capital Accounts of the Partners and the amount of
Partnership capital reflected on the
796300.10
-11-
<PAGE>
Partnership's balance sheet, as computed for book purposes, in accordance with
Regulations Section 1.704-1(b) (2) (iv) (g), and (ii) make any appropriate
modifications in the event unanticipated events might otherwise cause this
Agreement not to comply with Regulations Section 1.704-1(b), provided, that such
adjustments or modifications, to the extent they may be made in the discretion
of the General Partner, shall not, either singly or in the aggregate, have a
material adverse effect on any Partner or any Partner's Capital Account.
3.5 Interest on and Return of Capital.
A. No Partner shall be entitled to any interest on its Capital
Account or on its contributions to the capital of the Partnership.
B. Except as expressly provided for in this Agreement, not Partner
shall have the right to demand or to receive the return of all or any part of
his capital contributions to the Partnership and there shall be no priority of
one Partner over the other as to the return of capital contributions or
withdrawals or distributions of profits and losses. No Partner shall have the
right to demand or receive property other than cash in return for the
contributions of such Partner to the Partnership.
3.6 Negative Capital Accounts. No Partner shall be required to pay
to the Partnership any deficit or negative balance which may exist in its
Capital Account.
3.7 Limit on Contributions and Obligations of Partners. Neither the
Limited Partners nor the General Partner shall be required to make any
additional advance or contributions to or on behalf of the Partnership or to
endorse any obligations of the Partnership.
3.8 Conversion of OP Units. Subject to the further provisions of
this Section 3.8, the General Partner hereby grants to each Limited Partner the
right to exchange any or all of the OP Units held by that Partner for Common
Shares, with one OP Unit being exchangeable for one Common Share. Such right
may be exercised by a Limited Partner at any time and from time to time upon
not less than ten (10) days prior written notice to the General Partner or at
such times as may be otherwise agreed to by the Limited Partner, on the one
hand, and the Partnership or the General Partner, on the other hand. The
General Partner shall at all times reserve and keep available out of its
authorized but unissued Common Shares, solely for the purpose of effecting the
exchange of OP Units for Common Shares, such number of Common Shares as shall
from time to time be sufficient to effect the conversion of all outstanding OP
Units not owned by the General Partner. No Limited Partner shall, by virtue of
being the holder of one or more OP Units, be deemed to be a shareholder of or
have any other interest in the General Partner. The exchange of OP Units for
Common Shares described in this Section 3.8 may be effected by the contribution
of Common Shares from the General Partner to the Partnership and the redemption
by the Partnership of OP Units held by a Limited Partner. In the event of any
change in the outstanding Common Shares by reason of any share
796300.10
-12-
<PAGE>
dividend, split, recapitalization, merger, consolidation, combination, exchange
of shares or other similar corporate change, the number of OP Units held by each
Partner shall be proportionately adjusted so that one OP Unit remains
exchangeable for one Common Share without dilution. In the event the General
Partner issues any Common Shares in exchange for OP Units pursuant to this
Section 3.8, any such OP Units so acquired by the General Partner shall
immediately thereafter be canceled by the Partnership and the Partnership shall
issue to the General Partner new OP Units pursuant to Section 3.2(B)(ii) hereof.
Notwithstanding the foregoing provisions of this Section 3.8, a Limited Partner
shall not have the right to exchange OP Units for Common Shares if (i) in the
opinion of counsel for the General Partner, the General Partner would, as a
result thereof, no longer qualify (or it would be likely that the General
Partner no longer would qualify) as a Real Estate Investment Trust; (ii) such
exchange would, in the opinion of counsel for the General Partner, constitute or
be likely to constitute a violation of applicable securities laws; or (iii) such
exchange would result in a Limited Partner exceeding the ownership limitation
provisions in the Declaration of Trust of the General Partner, as such
provisions shall then be in effect. If the General Partner is unable to issue
Common Shares in accordance with this Section 3.8, it shall cause the
Partnership to redeem the requested OP Units for cash for an amount equal to the
Market Price (as defined in Section 3.2(B)) calculated as if one OP Unit equaled
one Common Share (subject to the anti-dilution protections set forth in this
Section 3.8).
No fractional Common Shares shall be issued in return for OP Units. If
more than one OP Unit shall be requested to be redeemed at the same time by the
same Limited Partner, the number of full Common Shares that shall be issuable
upon the redemption thereof shall be computed on the basis of the aggregate
number of Common Shares represented by the OP Units so presented. If any
fraction of a Common Share would, except for the provisions of this Section 3.8,
be issuable on the redemption of any OP Units (or specified portion thereof),
the General Partner shall pay an amount in cash equal to the Market Price
(determined as of the trading day immediately preceding the date upon the
closing of the conversion of the OP Units is to occur), multiplied by such
fraction.
4. Principal Office. The principal office of the Partnership shall
be located at the principal office of the General Partner, or at such other
place as the General Partner may designate after giving written notice of such
designation to the other Partners.
5. Purpose and Powers of the Partnership.
-------------------------------------
A. The purposes of the Partnership shall be to acquire, purchase,
own, operate, manage, develop, redevelop, construct, improve, invest in,
finance, refinance, sell, lease and otherwise deal with real property and
assets related thereto, and interests therein (including, without limitation,
debt), whether directly or indirectly, alone or in association with others.
The purposes of the Partnership include, but are not limited to:
796300.10
-13-
<PAGE>
(i) acquiring, developing, operating, leasing and managing real
property and conducting any other lawful business relating thereto;
(ii) mortgaging, exchanging, selling, encumbering or otherwise
disposing of all or any part of a real property or any interest therein;
(iii) constructing, reconstructing, altering, modifying and
subtracting from or adding to a real property or any part thereof;
(iv) organizing and holding partnership interests in partnerships
owning or otherwise having an interest in, whether directly or indirectly,
one or more real properties; and
(v) in general, the making of any investments or expenditures, the
borrowing and lending of money and the taking of any and all actions which
are incidental or related to any of the purposes recited above.
It is agreed that each of the foregoing is an ordinary part of the
Partnership's business and affairs. Property may be acquired subject to, or by
assuming, the liens, encumbrances, and other title exceptions which affect such
property. The Partnership may also be a partner, general or limited, in
partnerships, general or limited, and joint ventures created to accomplish all
or any of the foregoing.
B. The Partnership purposes may be accomplished by taking any
action which is not prohibited under the Act and which is related to the
acquisition, ownership, development, improvement, operation, management,
financing, leasing, exchanging, selling or otherwise encumbering or disposing
of all or any portion of the assets of the Partnership, or any interest therein.
C. Notwithstanding anything to the contrary contained in this
Agreement, for so long as Acadia Realty Trust is a Partner, the Partnership
shall operate in such a manner and the Partnership shall take or omit to take
all actions as may be necessary (including making appropriate distributions from
time to time), so as to permit Acadia Realty Trust (i) to continue to qualify as
a Real Estate Investment Trust under Sections 856 through 860 of the Code so
long as such requirements exist and as such provisions may be amended from time
to time, or corresponding provisions of succeeding law (the "REIT
Requirements"), and (ii) to minimize its exposure to the imposition of an excise
tax under Section 4981(a) of the Code or a tax under Section 857(b) (5) of the
Code, so long as such taxes may be imposed and as such provisions may be amended
from time to time, or corresponding provisions of succeeding law, each of (i)
and (ii) to at all times be determined (a) as if Acadia Realty Trust's sole
asset is its Partnership Interest, and (b) without regard to the action or
inaction of Acadia Realty Trust with respect to distributions (by way of
dividends or otherwise) and the timing thereof. In addition, the Partnership
shall take no action with respect to a sale, exchange or other disposition of
any
796300.10
-14-
<PAGE>
property owned by the Partnership with respect to which a material issue exists
as to whether such sale, exchange or other disposition would cause Acadia Realty
Trust to incur a prohibited transaction tax under Section 857(b) (6) of the
Code.
D. Without the consent of all of the Limited Partners affected
thereby, the General Partner may not change its policy of holding its assets and
conducting its business solely through the Partnership or structure any
transactions described in Section 5(E) or 5(F) in a manner which will change the
General Partner's policy of holding its assets and conducting its business
through the Partnership (or the Surviving Partnership (defined below), if
applicable)), if the result of such transaction is the recognition of gain for
federal income tax purposes by such Limited Partners.
E. Whether or not Section 5(D) hereof is applicable, the General
Partner shall not, unless Section 5(F) is applicable, engage in any merger,
consolidation or other combination with or into another person, sale of all or
substantially all of its assets or any reclassification, recapitalization or
similar transaction (each a "Termination Transaction"), unless such Termination
Transaction is one in connection with which each Limited Partner either will
receive, or will have the right to elect to receive, for each OP Unit held by
such Limited Partner, an amount of cash, securities, or other property equal to
the product of the number of Common Shares into which such OP Unit is
convertible (or in the case of a Series A Preferred Unit, the number of OP Units
into which such Series A Preferred Unit is convertible) and the greatest amount
of cash, securities or other property paid to a holder of one Common Share in
consideration of one Common Share pursuant to the terms of the Termination
Transaction; provided that; if, in connection with the Termination Transaction,
a purchase, tender or exchange offer shall have been made to and accepted by the
holders of the outstanding Common Shares, each holder of OP Units (but not
Series A Preferred Units or any other class of Partnership Interests that is not
directly redeemable for Common Shares) shall receive, or shall have the right to
elect to receive, the greatest amount of cash, securities, or other property
which such holder would have received had it exercised its exchange right (as
set forth in Section 3.8) and received Common Shares in exchange for its OP
Units immediately prior to the expiration of such purchase, tender or exchange
offer and had thereupon accepted such purchase, tender or exchange offer and
then such Termination Transaction shall have been consummated.
F. Whether or not Section 5(D) hereof is applicable, the General
Partner may merge, or otherwise combine its assets, with another entity without
satisfying the requirements of Section 5(E) hereof if: (i) immediately after
such merger or other combination, substantially all of the assets directly or
indirectly owned by the surviving entity, other than OP Units held by such
General Partner, are owned directly or indirectly by the Partnership or another
limited partnership or limited liability company which is the survivor of a
merger, consolidation or combination of assets with the Partnership (in each
case, the "Surviving Partnership"); (ii) the Limited Partners own a percentage
interest of the Surviving Partnership based on the relative fair market value of
the net assets of the Partnership (as determined
796300.10
-15-
<PAGE>
pursuant to Section 5(G)) and the relative fair market value of the other net
assets of the Surviving Partnership (as determined pursuant to Section 5(G))
immediately prior to the consummation of such transaction; (iii) the rights,
preferences and privileges of each class of Limited Partners in the Surviving
Partnership are at least as favorable as those in effect immediately prior to
the consummation of such transaction and as those applicable to any other
limited partners or non-managing members of the Surviving Partnership; and (iv)
such rights of the Limited Partners include the right to exchange their
interests in the Surviving Partnership for at least one of: (A) the
consideration available to such Limited Partners pursuant to Section 5(E), or
(B) if the ultimate controlling person of the Surviving Partnership has publicly
traded common equal securities, such common equity securities, with an exchange
ratio based on the relative fair market value of such securities (as determined
pursuant to Section 5(G)) and the Common Shares.
G. In connection with any transaction permitted by Section 5(E) or
5(F), the relative fair market values shall be reasonably determined by the
General Partner in good faith as of the time of such transaction and, to the
extent applicable, shall be no less favorable to the Limited Partners than the
relative values reflected in the terms of such transactions.
6. Term. The term of the Partnership shall continue until the
Partnership is terminated upon the occurrence of an event described in
Section 14.1 below.
7. Allocations.
-----------
7.1 Profits. After giving effect to the special allocations set
forth in Sections 7.3 and 7.4 hereof, Profits for any fiscal year shall be
allocated among the Partners in proportion to their respective Percentage
Interests.
7.2 Losses.
A. After giving effect to the special allocations set forth in
Sections 7.3 and 7.4 hereof, Losses for any fiscal year shall be allocated among
the Partners in proportion to their respective Percentage Interests.
B. The Losses allocated pursuant to Section 7.2(A) hereof shall not
exceed the maximum amount of Losses that can be so allocated without causing any
Limited Partner to have an Adjusted Capital Account Deficit at the end of any
fiscal year. All Losses in excess of the limitations set forth in this Section
7.2(B) shall be allocated to the General Partner.
7.3 Special Allocations. Subject to Section 7.6 hereof, the
following special allocations shall be made in the following order:
A. Minimum Gain Chargeback. Except as otherwise provided in
Regulations Section 1.704-2(f), notwithstanding any other provision of this
Section 7, if there
796300.10
-16-
<PAGE>
is a net decrease in Partnership Minimum Gain during any fiscal year, each
Partner shall be specially allocated items of Partnership income and gain for
such fiscal year (and, if necessary, subsequent fiscal years) in an amount equal
to such Partner's share of the net decrease in Partnership Minimum Gain,
determined in accordance with Regulations Section 1.704-2(g). The items to be so
allocated shall be determined in accordance with Regulations Section 1.704-
2(f)(6) and 1.704-2(j)(2). This Section 7.3(A) is intended to comply with
minimum gain chargeback requirements in Section 1.704-2(f) of the Regulations
and shall be interpreted consistently therewith.
B. Partner Minimum Gain Chargeback. Except as otherwise provided in
Regulations Section 1.704-2(i)(4), notwithstanding any other provision of this
Section 7, if there is a net decrease in Partner Nonrecourse Debt Minimum Gain
attributable to a Partner Nonrecourse Debt during any Partnership fiscal year,
each Partner who has a share of the Partner Nonrecourse Debt Minimum Gain
attributable to such Partner Nonrecourse Debt determined in accordance with
Regulations Section 1.704-2(i) (5) shall be specially allocated items of
Partnership income and gain for such fiscal year (and, if necessary, subsequent
fiscal years) in an amount equal to such Partner's share of the net decrease in
Partner Nonrecourse Debt Minimum Gain attributable to such Partner Nonrecourse
Debt, determined in accordance with Regulations Section 1.704-2 (i) (4). The
items to be so allocated shall be determined in accordance with Regulations
Sections 1.704-2(i) (4) and 1.704-2(i) (2). This Section 7.3(B) is intended to
comply with the minimum gain chargeback requirement in Regulations Section
1.704-2(i) (4) and shall be interpreted consistently therewith.
C. Qualified Income Offset. In the event any Partner unexpectedly
receives any adjustments, allocations, or distributions described in
Regulations Section 1.704-1(b) (2) (ii) (d) (4), Section 1.704-1(b)(2) (ii)
(d) (5), or Section 1.704-1(b) (2) (ii) (d) (6), items of Partnership income
and gain shall be specially allocated to each such Partner in an amount and
manner sufficient to eliminate, to the extent required by the Regulations, the
Adjusted Capital Account Deficit of such Partner as quickly as possible,
provided that an allocation pursuant to this Section 7.3(C) shall be made only
if and to the extent that such Partner would have an Adjusted Capital Account
Deficit after all other allocations provided for this Section 7 have been
tentatively made, as if this Section 7.3(C) were not in the Agreement.
D. Gross Income Allocation. In the event any Partner has an Adjusted
Capital Account Deficit at the end of any Partnership fiscal year, each such
Partner shall be specifically allocated items of Partnership income and gain
in the amount of such excess as quickly as possible, provided that an
allocation pursuant to this Section 7.3 (D) shall be made only if and to the
extent that such Partner would have an Adjusted Capital Account Deficit after
all other allocations provided for in this Section 7 have been made as if
Section 7.3(C) hereof and this Section 7.3(D) were not in the Agreement.
E. Nonrecourse Deductions. Nonrecourse Deductions for any fiscal
year shall be allocated among the Partners in accordance with their respective
Percentage Interests.
796300.10
-17-
<PAGE>
F. Partner Nonrecourse Deductions. Any Partner Nonrecourse
Deductions for any fiscal year shall be specially allocated to the Partner
who bears the economic risk of loss with respect to the Partner Nonrecourse
Debt to which such Partner Nonrecourse Deductions are attributable, in
accordance with Regulations Section 1.704-2(i) (1).
G. Section 754 Adjustments. The Partnership shall make a timely
election under Section 754 such that the General Partner may adjust the tax
basis of the Partnership assets pursuant to Section 743(b), if appropriate, upon
an exchange of OP Units for Common Shares. In addition, to the extent an
adjustment to the adjusted tax basis of any Partnerships asset pursuant to Code
Sections 734(b) or 743(b) is required, pursuant to Regulations Section
1.704-1(b) (2) (iv) (m) to be taken into account in determining Capital Accounts
as a result of a distribution to a Partner in complete liquidation of his
interest in the Partnership, the amount of such adjustment to Capital Accounts
shall be treated as an item of gain (if the adjustment increases the basis of
the asset) or loss (if the adjustment decreases such basis) and such gain or
loss shall be specifically allocated to the Partner in accordance with such
Partner's Percentage Interest in the event that Regulations Section 1.704-1(b)
(2) (iv) (m) (2) applies, or the Partners to whom such distribution was made in
the event that Regulations Section 1.704-1(b) (2) (iv) (m) (4) applies.
H. Allocations with Respect to Partnership Interests other than OP
Units. In the event the Partnership issues additional classes of Preferred Units
or other classes of Partnership Interests other than OP Units, then the General
Partner shall determine, in its sole discretion, the Profits and Losses
attributable to each class (subject to the requirement that the Profits
attributed to any class must bear a reasonable relationship to the amount of
cash distributions to that class) and shall allocate the Profits and Losses of
each class of Partnership Interests among the Partners in such class in
proportion to their respective percentage interests in such class, after giving
effect to any and all special allocations set forth in Sections 7.3 and 7.4
above.
7.4 Curative Allocations. The allocations set forth in Sections
7.2(B), 7.3(A), 7.3(B), 7.3(C), 7.3(D), 7.3(E), 7.3(F) and 7.3(G) hereof (the
"Regulatory Allocations") are intended to comply with certain requirements of
the Regulations under Sections 704(b) and 514(c) (9) (E) of the Code. It is the
intent of the Partners that, to the extent possible, all Regulatory Allocations
shall be offset either with other Regulatory Allocations or with special
allocations of other items of Partnership income, gain, loss, or deduction
pursuant to this Section 7.4. Therefore, notwithstanding any other provision of
this Section 7 (other than the Regulatory Allocations and Section 7.6), the
General Partner shall make such offsetting special allocations of Partnership
income, gain, loss, or deduction in whatever manner it determines appropriate so
that, after such offsetting allocations are made, each Partner's Capital Account
balance is, to the extent possible, equal to the Capital Account balance such
Partner would have had if the Regulatory Allocations were not part of the
Agreement and all Partnership items were allocated pursuant to Sections 7.1 and
7.2(A), and
796300.10
-18-
<PAGE>
so that, to the greatest extent possible, such allocations comply with the
Regulations under Code Section 514(c) (9) (E). In exercising its discretion
under this Section 7.4, the General Partner shall take into account future
Regulatory Allocations under Section 7.3 (A) and 7.3(B) that, although not yet
made, are likely to offset other Regulatory Allocations previously made under
Sections 7.3(E) and 7.3(F).
7.5 Other Allocation Rules.
A. For purposes of determining the Profits, Losses, or any other
items allocable to any period, Profits, Losses, and any such other items shall
be determined on a daily, monthly or other basis, as determined by the General
Partner using any permissible method under Code Section 706 and the Regulations
thereunder.
B. The Partners are aware of the income tax consequences of the
allocations made by this Section 7 and hereby agree to be bound by the
provisions of this Section 7 in reporting their shares of Partnership income and
loss for income tax purposes.
C. Solely for purposes of determining a Partner's proportionate
share of the "excess nonrecourse liabilities" of the Partnership within the
meaning of Regulations Section 1.752-3(a) (3), the Partners' interests in
Partnership Profits are equal to their respective Percentage Interests.
7.6 Tax Allocations: Code Section 704(c).
A. Notwithstanding any other provision herein to the contrary,
income, gain, loss, and deduction with respect to any property contributed to
the capital of the Partnership shall, solely for tax purposes, be allocated
among the Partners so as to take account of any variation between the adjusted
basis of such property to the Partnership for federal income tax purposes and
its initial Gross Asset Value in accordance with Code Section 704(c) and
Regulations Section 1.704-3 using the "traditional method" unless otherwise
determined by the General Partner and the Contributing Partner.
B. In the event the Gross Asset Value of any Partnership asset is
adjusted pursuant to the definition of "Gross Asset Value" contained in Section
2 hereof, subsequent allocations of income gain, loss, and deduction with
respect to such asset shall take account of any variation between the adjusted
basis of such asset for federal income tax purposes and its Gross Asset Value in
the same manner as set forth in Section 7.6A above.
C. Allocations pursuant to this Section 7.6 are solely for purposes
of federal, state, and local taxes and shall not affect, or in any way be taken
into account in computing, any Partner's Capital Account or share of Profits,
Losses, other items, or distributions pursuant to any provision in this
Agreement.
796300.10
-19-
<PAGE>
8. Cash Available for Distribution.
-------------------------------
8.1 Operating Cash Flow. As used in this Agreement, "Operating Cash
Flow" shall mean and be defined as all cash receipts of the Partnership from
whatever source (but excluding Capital Cash Flow and proceeds of Capital
Contributions) during the period in question in excess of all items of
Partnership expense (including prepaid expense, financing costs and similar
items but excluding non-cash expenses such as depreciation and costs and
expenses paid with Capital Contributions) and other cash needs of the
Partnership, including, without limitation, amounts paid by the Partnership as
principal on debts and advances, during such period, capital expenditures and
any reserves (as reasonably determined by the General Partner) established or
increased during such period provided that the expenses listed in Section 8.2
shall not be considered expenses under this Section 8.1. In the discretion of
the General Partner, reserves may include cash held for future acquisitions.
Operating Cash Flow shall be distributed to or for the benefit of the Partners
not less frequently than annually, and shall be distributed (i) first, to
holders of any class of Preferred Units in accordance with their Percentage
Interests in an amount equal to all preferential distributions on such Preferred
Units as set forth in the Unit Certificate for such class and at the times set
forth therein, and (ii) thereafter, to the extent of the remaining amount, to
and among the other Partners in accordance with their respective Percentage
Interests; or
8.2 Capital Cash Flow. As used in this Agreement, "Capital Cash
Flow" shall mean and be defined as collectively (a) gross proceeds realized in
connection with the sale of any assets of the Partnership, (b) gross financing
or refinancing proceeds, (c) gross condemnation proceeds (excluding condemnation
proceeds applied to restoration of remaining property) and (d) gross insurance
proceeds (excluding rental insurance proceeds or insurance proceeds applied to
restoration of property), less (a) closing costs, (b) the cost to discharge any
Partnership financing encumbering or otherwise associated with the asset(s) in
question, (c) the establishment of reserves (as determined by the General
Partner, and which may include cash held for future acquisitions), and (d) other
expenses of the Partnership then due and owing. Subject to Section 14.2 below,
if applicable, Capital Cash Flow shall be distributed to or for the benefit of
the Partners not less frequently than annually and in any event as provided in
the Unit Certificate and shall be distributed first to the holders of Preferred
Units in the order of their preference and next to the other Partners, in
accordance with the respective Percentage Interests of the Partners on the date
of such distribution.
8.3 Consent to Distributions. Each of the Partners hereby consents
to the distributions provided for in this Agreement. The General Partner shall
determine, in accordance with the terms of this Agreement and the Unit
Certificates, the amounts to be distributed to the Partners from time to time.
796300.10
-20-
<PAGE>
8.4 Distributions to General Partner's Shareholders. To the extent
available after providing for the preferences and the rights of the Partners,
Operating Cash Flow and Capital Cash Flow shall be distributed to the General
Partner in the amount necessary to satisfy the payment of distributions to the
General Partner's shareholders as such distributions are determined by the
General Partner.
8.5 Additional Classes of Partnership Interests. Notwithstanding
the foregoing provisions of this Article 8, in the event the Partnership issues
additional classes of Partnership Interests other than OP Units, then the
General Partner shall determine, in its sole discretion (subject to Section
7.3(H)), the amount of distributions of Operating Cash Flow and Capital Cash
Flow attributable to each class in accordance with the Unit Certificates and
shall distribute such Operating Cash Flow and Capital Cash Flow to each class of
Partnership Interests among the Partners in such class in proportion to their
respective Percentage Interests in such class or otherwise as required pursuant
to the terms of such Partnership Interests.
9. Management of Partnership.
-------------------------
9.1 General Partner. The General Partner shall be the sole manager
of the Partnership business, and shall have the right and power to make all
decisions and take any and every action with respect to the property, the
business and affairs of the Partnership and shall have all the rights, power and
authority generally conferred by law, or necessary, advisable or consistent with
accomplishing the purposes of the Partnership. All such decisions or actions
made or taken by the General Partner hereunder shall be binding upon all of the
Partners and the Partnership. The powers of the General Partner to manage the
Partnership business shall include, without limitation, the power and authority
to:
(i) operate any business normal or customary for the owner of or
investor in real properties;
(ii) perform any and all acts necessary or appropriate to the
operation of the Partnership assets, including, but not limited to,
applications for rezoning, objections to rezoning of other property and
the establishment of bank accounts in the name of the Partnership;
(iii) procure and maintain with responsible companies such
insurance as may be available in such amounts and covering such risks as
are deemed appropriate by the General Partner;
(iv) take and hold all real, personal and mixed property of the
Partnership in the name of the Partnership or in the name of a nominee;
(v) execute and deliver leases on behalf of and in the name of the
Partnership;
796300.10
-21-
<PAGE>
(vi) borrow money, finance and refinance the assets of the
Partnership or any part thereof or interest therein and in connection
with such borrowing, execute and deliver documents that evidence and
secure the loans which permit the holders of the loans to confess
judgment against the Partnership;
(vii) coordinate all accounting and clerical functions of the
Partnership and employ such accountants, lawyers, property managers,
leasing agents and other management or service personnel as may from time
to time be required to carry on the business of the Partnership;
(viii) acquire, encumber, sell, ground lease or otherwise dispose
of any or all of the assets of the Partnership, or any part thereof or
interest therein; and
(ix) organize one or more partnerships or corporations which are
controlled, directly or indirectly, by the Partnership and make any
capital contributions required pursuant to the partnership agreements of
any such partnerships.
9.2 Limitations on Powers and Authorities of Partners.
Notwithstanding the powers of the General Partner set forth in Section 9.1
above, no Partner shall have the right or power to do any of the following:
(i) do any act in contravention of this Agreement, or any amendment
hereto; or
(ii) do any act which would make it impossible to carry on the
ordinary business of the Partnership, except to the extent that such act
is specifically permitted by the terms hereof (it being understood and
agreed that, except as hereafter provided in this Section 9.2, a sale of
any or all of the assets of the Partnership, for example, would be an
ordinary part of the Partnership's business and affairs and is
specifically permitted hereby; or
9.3 Limited Partners. The Limited Partners shall have no right or
authority to act for or to bind the Partnership and no Limited Partner shall
participate in the conduct or control of the Partnership's affairs or business;
provided, however, that the exercise of the Limited Partners' rights under this
Agreement shall not be considered to be participation in such conduct or
control.
9.4 Liability of General Partner. The General Partner shall not be
liable or accountable, in damages or otherwise, to the Partnership or to any
other Partner for any error of judgment or for any mistakes of fact or law or
for anything which it may do or refrain from doing hereafter in connection with
the business and affairs of the Partnership except (i) in the
796300.10
-22-
<PAGE>
case of fraud, willful misconduct (such as an intentional breach of fiduciary
duty or an intentional breach of this Agreement) or gross negligence, and (ii)
for other breaches of this Agreement, but the liability of the General Partner
under this clause (ii) shall be limited to its interest in the Partnership as
more particularly provided for in Section 9.8 below. The General Partner shall
not have any personal liability for the return of any Limited Partner's capital.
9.5 Indemnity. The Partnership shall indemnify and shall hold the
General Partner (and the officers and directors thereof) harmless from any loss
or damage, including without limitation reasonable legal fees and court costs,
incurred by it by reason of anything it may do or refrain from doing hereafter
for and on behalf of the Partnership or in connection with its business or
affairs; provided, however, that (i) the Partnership shall not be required to
indemnify the General Partner (or any officer or director thereof) for any loss
or damage which it might incur as a result of its fraud, willful misconduct or
gross negligence in the performance of its duties hereunder and (ii) this
indemnification shall not relieve the General Partner of its proportionate part
of the obligations of the Partnership as a Partner. The right of indemnification
set forth in this Section 9.5 shall be in addition to any rights to which the
person or entity seeking indemnification may otherwise be entitled and shall
inure to the benefit of the successors and assigns or any such person or entity.
No Partner shall be personally liable with respect to any claim for
indemnification pursuant to this Section 9.5, but such claim shall be satisfied
solely out of assets of the Partnership. Notwithstanding the foregoing
provisions of this Section 9.5, the General Partner shall be entitled to
reimbursement by the Partnership for any amounts paid by it in satisfaction of
indemnification obligations owed by the General Partner to present or former
directors of the General Partner or its predecessors, as provided for in or
pursuant to the Articles of Incorporation and By-Laws of the General Partner.
9.6 Other Activities of Partners and Agreements with Related
Parties. The General Partner shall devote its full-time efforts in furtherance
of the Partnership business and shall conduct all of its activities
exclusively through the Partnership and shall not conduct or engage in any
way in any other business; provided, however, that the General Partner may
enter into or conduct business through a wholly owned subsidiary or otherwise
if such business is in connection with, or incidental to, the management
of the business of the Partnership. Except as may otherwise be agreed to in
writing, each Limited Partner, and its affiliates, shall be free to engage in,
to conduct or to participate in any business or activity whatsoever, including,
without limitation, the acquisition, development, management and exploitation
of real and personal property (other than property of the Partnership), without
any accountability, liability or obligation whatsoever to the Partnership or to
any other Partner, even if such business or activity competes with or is
enhanced by the business of the Partnership. The General Partner, in the
exercise of its power and authority under this Agreement, may contract and
otherwise deal with or otherwise obligate the Partnership to entities in which
the General Partner or any one or more of the officers, directors or
shareholders of the General Partner may have an ownership or other financial
interest, whether direct or indirect; provided, however, that without the
approval of a majority of the disinterested trustees of the General
796300.10
-23-
<PAGE>
Partner, the General Partner will not (i) acquire from or sell to any trustee,
officer or employee of the General Partner or the Partnership, or any person in
which a trustee, officer or employee of the General Partner or the Partnership
owns more than a 1% interest, or acquire from or sell to any affiliate of any of
the foregoing, any of the assets or other property of the General Partner, (ii)
make any loan to or borrow from any of the foregoing persons, (iii) engage in
any other transaction with any of the foregoing persons or (iv) dispose of any
of the initial 31 properties set forth on Schedule B hereto; provided further
that the foregoing shall not affect , or be deemed a waiver by the Limited
Partners of, the General Partner's fiduciary obligations to the Partnership.
9.7 Other Matters Concerning the General Partner.
A. The General Partner shall be protected in relying, acting or
refraining from acting on any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond, debenture, or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties.
B. The General Partner may exercise any of the powers granted or
perform any of the duties imposed by this Agreement either directly or through
agents. The General Partner may consult with counsel, accountants, appraisers,
management consultants, investment bankers and other consultants selected by it,
each of whom may serve as consultants for the Partnership. An opinion by any
consultant on a matter which the General Partner believes to be within its
professional or expert competence shall be full and complete protection as to
any action taken or omitted by the General Partner based on the opinion and
taken or omitted in good faith. The General Partner shall not be responsible for
the misconduct, negligence, acts or omissions of any consultant or contractor of
the Partnership or of the General Partner, and shall assume no obligations other
than to use due care in the selection of all consultants and contractors.
C. No mortgagee, grantee, creditor or any other person dealing with
the Partnership shall be required to investigate the authority of the General
Partner or secure the approval of or confirmation by any Limited Partner of any
act of the General Partner in connection with the conduct of the Partnership
business.
D. The General Partner may retain such persons or entities as it
shall determine (subject to Section 9.6, including the General Partner or any
entity in which the General Partner shall have an interest or with which it is
affiliated) to provide services to or on behalf of the Partnership. The General
Partner shall be entitled to reimbursement from the Partnership for its
out-of-pocket expenses (subject to Section 9.6, including, without limitation,
amounts paid or payable to the General Partner or any entity in which the
General Partner shall have an interest or with which it is affiliated) incurred
in connection with Partnership business. Such expenses shall be deemed to
include those expenses required in connection with the administration of the
Partnership such as the maintenance of Partnership books and records,
796300.10
-24-
<PAGE>
management of the Partnership property and assets and preparation of information
respecting the Partnership needed by the Partners in the preparation of their
individual tax returns.
9.8 Partner Exculpation.
A. Except for fraud, willful misconduct and gross negligence, no
Partner shall have any personal liability whatever, whether to the Partnership
or to the other Partner, for the debts or liabilities of the Partnership or its
obligations hereunder, and the full recourse of the other Partner shall be
limited to the interest of that Partner in the Partnership. To the fullest
extent permitted by law, no officer, director or shareholder of the General
Partner shall be liable to the Partnership for money damages except for (i)
active and deliberate dishonesty established by a final judgment or (ii) actual
receipt of an improper benefit or profit in money, property or services. Without
limitation of the foregoing, and except for fraud, willful misconduct and gross
negligence, no property or assets of any Partner, other than its interest in the
Partnership, shall be subject to levy, execution or other enforcement procedures
for the satisfaction of any judgment (or other judicial process) in favor of any
other Partner(s) and arising out of, or in connection with, this Agreement. This
Agreement is executed by the officers of each Partner solely as officers of the
same and not in their own individual capacities. No advisor, trustee, director,
officer, partner, employee, beneficiary, shareholder, participant or agent of
any Partner (or of any Partner of a Partner) shall be personally liable in any
matter or to any extent under or in connection with this Agreement, and the
Partnership, each Partner and their respective successors and assigns shall look
solely to the interest of the other Partner in the Partnership for the payment
of any claim or for any performance hereunder.
9.9 General Partner Expenses and Liabilities.
A. All costs and expenses incurred by the General Partner in
connection with its activities as the General Partner hereunder, all costs and
expenses incurred by the General Partner in connection with its continued
corporate existence, qualification as a Real Estate Investment Trust under the
Code and otherwise, and all other liabilities incurred or suffered by the
General Partner in connection with the pursuit of its business and affairs as
contemplated hereunder and in connection with its activities as the General
Partner hereunder, shall be paid (or reimbursed to the General Partner, if paid
by the General Partner) by the Partnership.
B. Notwithstanding any provisions to the contrary set forth in this
Agreement, the amount of any distributions, payments or reimbursements pursuant
to this Agreement to the General Partner shall be reduced by any amount derived
by the General Partner from any investments owned directly by the General
Partner (including without limitation amounts derived from its ownership of
those subsidiaries described in Section 9.6).
796300.10
-25-
<PAGE>
C. Notwithstanding anything contained herein to the contrary, if
the proceeds actually received and thereafter contributed to the Partnership
by the General Partner pursuant to any additional issuance as described in
Section 3.2(B) are less than the gross proceeds of such issuance as a result
of any underwriter's discount or other expenses paid or incurred in connection
with such issuance, then the General Partner shall be deemed to have made a
Capital Contribution to the Partnership in the amount of the gross proceeds of
such issuance and the Partnership shall be deemed simultaneously to have
reimbursed the General Partner pursuant to this Section 9.9 for the amount of
such underwriter's discount or other expenses.
10. Banking. The funds of the Partnership shall be kept in accounts
designated by the General Partner and all withdrawals therefrom shall be made on
such signature or signatures as shall be designated by the General Partner.
11. Accounting.
----------
11.1 Fiscal Year. The fiscal year of the Partnership shall end on
the last day of December of each year, unless another fiscal year end is
selected by the General Partner.
11.2 Books of Account. The Partnership books of account shall be
maintained at the principal office designated in Section 4 above or at such
other locations and by such person or persons as may be designated by the
General Partner. The Partnership shall pay the expense of maintaining its books
of account. Each Partner shall have, during reasonable business hours and upon
reasonable prior notice, access to the books of the Partnership and in addition,
at its expense, shall have the right to copy such books. The General Partner, at
the expense of the Partnership, shall cause to be prepared and distributed to
the Partners annual financial data sufficient to reflect the status and
operations of the Partnership and its assets and to enable each Partner to file
its federal income tax return.
11.3 Method of Accounting. The Partnership books of account shall
be maintained and kept, and its income, gains, losses and deductions shall be
accounted for, in accordance with sound principles of accounting consistently
applied, or such other method of accounting as may be adopted hereafter by the
General Partner. All elections and options available to the Partnership for
Federal or state income tax purposes shall be taken or rejected by the
Partnership in the sole discretion of the General Partner.
11.4 Section 754 Election. In case of a distribution of property
made in the manner provided in Section 734 of the Code (or any similar provision
enacted in lieu thereof), or in the case of a transfer of any interest in the
Partnership permitted by this Agreement made in the manner provided in Section
743 of the Code (or any similar provision enacted in lieu thereof), the General
Partner, on behalf of the Partnership, may, in its sole discretion, file an
election under Section 754 of the Code (or any similar provision enacted in lieu
thereof) in accordance with the procedures set forth in the applicable
Regulations.
796300.10
-26-
<PAGE>
11.5 Tax Matters Partner. The General Partner is hereby designated
the Tax Matters Partner (hereinafter referred to as the "TMP") of the
Partnership and shall have all the rights and obligations of the TMP under the
Code.
11.6 Administrative Adjustments. If the TMP receives notice of a
Final Partnership Administrative Adjustment (the "FPAA") or if a request for an
administrative adjustment made by the TMP is not allowed by the United States
Internal Revenue Service (the "IRS") and the IRS does not notify the TMP of the
beginning of an administrative proceeding with respect to the Partnership's
taxable year to which such request relates (or if the IRS so notifies the TMP
but fails to mail a timely notice of an FPAA), the TMP may, but shall not be
obligated to, petition a Court for readjustment of partnership items. In the
case of notice of an FPAA, if the TMP determines that the United States District
Court or Claims Court is the most appropriate forum for such a petition, the TMP
shall notify each person who was a Partner at any time during the Partnership's
taxable year to which the IRS notice relates of the approximate amount by which
its tax liability would be increased (based on such assumptions as the TMP may
in good faith make) if the treatment of partnership items on his return was made
consistent with the treatment of partnership items on the Partnership's return,
as adjusted by the FPAA. Unless each such person deposits with the TMP, for
deposit with the IRS, the approximate amount of his increased tax liability,
together with a written agreement to make additional deposits if required to
satisfy the jurisdictional requirements of the Court, within thirty days after
the TMP's notice to such person, the TMP shall not file a petition in such
Court. Instead, the TMP may, but shall not be obligated to, file a petition in
the United States District Tax Court.
12. Transfers of Partnership Interests.
----------------------------------
A. General Partner. In no event may the General Partner at any time
assign, sell, transfer, pledge, hypothecate or otherwise dispose of all or any
portion of its Partnership Interest, except by operation of law and in a manner
consistent with the rights of other Partners.
B. Limited Partner.
---------------
(i) No Limited Partner or substituted Limited Partner shall, without
the prior written consent of the General Partner (which consent may be
given or withheld in the sole discretion of the General Partner), sell,
assign, distribute or otherwise transfer (a "Transfer") all or any part of
his interest in the Partnership except by operation of law, gift (outright
or in trust) or by sale, in each case to or for the benefit of a Permitted
Transferee (as defined below), except for (a) pledges or other collateral
transfers effected by a Limited Partner to secure the repayment of a loan
and (b) the exchange of OP Units for Common Shares, pursuant to Section
3.8 above. For purposes of this Section 12(B)(i), the term "Permitted
Transferee" means (i) any partner or other equity owner of a Limited
Partner; (ii)
796300.10
-27-
<PAGE>
an equity owner of any partner or other equity owner of a Limited Partner; (iii)
members of the Immediate Family (as defined below) of any equity owner of a
Limited Partner (or any equity owner thereof) and trusts for the benefit of one
or more members of the Immediate Family of the Limited Partner (or any equity
owner thereof) created for a state and/or gift tax purposes and/or (iv) any
public charity, public foundation or charitable institution as defined in
Section 501(C)(3) of the Code or (v) any entity entirely owned and controlled by
the Limited Partner or by any of the persons or entities described in clauses
(i) through (iv). For purposes of this Section 12(B)(i), the term "Immediate
Family" means, with respect to any natural person, such natural person's spouse,
parents, parents-in-law, descendants, nephews, nieces, brothers, sisters,
brothers-in-law, sisters-in-law and children-in-law. A Limited Partner shall
notify the General Partner of any Transfer of beneficial interest or other
interest which occurs without a transfer of record ownership, as well as any
pledge or other collateral transfer. No part of the interest of a Limited
Partner shall be subject to the claims of any creditor, any spouse for alimony
support, or to legal process, and may not be voluntarily or involuntarily
alienated or encumbered except as may be specifically provided for in this
Agreement. A Limited Partner shall not be permitted to retire or withdraw from
the Partnership except as expressly permitted by this Agreement.
(ii) An assignee, legatee, distributee or other transferee (whether by
conveyance, will or the laws of intestacy, operation of law or otherwise)
(a "Transferee") of all or any portion of a Limited Partner's interest in
the Partnership shall be entitled to receive Profits, Losses and
distributions hereunder attributable to such interest acquired by reason
of such Transfer, from and after the effective date of the Transfer of
such interest; provided, however, anything in this Agreement to the
contrary notwithstanding, (a) no Transferee shall be considered a
substituted Limited Partner until such Transfer has been consented to by
the General Partner and (b) the Partnership and the General Partner shall
be entitled to treat the transferor of such interest as the absolute owner
thereof in all respects, and shall incur no liability for the allocation
of Profits and Losses or distributions which are made to such transferor
until such time as the written instrument of Transfer has been received by
the General Partner and the "effective date" of the Transfer has passed.
The "effective date" of any Transfer shall be the last day of the month
set forth on the written instrument of Transfer or such other date
consented to in writing by the General Partner as the "effective date."
C. Admission Adjustments. The General Partner shall, when
necessary, cause this Agreement to be amended from time to time to reflect the
addition or withdrawal of Partners, including the corresponding adjustments to
Percentage Interests in accordance with Section 3.2(C).
13. Death, Legal Incompetency, Etc. of a Limited Partner. The
death, legal incompetency, insolvency, dissolution or bankruptcy of a Limited
Partner shall not dissolve or terminate the Partnership. Upon the death or
incapacity of an individual Limited Partner, such individual Limited Partner's
interest in the Partnership shall be transferred either by will, the
796300.10
-28-
<PAGE>
laws of intestacy or otherwise to the legal representative or successor of such
individual Limited Partner.
14. Termination, Liquidation and Dissolution of Partnership.
-------------------------------------------------------
14.1 Termination Events. The Partnership shall be dissolved and its
affairs wound up in the manner hereinafter provided upon the earliest to occur
of the following events:
(i) December 31, 2080; or
(ii) the agreement of those Partners holding at least ninety-five
percent (95%) of the Percentage Interests of all of the Partners entitled
to vote, determining that the Partnership should be dissolved;
(iii) the General Partner shall hold in excess of ninety-five percent
(95%) of the Percentage Interests of all of the Partners; or
(iv) the entry of a final judgment, order or decree of a court of
competent jurisdiction adjudicating as bankrupt either the Partnership or
the General Partner, and the expiration without appeal of the period, if
any, allowed by applicable law to appeal therefrom.
14.2 Method of Liquidation. Upon the happening of any of the events
specified in Section 14.1 above, the General Partner (or if there be no General
Partner, a liquidating trustee selected by those Limited Partners holding in the
aggregate more than fifty percent (50%) of the Percentage Interests held by all
Limited Partners entitled to vote) shall immediately commence to wind up the
Partnership's affairs and shall liquidate the assets of the Partnership as
promptly as possible, unless the General Partner, or the liquidating trustee,
shall determine that an immediate sale of Partnership assets would cause undue
loss to the Partnership, in which event the liquidation may be deferred to a
reasonable time. The Partners shall continue to share Operating Cash Flow,
Capital Cash Flow, Profits and Losses during the period of liquidation in the
same proportions as before dissolution. The proceeds from liquidation of the
Partnership, including repayment of any debts of Partners to the Partnership,
shall be applied in the order of priority as follows:
A. Debts of the Partnership, including repayment of principal and
interest on loans and advances made by the General Partner pursuant to Section
3.3 above; then
B. To the establishment of any reserves deemed necessary or
appropriate by the General Partner, or by the person(s) winding up the affairs
of the Partnership in the event there is no remaining General Partner of the
Partnership, for any contingent or unforeseen liabilities or obligations of the
Partnership. Such reserves established hereunder shall be held
796300.10
-29-
<PAGE>
for the purpose of repaying any such contingent or unforeseen liabilities or
obligations and, at the expiration of such period as the General Partner, or
such person(s) deems advisable, the balance of such reserves shall be
distributed in the manner provided hereinafter in this Section 14.2 as though
such reserves had been distributed contemporaneously with the other funds
distributed hereunder; then
C. Then, to the Partners in accordance with their respective
Capital Account balances, after giving effect to all contributions,
distributions and allocations for all periods.
14.3 Date of Termination. The Partnership shall be terminated when
all notes received in connection with such disposition have been paid and all
of the cash or property available for application and distribution under
Section 14.2 above (including reserves) shall have been applied and distributed
in accordance therewith.
15. Power of Attorney. Each Limited Partner hereby irrevocably
constitutes and appoints the President of the General Partner, with full power
of substitution, its true and lawful attorney, for him and in his name, place
and stead and for his use and benefit to do the following and for no other
purpose and provided the taking of any action authorized under this Section will
not result in any liability to the Limited Partners, to sign, swear to,
acknowledge, file and record:
(i) this Agreement, and subject to Section 16 below, amendments to
this Agreement;
(ii) any certificates, instruments and documents (including assumed
and fictitious name certificates) as may be required by, or may be
appropriate under, the laws of the State of Delaware or any other State or
jurisdiction in which the Partnership is doing or intends to do business,
in order to discharge the purposes of the Partnership or otherwise in
connection with the use of the name or names used by the Partnership;
(iii) any other instrument which may be required to be filed or
recorded by the Partnership on behalf of the Partners under the laws of
any State or by any governmental agency in order for the Partnership to
conduct its business;
(iv) any documents which may be required to effect the continuation
of the Partnership, the admission of a substitute or additional Partner,
or the dissolution and termination of the Partnership, provided such
continuation, admission or dissolution and termination is not in violation
of any provision of this Agreement; and
796300.10
-30-
<PAGE>
(v) any documents which may be required or desirable to have the
General Partner appointed, and act as, the "Tax Matters Partner" as
described in the Code.
The foregoing grant of authority is a special power of attorney
coupled with an interest, is irrevocable and shall survive the death or
incapacity of any individual Limited Partner, and shall survive the delivery of
any assignment by a Limited Partner of the whole or any portion of his interest
in the Partnership.
16. Amendment of Agreement.
----------------------
A. (i) Amendments to this Agreement may only be proposed by the
General Partner.
(ii) (a) The General Partner shall submit any proposed amendment
to the Limited Partners.
(b) The General Partner shall seek the written vote of the
Partners on the proposed amendment or shall call a meeting to
vote thereon and to transact any other business that it may deem
appropriate.
(c) For purposes of obtaining a written vote, the General
Partner may require a response within a reasonable specified
time, but not less than fifteen (15) days, and failure to
respond in such time period shall constitute a vote which is
consistent with the General Partner's recommendation with
respect to the proposal.
(d) Except as provided in Section 16(B) or 16(C), a
proposed amendment shall be adopted and be effective as an
amendment hereto if it is approved by the General Partner and it
receives the consent of Partners holding at least a majority of
the Percentage Interests of the Partners (including Partnership
Interests held by the General Partner).
B. (i) Notwithstanding anything to the contrary contained in
Section 16(A), the General Partner shall have the power, without the consent
of the Limited Partners, to amend this Agreement as may be required to
facilitate or implement any of the following purposes:
(a) to add to the obligations of the General Partner or
surrender any right or power granted to the General Partner or
any Affiliate of the General Partner for the benefit of the
Limited Partners;
(b) to reflect the admission, substitution, termination, or
withdrawal of Partners in accordance with this Agreement (which
may be effected through the amendment or replacement of Annex
A);
796300.10
-31-
<PAGE>
(c) to set forth the designations, rights, powers, duties,
and preferences of the holders of any additional Partnership
Interests issued pursuant to Section 3.2 hereof;
(d) to reflect a change that does not adversely affect the
Limited Partners in any material respect, or to cure any
ambiguity, correct or supplement any provision in this Agreement
not inconsistent with law or with other provisions, or make
other changes with respect to matters arising under this
Agreement that will not be inconsistent with law or with the
provisions of this Agreement; and
(e) to satisfy any requirements, conditions, or guidelines
contained in any order, directive, opinion, ruling or regulation
of a federal or state agency or contained in federal or state
law.
(ii) The General Partner shall promptly provide notice to the
Limited Partners when any action under this Section 16(B) is taken.
C. Notwithstanding Sections 16(A) and 16(B) hereof, this Agreement
shall not be amended with respect to any Partner adversely affected without
the consent of such Partner(s) adversely affected if such amendment would
adversely affect such Partner and:
(i) convert a Limited Partner's interest in the Partnership into
a General Partner Interest;
(ii) modify the limited liability of a Limited Partner;
(iii) alter rights of the Partner to receive distributions
pursuant to Section 8 or the allocations specified in Section 7 (except as
permitted pursuant to Sections 3.2, 7, 8 and Section 14.1(B)(i) hereof);
(iv) alter rights of the Partner to convert OP Units pursuant to
Section 3.8;
(v) further limit the rights of a Limited Partner to transfer
its interest in the Partnership other than as set forth in Section 12; or
(v) amend Sections 3.6; 3.7; 5(D) through (G), inclusive; or
this Section 16(C).
17. Miscellaneous.
-------------
17.1 Notices. Any notice, election or other communication provided
for or required by this Agreement shall be in writing and shall be deemed to
have been given when delivered by hand or by telecopy or other facsimile
transmission, on the first business day after sent by overnight courier (such as
Federal Express), or on the second business day after
796300.10
-32-
<PAGE>
deposit in the United States Mail, certified or registered, return receipt
requested, postage prepaid, properly addressed to the Partner to whom such
notice is intended to be given at the address for the Partner set forth on the
signature pages of this Agreement, or at such other address as such person may
have previously furnished in writing to the Partnership and each Partner.
17.2 Modifications. Except as otherwise provided in this Agreement,
no change or modification of this Agreement shall be valid or binding upon the
Partners, nor shall any waiver of any term or condition in the future, unless
such change or modification or waiver shall be in writing and signed by all of
the Partners, except as provided to the contrary in this Agreement.
17.3 Successors and Assigns. Any person acquiring or claiming an
interest in the Partnership, in any manner whatsoever, shall be subject to and
bound by all of the terms, conditions and obligations of this Agreement to which
his predecessor-in-interest was subject or bound, without regard to whether such
person has executed a counterpart hereof or any other document contemplated
hereby. No person, including the legal representative, heir or legatee of a
deceased Partner, shall have any rights or obligations greater than those set
forth in the Partnership or become a Partner thereof except as this Agreement,
and no person shall acquire an interest in expressly permitted by and pursuant
to the terms of this Agreement. Subject to the foregoing, and the provisions of
Section 12 above, this Agreement shall be binding upon and inure to the benefit
of the Partners and their respective successors, assigns, heirs, legal
representatives, executors and administrators.
17.4 Duplicate Originals. For the convenience of the Partners, any
number of counterparts hereof may be executed, and each such counterpart shall
be deemed to be an original instrument, and all of which taken together shall
constitute one agreement.
17.5 Construction. The titles of the Sections and subsections
herein have been inserted as a matter of convenience of reference only and
shall not control or affect the meaning or construction of any of the terms or
provisions herein.
17.6 Governing Law. This Agreement shall be governed by the laws of
the State of Delaware. Except to the extent the Act is inconsistent with the
provisions of this Agreement, the provisions of such Act shall apply to the
Partnership.
17.7 Other Instruments. The parties hereto covenant and agree that
they will execute such other and further instruments and documents as, in the
opinion of the General Partner, are or may become necessary or desirable to
effectuate and carry out the Partnership as provided for by this Agreement.
796300.10
-33-
<PAGE>
17.8 General Partner with Interest as Limited Partner. If the
General Partner ever has an interest as a Limited Partner in the Partnership,
the General Partner shall, with respect to such interest, enjoy all of the
rights and be subject to all of the obligations and duties of a Limited Partner.
17.9 Legal Construction. In case any one or more of the provisions
contained in this Agreement shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision hereof and this Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never been
contained herein.
17.10 Gender. Whenever the context shall so require, all words
herein in any gender shall be deemed to include the masculine, feminine or
neuter gender, all singular words shall include the plural, and all plural
words shall include the singular.
17.11 Prior Agreements Superceded. This Agreement supercedes any
prior understandings or written or oral agreements amongst the Partners, or
any of them, respecting the within subject matter and contains the entire
understanding amongst the Partners with respect thereto.
17.12 No Third Party Beneficiary. The terms and provisions of this
Agreement are for the exclusive use and benefit of the General Partner and the
Limited Partners and shall not inure to the benefit of any other person or
entity.
17.13 Purchase for Investment. Each Partner represents, warrants
and agrees that it has acquired and continues to hold its interest in the
Partnership for its own account for investment only and not for the purpose of,
or with a view toward, the resale or distribution of all any part thereof, nor
with a view toward selling or otherwise distributing such interest or any part
thereof at any particular time or under any predetermined circumstances
provided, however, that in no event shall the exercise of a Partner's conversion
rights under this Agreement be deemed a violation of this covenant. Each Partner
further represents and warrants that it is a sophisticated investor, able and
accustomed to handling sophisticated financial matters for itself, particularly
real estate investments, and that it has a sufficiently high net worth that it
does not anticipate a need for the funds it has invested in the Partnership in
what it understands to be a highly speculative and illiquid investment.
17.14 Waiver. No consent or waiver, express or implied, by any
Partner to or of any breach or default by any other Partner in the performance
by such other Partner of its obligations hereunder shall be deemed or construed
to be a consent to or waiver of any other breach or default in the performance
by such other Partner of the same or any other obligations of such Partner
hereunder. Failure on the part of any Partner to complain of any act or failure
to act on the part of any other Partner or to declare any other Partner in
default, irrespective of how long such failure continues, shall not constitute
a waiver by such Partner of its rights hereunder.
796300.10
-34-
<PAGE>
17.15 Time of Essence. Time is hereby expressly made of the essence
with respect to the performance by the parties of their respective obligations
under this Agreement.
796300.10
-35-
<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed and sworn to as
of the day and year first above written by the General Partner and the Limited
Partner.
GENERAL PARTNER:
---------------
ACADIA REALTY TRUST, a Maryland Real Estate
Investment Trust
By: /s/ Kenneth F. Bernstein
______________________________________
Name: Kenneth F. Bernstein
Title: President
LIMITED PARTNERS:
----------------
/s/ Marvin L. Slomowitz
__________________________________________
/s/ L & J Realty Company
__________________________________________
/s/ Ross Dworman
__________________________________________
/s/ Kenneth F. Bernstein
__________________________________________
796300.10
-36-
<PAGE>
RD Woonsocket, Inc.
RD Abington, Inc.
RD Missouri, Inc.
RD Merrilville, Inc.
RD Elmwood, Inc.
RD Village, Inc.
RD Marley, Inc.
RD Hobson, Inc.
RD Townline, Inc.
RD Whitegate, Inc.
By: /s/ Kenneth F. Bernstein
_____________________________________
Name: Kenneth F. Bernstein
Title: President
RD Properties, L.P. II
RD Properties, L.P. III
RD Properties, L.P. IV
By: /s/ Ross Dworman
____________________________________
Name: Ross Dworman
Title: General Partner
RD Properties, L.P. V
By: RD New York LLC, General Partner
By: /s/ Kenneth B. Bernstein
_______________________________
Name: Kenneth B. Bernstein
Title: Member
796300.10
-37-
<PAGE>
RD Crossroads Associates, L.P.
By: RD Crossroads, Inc., General Partner
By: /s/ Kenneth F. Bernstein
_______________________________
Name: Kenneth F. Bernstein
Title: President
RD Soundview Associates, L.P.
By: RD Soundview Associates, Inc.,
General Partner
By: /s/ Kenneth F. Bernstein
______________________________
Name: Kenneth F. Bernstein
Title: President
RD Smithtown Associates, L.P.
By: RD Smithtown Associates, Inc.,
General Partner
By: /s/ Kenneth F. Bernstein
_____________________________
Name: Kenneth F. Bernstein
Title: President
Homkor Colony, L.P.
By: Homkor Columbia, L.L.C.,
General Partner
By: /s/ James Wise
________________________________
Name: James Wise
Title: Manager
796300.10
-38-
<PAGE>
Marley Associates Limited Partnership
By: RD Marley, Inc., General Partner
By: /s/ Kenneth F. Bernstein
___________________________
Name: Kenneth F. Bernstein
Title: President
RD Bloomfield Associates Limited
Partnership II
By: RD Bloomfield, Inc., its
General Partner
By: /s/ Kenneth F. Bernstein
___________________________
Name: Kenneth F. Bernstein
Title: President
G.O. Associates Limited Partnership
By: RD G.O. Properties, Inc.,
individually and as General
Partner of G.O. Associates
Limited Partnership
By: /s/ Kenneth F. Bernstein
__________________________
Name: Kenneth F. Bernstein
Title: President
Columbia VGH Investors
By: /s/ Ross Dworman
______________________________
Name: Ross Dworman
Title: Managing Partner
796300.10
-39-
<PAGE>
Great Universal Capital Corp.
By: /s/ Mark Krugman
_____________________________
Name: Mark Krugman
Title: Vice President
Evan Frazier Realty LLC
By: /s/ Kenneth F. Bernstein
_____________________________
Name: Kenneth F. Bernstein
Title: Member
RD Greenbelt, Inc.
By: /s/ Kenneth F. Bernstein
_____________________________
Name: Kenneth F. Bernstein
Title: President
KAL Partners L.P.
By: /s/ Gregory Manocherian
_____________________________
Name: Gregory Manocherian
Title: General Partner
/s/ Michael A. Young
__________________________________
/s/ Mindy White
__________________________________
796300.10
-40-
<PAGE>
S & J Roth Revocable Trust
By: /s/ Stephen Roth
_____________________________
Name: Stephen Roth
Title: Trustee
Rabinowitz Family 1991 Trust
By: /s/ Martin J. Rabinowitz
_____________________________
Name: Martin J. Rabinowitz
Title: Trustee
Rabinowitz Family 1986 Trust
By: /s/ Steven M. Rabinowitz, Esq.
______________________________
Name: Steven M. Rabinowitz,Esq.
Title: Trustee
/s/ Perry Kamerman
__________________________________
/s/ Joel Braun
__________________________________
/s/ Eric Newberg
__________________________________
/s/ Robert Masters
__________________________________
796300.10
-41-
<PAGE>
ANNEX A
<TABLE>
<CAPTION>
Percentage
Percentage Percentage Interest of all
Interest of Interest of Partnership
Name of Partner OP Units OP Units Preferred Units Preferred Units Interests
- --------------- -------- ---------- --------------- --------------- ---------------
General Partner
- ---------------
<S> <C> <C> <C> <C> <C>
Company 25,419,215
Limited Partners
- ----------------
Marvin L. Slomowitz 821,000
L & J Realty Company 2,000
Ross Dworman 628,113
Kenneth F. Bernstein 285,369
RD Woonsocket, Inc. 7,540
RD Abington, Inc. 3,684
RD Missouri, Inc. 2,883
RD Merrilville, Inc. 7,799
RD Elmwood, Inc. 5,205
RD Village, Inc. 9,545
RD Marley, Inc. 6,807
RD Hobson, Inc. 5,189
RD Townline, Inc. 5,036
RD Whitegate, Inc. 1,650
RD Properties, L.P. II 986,695
RD Properties, L.P. III 1,287,396
RD Properties, L.P. IV 944,988
RD Properties, L.P. V 2,257,792
RD Crossroads
Associates, L.P. 844,400
</TABLE>
796300.10
-42-
<PAGE>
<TABLE>
<CAPTION>
Percentage
Percentage Percentage Interest of all
Interest of Interest of Partnership
Name of Partner OP Units OP Units Preferred Units Preferred Units Interests
- --------------- -------- ---------- --------------- --------------- ----------------
<S> <C> <C> <C> <C> <C>
RD Soundview
Associates L.P. 632,400
RD Smithtown
Associates L.P. 764,267
Homkor Colony, L.P. 31,333
RD Marley Associates
L.P. 673,860
RD Bloomfield
Associates Limited
Partnership II 712,933
G.O. Associates
Limited Partnership 38,877
Columbia VGH
Investors 96,048
Great Universal Capital
Corp. 220,300
Evan Frazier Realty
LLC 294,434
RD Greenbelt, Inc. 55,011
KAL Partners L.P. 102,068
Michael A. Young 34,005
Mindy White 17,029
S & J Roth Revocable
Trust 25,517
Rabinowitz Family
1991 Trust 21,247
Rabinowitz Family
1986 Trust 21,247
Perry Kamerman 50,000
</TABLE>
796300.10
-43-
<PAGE>
<TABLE>
<CAPTION>
Percentage
Percentage Percentage Interest of all
Interest of Interest of Partnership
Name of Partner OP Units OP Units Preferred Units Preferred Units Interests
- --------------- -------- ---------- --------------- --------------- ----------------
<S> <C> <C> <C> <C> <C>
Joel Braun 6,667
Eric Newberg 8,000
Robert Masters 4,667
-----------
TOTALS 37,342,216 100% 100% 100%
</TABLE>
796300.10
-44-
<PAGE>
ANNEX B
Partner Capital Contribution
- ------- --------------------
The Company $136,500,000
Marvin Slomowitz The properties set forth on
"Schedule B -- The Properties" in
accordance with the terms and
subject to the conditions
contained in the several
purchase and sale agreements,
dated as of June 3, 1993, by and
between the Partnership
and Marvin Slomowitz.
L & J Realty Company (1)
Ross Dworman (1)
Kenneth F. Bernstein (1)
RD Woonsocket, Inc. (1)
RD Abington, Inc. (1)
RD Missouri, Inc. (1)
RD Merrilville, Inc. (1)
RD Elmwood, Inc. (1)
RD Village, Inc. (1)
RD Marley, Inc. (1)
RD Hobson, Inc. (1)
RD Townline, Inc. (1)
RD Whitegate, Inc. (1)
RD Properties, L.P. II (1)
RD Properties, L.P. III (1)
RD Properties, L.P. IV (1)
RD Properties, L.P. V (1)
RD Crossroads Associates, L.P. (1)
RD Soundview Associates L.P. (1)
796300.10
-45-
<PAGE>
Partner Capital Contribution
- ------- --------------------
RD Smithtown Associates L.P. (1)
Homkor Colony, L.P. (1)
RD Marley Associates L.P. (1)
RD Bloomfield Associates Limited (1)
Partnership II
G.O. Associates Limited Partnership (1)
Columbia VGH Investors (1)
Great Universal Capital Corp. (1)
Evan Frazier Realty LLC (1)
RD Greenbelt, Inc. (1)
KAL Partners L.P. (1)
Michael A. Young (1)
Mindy White (1)
S & J Roth Revocable Trust (1)
Rabinowitz Family 1991 Trust (1)
Rabinowitz Family 1986 Trust (1)
Perry Kamerman (1)
Joel Braun (1)
Eric Newberg (1)
Robert Masters (1)
(1) The properties and/or other assets contributed directly or indirectly
by the Limited Partner to the Partnership in accordance with the terms
and conditions in the Contribution and Share Purchase Agreement dated
as of April 15, 1998 between, among others, the Partnership and the
Limited Partner and/or its affiliate.
796300.10
-46-
<PAGE>
909738.9
46
EXHIBIT 10.1(d)
FIRST AND SECOND AMENDMENTS TO THE AMENDED
AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
OF THE OPERATING PARTNERSHIP
FIRST AMENDMENT TO
AMENDED & RESTATED PARTNERSHIP AGREEMENT
----------------------------------------
THIS FIRST AMENDMENT, dated as of November 15, 1999, to the
Amended and Restated Partnership Agreement, dated as of March 22, 1999, (the
"Partnership Agreement"), of ACADIA REALTY LIMITED PARTNERSHIP, a Delaware
limited partnership (the "Partnership"). Capitalized terms used herein but not
defined herein shall have the meanings given such terms in the Partnership
Agreement.
BACKGROUND
----------
Since the date of the Partnership Agreement, certain Limited
Partners have (i) converted their OP Units to Common Shares of the General
Partner and (ii) transferred their OP Units to a new Limited Partner.
The General Partner, pursuant to the exercise of such
authority and in accordance with Section 12(C) of the Partnership Agreement, has
determined to execute this First Amendment to the Partnership Agreement to
evidence the changes to the ownership of OP Units due to the conversion and
transfer of such OP Units.
NOW, THEREFORE, the parties hereto, for good and sufficient
consideration and intending to be legally bound, hereby amend the Partnership
Agreement as follows:
1. Annex "A" of the Partnership Agreement is hereby amended
and restated to reflect (i) changes to the ownership of OP Units due to the
conversion and transfer of certain OP Units and (ii) the admission of Cheerful
Corporation as a new Limited Partner as of ________, 1999 whose authorized
signature appears on the signature page hereto, which Limited Partner shall have
such number of OP Units as is set forth opposite such Limited Partner's name on
Annex "A". Annex "B" of the Partnership Agreement is hereby amended and restated
to reflect the Capital Contribution made by the new Limited Partner.
2. By execution of this First Amendment to the Partnership
Agreement, the new Limited Partner agrees to be bound by each and every term of
the Partnership Agreement as amended hereby from and after the date hereof.
3. This First Amendment may be executed in counterparts,
each of which shall constitute an original, but all together shall constitute
one and the same document.
4. Except as expressly set forth in this First Amendment,
the Partnership Agreement is hereby ratified and confirmed in each and every
respect.
[SIGNATURE PAGE FOLLOWS]
894180.1
<PAGE>
IN WITNESS WHEREOF, this First Amendment to the Limited
Partnership Agreement is executed and delivered as of the date first written
above.
ACADIA REALTY TRUST
By: /s/ Kenneth F. Bernstein
___________________________________
Name: Kenneth F. Bernstein
Title: President
ACADIA REALTY LIMITED PARTNERSHIP
By: Acadia Realty Trust, its General Partner
By: /s/ Kenneth F. Bernstein
___________________________
Name: Kenneth F. Bernstein
Title: President
NEW LIMITED PARTNER:
CHEERFUL CORPORATION
By: ______________________________________
Name:
Title:
894180
2
<PAGE>
AMENDED AND RESTATED
AS OF NOVEMBER 15, 1999
ANNEX "A"
---------
<TABLE>
<CAPTION>
Percentage
Percentage Percentage Interest of all
Interest of Interest of Partnership
Name of Partner OP Units OP Units Preferred Units Preferred Units Interests
- --------------- --------- ---------- --------------- --------------- --------------
General Partner
- ---------------
<S> <C> <C> <C> <C> <C>
Company 24,719,215
Limited Partners
- ----------------
Marvin L. Slomowitz 121,000
L & J Realty Company 2,000
Ross Dworman 533,400
Kenneth F. Bernstein 261,691
RD Woonsocket, Inc. 7,540
RD Abington, Inc. 3,684
RD Missouri, Inc. 2,883
RD Merrilville, Inc. 7,799
RD Elmwood, Inc. 5,205
RD Village, Inc. 9,545
RD Marley, Inc. 6,807
RD Hobson, Inc. 5,189
RD Townline, Inc. 5,036
RD Whitegate, Inc. 1,650
RD Properties, L.P. II 986,695
RD Properties, L.P. III 1,287,396
RD Properties, L.P. IV 944,988
RD Properties, L.P. V 2,257,792
894180.1
A-1
<PAGE>
Percentage
Percentage Percentage Interest of all
Interest of Interest of Partnership
Name of Partner OP Units OP Units Preferred Units Preferred Units Interests
- --------------- --------- ---------- --------------- --------------- --------------
RD Crossroads
Associates, L.P. 844,400
RD Soundview
Associates L.P. 632,400
RD Smithtown
Associates L.P. 764,267
Homkor Colony, L.P. 31,333
RD Marley Associates
L.P. 673,860
RD Bloomfield
Associates Limited
Partnership II 712,933
G.O. Associates
Limited Partnership 38,877
Columbia VGH Investors 96,048
Great Universal Capital
Corp. 220,300
Evan Frazier Realty
LLC 294,434
RD Greenbelt, Inc. 55,011
KAL Partners L.P. 102,068
Michael A. Young 34,005
Mindy White 17,029
S & J Roth Revocable
Trust 25,517
Rabinowitz Family
1991 Trust 21,247
Rabinowitz Family
1986 Trust 21,247
894180.1
A-2
<PAGE>
Percentage
Percentage Percentage Interest of all
Interest of Interest of Partnership
Name of Partner OP Units OP Units Preferred Units Preferred Units Interests
- --------------- --------- ---------- --------------- --------------- --------------
Perry Kamerman 50,000
Joel Braun 6,667
Eric Newberg 8,000
Robert Masters 4,667
Cheerful Corporation 118,391
TOTALS 35,942,216 100% 100% 100%
</TABLE>
894180.1
A-3
<PAGE>
AMENDED AND RESTATED
AS OF NOVEMBER 15, 1999
ANNEX "B"
---------
Partner Capital Contribution
- ------- --------------------
The Company $136,500,000
Marvin Slomowitz The properties
set forth on "Schedule B
-- The Properties" in
accordance with the terms
and subject to the
conditions contained in
the several purchase and
sale agreements, dated as
of June 3, 1993, by and
between the Partnership
and Marvin Slomowitz.
L & J Realty Company (1)
Ross Dworman (1)
Kenneth F. Bernstein (1)
RD Woonsocket, Inc. (1)
RD Abington, Inc. (1)
RD Missouri, Inc. (1)
RD Merrilville, Inc. (1)
RD Elmwood, Inc. (1)
RD Village, Inc. (1)
RD Marley, Inc. (1)
RD Hobson, Inc. (1)
RD Townline, Inc. (1)
RD Whitegate, Inc. (1)
RD Properties, L.P. II (1)
RD Properties, L.P. III (1)
RD Properties, L.P. IV (1)
RD Properties, L.P. V (1)
894180.1
B-1
<PAGE>
Partner Capital Contribution
- ------- --------------------
RD Crossroads Associates, L.P. (1)
RD Soundview Associates L.P. (1)
RD Smithtown Associates L.P. (1)
Homkor Colony, L.P. (1)
RD Marley Associates L.P. (1)
RD Bloomfield Associates Limited
Partnership II (1)
G.O. Associates Limited Partnership (1)
Columbia VGH Investors (1)
Great Universal Capital Corp. (1)
Evan Frazier Realty LLC (1)
RD Greenbelt, Inc. (1)
KAL Partners L.P. (1)
Michael A. Young (1)
Mindy White (1)
S & J Roth Revocable Trust (1)
Rabinowitz Family 1991 Trust (1)
Rabinowitz Family 1986 Trust (1)
Perry Kamerman (1)
Joel Braun (1)
Eric Newberg (1)
Robert Masters (1)
Cheerful Corporation N/A
(1) The properties and/or other assets contributed directly or indirectly by
the Limited Partner to the Partnership in accordance with the terms and
conditions in the Contribution and Share Purchase Agreement dated as of
April 15, 1998 between, among others, the Partnership and the Limited
Partner and/or its affiliate.
894180.1
B-2
<PAGE>
(2) The properties and/or other assets contributed directly or indirectly by
the Limited Partner to the Partnership in accordance with the terms and
conditions in the Agreement of Contribution dated as of November 8, 1999
between, among others, the Partnership and the Limited Partner.
894180.1
B-3
SECOND AMENDMENT TO
AMENDED & RESTATED PARTNERSHIP AGREEMENT
----------------------------------------
THIS SECOND AMENDMENT, dated as of November 18, 1999, to the Amended
and Restated Partnership Agreement, dated as of March 22, 1999, as amended by
the First Amendment dated as of November 15, 1999 (collectively, the
"Partnership Agreement"), of ACADIA REALTY LIMITED PARTNERSHIP, a Delaware
limited partnership (the "Partnership"). Capitalized terms used herein but not
defined herein shall have the meanings given such terms in the Partnership
Agreement.
BACKGROUND
----------
The Partnership is a party to a certain Agreement of Contribution dated
as of November 8, 1999 (the "Contribution Agreement") pursuant to which, among
other things, the Partnership has agreed to acquire partnership interests in
Pacesetter/Ramapo Associates, a New York limited partnership, in consideration
for, among other things, Preferred Units in the Partnership. Pursuant to Section
3.2(B) of the Partnership Agreement, the General Partner of the Partnership has
the power and authority to issue additional Partnership Interests to Persons in
exchange for additional Capital Contributions.
The General Partner, pursuant to the exercise of such authority and in
accordance with Section 12(C) of the Partnership Agreement, has determined to
execute this Second Amendment to the Partnership Agreement to evidence the
issuance of additional Partnership Interests and the admission of the other
signatories hereto (the "Pacesetter Partners") as Limited Partners of the
Partnership.
NOW, THEREFORE, the parties hereto, for good and sufficient
consideration and intending to be legally bound, hereby amend the Partnership
Agreement as follows:
1. Annex "A" of the Partnership Agreement is hereby amended and
restated to reflect the admission as Limited Partners on the date hereof of the
Pacesetter Partners whose authorized signatures appear on the signature page
hereto, each of whom shall have such number of Preferred Units as is set forth
opposite such signatory's name on Annex "A". Annex "B" of the Partnership
Agreement is hereby amended and restated to reflect the Capital Contributions
made by the Pacesetter Partners.
2. The Preferred Units issued hereby shall have the rights,
preferences, privileges and designations set forth in Annex "C" which is hereby
incorporated into the Partnership Agreement.
892155.2
<PAGE>
3. By execution of this Second Amendment to the Partnership
Agreement, each of the Pacesetter Partners agrees to be bound by each and every
term of the Partnership Agreement as amended hereby from and after the date
hereof.
4. This Second Amendment may be executed in counterparts, each of
which shall constitute an original, but all together shall constitute one and
the same document.
5. Except as expressly set forth in this Second Amendment, the
Partnership Agreement is hereby ratified and confirmed in each and every
respect.
[SIGNATURE PAGE FOLLOWS]
2
892155.2
<PAGE>
IN WITNESS WHEREOF, this First Amendment to the Limited Partnership
Agreement is executed and delivered as of the date first written above.
ACADIA REALTY TRUST
By: /s/ Kenneth F. Bernstein
____________________________________
Name: Kenneth F. Bernstein
Title: President
ACADIA REALTY LIMITED PARTNERSHIP
By: Acadia Realty Trust,
its General Partner
By: /s/ Kenneth F. Bernstein
_____________________________
Name: Kenneth F. Bernstein
Title: President
PACESETTER PARTNERS:
/s/ Jay A. Kaiser
________________________________________
/s/ H. Robert Holmes
________________________________________
/s/ Steve Bollerman
________________________________________
AMCAP INCORPORATED
By: _____________________________________
Name:
Title:
LENNOX SECURITIES, INC.
By: _____________________________________
Name:
Title:
3
892155.2
<PAGE>
AMENDED AND RESTATED
AS OF NOVEMBER 18, 1999
ANNEX "A"
---------
<TABLE>
<CAPTION>
Percentage
Percentage Percentage Interest of all
Interest of Interest of Partnership
Name of Partner OP Units OP Units Preferred Units Preferred Units Interests
- --------------- -------- ----------- --------------- --------------- ----------------
<S> <C> <C> <C> <C> <C>
General Partner
- ---------------
Company 24,719,215
Limited Partners
- ----------------
Marvin L. Slomowitz 121,000
L & J Realty Company 2,000
Ross Dworman 533,400
Kenneth F. Bernstein 261,691
RD Woonsocket, Inc. 7,540
RD Abington, Inc. 3,684
RD Missouri, Inc. 2,883
RD Merrilville, Inc. 7,799
RD Elmwood, Inc. 5,205
RD Village, Inc. 9,545
RD Marley, Inc. 6,807
RD Hobson, Inc. 5,189
RD Townline, Inc. 5,036
RD Whitegate, Inc. 1,650
RD Properties, L.P. II 986,695
RD Properties, L.P. III 1,287,396
RD Properties, L.P. IV 944,988
RD Properties, L.P. V 2,257,792
A-1
892155.2
<PAGE>
Percentage
Percentage Percentage Interest of all
Interest of Interest of Partnership
Name of Partner OP Units OP Units Preferred Units Preferred Units Interests
- --------------- -------- ----------- --------------- --------------- ----------------
RD Crossroads Associates, L.P. 844,400
RD Soundview Associates L.P. 632,400
RD Smithtown Associates L.P. 764,267
Homkor Colony, L.P. 31,333
RD Marley Associates L.P. 673,860
RD Bloomfield Associates
Limited Partnership II 712,933
G.O. Associates Limited
Partnership 38,877
Columbia VGH Investors 96,048
Great Universal Capital Corp. 220,300
Evan Frazier Realty LLC 294,434
RD Greenbelt, Inc. 55,011
KAL Partners L.P. 102,068
Michael A. Young 34,005
Mindy White 17,029
S & J Roth Revocable Trust 25,517
Rabinowitz Family 1991 Trust 21,247
Rabinowitz Family 1986 Trust 21,247
892155.2
A-2
<PAGE>
Percentage
Percentage Percentage Interest of all
Interest of Interest of Partnership
Name of Partner OP Units OP Units Preferred Units Preferred Units Interests
- --------------- -------- ----------- --------------- --------------- ----------------
Perry Kamerman 50,000
Joel Braun 6,667
Eric Newberg 8,000
Robert Masters 4,667
Cheerful Corporation 118,391
Jay A. Kaiser
H. Robert Holmes
Steve Bollerman
AmCap Incorporated
Lennox Securities, Inc.
TOTALS 35,942,216 100% 100% 100%
</TABLE>
A-3
892155.2
<PAGE>
AMENDED AND RESTATED
AS OF NOVEMBER 18, 1999
ANNEX "B"
_________
Partner Capital Contribution
- ------- --------------------
The Company $136,500,000
Marvin Slomowitz The properties set forth on
"Schedule B -- The Properties"
in accordance with the terms
and subject to the conditions
contained in the several purchase
and sale agreements, dated as
of June 3, 1993, by and between
the Partnership and Marvin
Slomowitz.
L & J Realty Company (1)
Ross Dworman (1)
Kenneth F. Bernstein (1)
RD Woonsocket, Inc. (1)
RD Abington, Inc. (1)
RD Missouri, Inc. (1)
RD Merrilville, Inc. (1)
RD Elmwood, Inc. (1)
RD Village, Inc. (1)
RD Marley, Inc. (1)
RD Hobson, Inc. (1)
RD Townline, Inc. (1)
RD Whitegate, Inc. (1)
RD Properties, L.P. II (1)
RD Properties, L.P. III (1)
RD Properties, L.P. IV (1)
RD Properties, L.P. V (1)
B-1
892155.2
<PAGE>
Partner Capital Contribution
- ------- --------------------
RD Crossroads Associates, L.P. (1)
RD Soundview Associates L.P. (1)
RD Smithtown Associates L.P. (1)
Homkor Colony, L.P. (1)
RD Marley Associates L.P. (1)
RD Bloomfield Associates
Limited Partnership II (1)
G.O. Associates
Limited Partnership (1)
Columbia VGH Investors (1)
Great Universal Capital Corp. (1)
Evan Frazier Realty LLC (1)
RD Greenbelt, Inc. (1)
KAL Partners L.P. (1)
Michael A. Young (1)
Mindy White (1)
S & J Roth Revocable Trust (1)
Rabinowitz Family 1991 Trust (1)
Rabinowitz Family 1986 Trust (1)
Perry Kamerman (1)
Joel Braun (1)
Eric Newberg (1)
Robert Masters (1)
Cheerful Corporation N/A
Jay A. Kaiser (2)
H. Robert Holmes (2)
Steve Bollerman (2)
B-2
892155.2
<PAGE>
Partner Capital Contribution
- ------- --------------------
AmCap Incorporated (2)
Lennox Securities, Inc. (2)
(1) The properties and/or other assets contributed directly or
indirectly by the Limited Partner to the Partnership in accordance
with the terms and conditions in the Contribution and Share Purchase
Agreement dated as of April 15, 1998 between, among others, the
Partnership and the Limited Partner and/or its affiliate.
(2) The properties and/or other assets contributed directly or
indirectly by the Limited Partner to the Partnership in accordance
with the terms and conditions in the Agreement of Contribution dated
as of November 8, 1999 between, among others, the Partnership and the
Limited Partner.
B-3
892155.2
<PAGE>
909738.9
47
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3 No. 333-_______) and related Prospectus of
Acadia Realty Trust for the registration of 26,719,319 shares of its common
shares of beneficial interest and to the incorporation by reference therein of
our report dated March 15, 1999 with respect to the consolidated financial
statements and schedule of Acadia Realty Trust included in its Annual Report
(Form 10-K) for the year ended December 31, 1998, filed with the Securities and
Exchange Commission.
/s/ ERNST & YOUNG LLP
---------------------
New York, New York
March 2, 2000
909738.9
48
EXHIBIT 99.1(a)
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
(RD Capital Transaction)
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
THIS REGISTRATION RIGHTS AND LOCK-UP AGREEMENT (this "Agreement"), is
made by and among Mark Centers Trust, a Maryland real estate investment trust
(the "Company"), RD Properties, L.P. VI, RD Properties, L.P. VIA, and RD
Properties, L.P. VIB, each a Delaware limited partnership (individually, an "RDC
Fund" and collectively, the "RDC Funds"), and each of the Owners (as such term
is defined in that certain Contribution and Share Purchase Agreement (the
"Contribution Agreement") among the Contributing Owners (as defined in the
Contribution Agreement), the Trust, the Fund, the Contributing Entities (as
defined in the Contribution Agreement) and Mark Centers Limited Partnership, a
Delaware limited partnership ( the "Partnership"), who are receiving limited
partnership interests in the Partnership ("OP Units") and/or common shares of
beneficial interest in the Trust at the Closing (the "Closing Date") of the
transactions contemplated by the Contribution Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, and intending to be legally bound hereby, the
Company, the RDC Funds and the Contributing Owners 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 OP Units from time to time by the Owners.
(c) "Exchange Act" means the Securities Exchange Act of 1934 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) "Fund Shares" means the Shares to be issued to the RDC Funds in
consideration of the Cash Investment (as such term is defined in the
Contribution Agreement).
(e) "Holder(s)" means a record holder of Registrable Shares
entitled to the rights arising hereunder.
(f) "Participating Holder" means a Holder whose Registrable Shares
are included in a Registration Statement.
(g) "Registration Expenses" means the expenses described in Section
6 hereof.
743441.2
1
<PAGE>
(h) "Registration Statement" means a registration statement filed
by the Company with the Commission for a public offering and sale of equity
securities of the Company (other than a registration statement on Form S-8 or
Form S-4, or their successors, or any other form for a limited purpose, or any
registration statement covering only securities proposed to be issued in
exchange for securities or assets of another corporation).
(i) "Registrable Shares" means the Fund Shares and the Conversion
Shares and any other Shares issued in respect of such shares (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 as 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; provided, however, that notwithstanding the
provisions of clause (y), for purposes of such clause (y), the Fund Shares shall
be deemed to be Registrable Shares until 42 months after the Closing Date.
(j) "Securities Act" means the Securities Act of 1933 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.
(k) "Shares" means Common Shares of Beneficial Interest of the
Company, par value $.001 per share.
2. Piggy-Back Registration.
(a) If at any time and from time to time during the period
commencing upon the first anniversary of the Closing Date (the "Anniversary
Date") and ending upon the earlier of (i) such time as when all of the
Registrable Shares have been disposed of and (ii) three years after the
conversion into Shares of all OP Units issued under the Contribution Agreement,
the Company proposes to file a Registration Statement, it will, prior to such
filing, give written notice to the RDC Funds and to the Owners of its intention
to do so and, upon the written request of the RDC Funds and the Owners given
within 20 days after the Company provides such notice (which request shall
specify the number Registrable Shares intended to be disposed of by each RDC
Fund and such responding Owner and the intended method of disposition thereof),
the Company, subject to the provisions hereof, shall use commercially reasonable
efforts to cause all Registrable Shares which the Company has been requested by
the RDC Funds and the Owners to register to be registered under the Securities
Act to the extent necessary to permit their sale or other disposition in
accordance with the intended methods of distribution specified in the request of
the RDC Funds and the Owners; provided, that the Company shall have the right to
postpone or withdraw any registration effected pursuant to this Section 2(a)
hereof without obligation or liability to the RDC Funds and the Owners.
(b) In connection with any offering under this Section 2 involving
an underwriting, the Company shall not be required to include any Registrable
Shares in such underwriting unless the Participating Holders accept the terms of
the underwriting as agreed upon between the Company and the underwriters
selected by it, and then only in such quantity as will not, in the opinion of
the underwriters, jeopardize the success of the offering by and for the account
of the
743441.2
2
<PAGE>
Company. If, in the opinion of the managing underwriter, the registration of
all, or part of, theRegistrable Shares which the holders thereof have requested
be included would materially and adversely affect such public offering, then the
Company shall be required to include in the underwriting only that number of
Registrable Shares, if any, which the managing underwriter believes may be sold
without causing such material and adverse effect. If the number of Registrable
Shares to be included in the underwriting in accordance with the foregoing is
less than the total number of Registrable Shares which the holders thereof have
requested be included, then the holders of the Registrable Shares shall
participate in the underwriting pro rata based upon the relative number of
Shares each holder of such other securities has requested be included in such
registration; provided, however, that nothing herein shall be construed to
modify or otherwise impair or limit the rights of any holder of Shares or other
person to whom registration rights have been granted by the Company prior to the
date hereof and where such rights would be superior to the rights of the Holders
of Registrable Shares.
3. Demand Registration Rights. Upon the request of either (i) the RDC
Funds or (ii) the Owners owning of record not less than sixty-five percent (65%)
of the Registrable Shares owned of record by all Owners (the "Demanding
Holders"), subject to the provisions hereof, the Company will use commercially
reasonable efforts to cause such of the Registrable Shares as may be requested
by the RDC Funds and/or the Demanding Holders to be registered under the
Securities Act as promptly as possible. The Company shall not be required to
effect more than two registrations per year pursuant to this Section 3;
provided, however, that each obligation shall be deemed satisfied when a
Registration Statement covering Registrable Shares specified in notices received
as aforesaid, for sale in accordance with the method of disposition specified by
the RDC Funds and/or the Demanding Holders shall become effective and shall have
remained effective for at least 60 days (provided that if the reason the
Registration Statement does not become effective is as a direct result of the
gross negligence or willful misconduct of any one or more of the RDC Funds or
another Demanding Holder, such attempt at registration shall satisfy the
requirements of a "demand" registration under this Section 3). The Company will
be entitled to include in any registration statement referred to in this Section
3 for sale in accordance with the method of disposition specified above,
securities to be sold by the Company for its own account and securities of any
other holder having registration rights, unless in the opinion of the managing
underwriter (if such method of disposition shall be an underwritten public
offering), such inclusion would materially and adversely affect the marketing of
the Registrable Shares to be sold.
4. Certain Shelf Registration. In addition to the registration rights
granted by the Company in Sections 2 and 3 hereof, on the Anniversary Date or as
soon thereafter as is reasonably practicable, the Company shall, at its expense,
use commercially reasonable efforts to register the Registrable Shares for
resale including for issuance upon conversion or exchange of OP Units, through a
shelf Registration Statement pursuant to Rule 415 under the Securities Act,
which shelf Registration Statement shall cover only the Registrable Shares. The
Company 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 of all of the OP Units issued under
the Contribution Agreement into Shares.
743441.2
3
<PAGE>
5. Registration Procedures. If and whenever the Company is required by
the provisions of this Agreement to effect the registration of any of the
Registrable Shares under the Securities Act, the Company shall:
(a) prepare and file with the Commission a Registration Statement
with respect to such Registrable Shares and use commercially reasonable efforts
to cause that Registration Statement to become and remain effective, provided,
however, that the Company may discontinue any registration of its securities
which is being effected pursuant to Section 2 herein at any time prior to the
effective date of the Registration Statement relating thereto;
(b) subject to the provision of Section 4, as soon as reasonably
practicable 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 until
the earlier of (i) the period of time required by the Commission, or (ii) 180
days from the effective date for registrations pursuant to Section 2 and 60 days
from the effective date for registrations pursuant to Section 3;
(c) as soon as reasonably practicable 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;
(d) as soon as reasonably practicable 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 Company shall not be required in connection with
this subsection 5(d) to: (i) qualify as a foreign corporation in any
jurisdiction where, but for the requirements of this subsection 5(d), 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 Company securities held by any security
holder other than the Participating Holders; and
(e) if an underwritten public offering, obtain a comfort letter
from the Company's independent public accountants in customary form and covering
such matters of the type customarily covered by comfort letters and an opinion
from the Company's counsel in the form filed as an exhibit to the Registration
Statement, in each case addressed to the Participating Holders.
If the Company 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 Company 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 Company. The Company 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.
743441.2
4
<PAGE>
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, Chief Operating Officer or Chief Financial Officer
of the Company, to the effect set forth below, the Company 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 Company's reasonable judgment,
(i) there is a development involving the Company 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 unwritten
public offering for the account of the Company or any other material financing
project where a proposed or pending material merger or other material
acquisition or material business combination or material disposition of the
Company's assets, to which the Company 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 Company is obligated keep a Registration Statement effective
the number of days for which the Registration Statement was postponed or sales
were suspended.
6. Expenses of Registration. The Company 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 Company 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 Company and the reasonable fees and
disbursements of one counsel selected by the Participating Holders, the fees and
disbursements of the Company'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.
7. 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 Company 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 Registration Statement under
which such Registrable Shares were registered under the Securities Act, any
preliminary prospectus or final prospectus contained in the Registration
Statement, or any amendment or supplement to such Registration Statement, or
arise out of or are based upon the omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading;
and the Company will reimburse such Participating Holder and each such
controlling person for any legal or any other expenses reasonably incurred by
such Participating Holder or controlling person in connection with investigating
or defending any such loss, claim, damage, liability or action; provided,
however, that the Company will not be liable in any such case to
743441.2
5
<PAGE>
the extent that any such loss, claim, damage or liability arises
out of or is based upon any untrue statement or omission made in such
Registration Statement, preliminary prospectus or prospectus, or any such
amendment or supplement, in reliance upon and in conformity with information
furnished to the Company, in writing, by or on behalf of any Participating
Holder or controlling person specifically for use in the preparation thereof;
and provided further, however, that any indemnification contained in this
paragraph with respect to any preliminary prospectus shall not inure to the
benefit of any person who otherwise is entitled to indemnification hereunder on
account of any loss, liability, claim, damage or expense if a copy of an amended
or supplemental preliminary prospectus, or the final prospectus, shall have been
delivered or sent to such person within the time required by the Securities Act,
and the untrue statement or omission of a material fact was corrected in such
amended or supplemental preliminary prospectus or final prospectus and provided
that such person did not deliver such amended or supplemental preliminary
prospectus or final prospectus on a timely basis.
(b) Indemnification of the Company. In the event of any
registration of any of the Registrable Shares under the Securities Act pursuant
to this Agreement, each Participating Holder will indemnify and hold harmless
the Company, each of its directors and officers and each person, if any, who
controls the Company within the meaning of the Securities Act or the Exchange
Act, against any losses, claims, damages or liabilities, joint or several, to
which the Company, such directors and officers or controlling persons may become
subject under the Securities Act, 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 a material fact contained in any Registration Statement under which
such Registrable Shares were registered under the Securities Act, any
preliminary prospectus or final prospectus contained in the Registration
Statement, or any amendment or supplement to the Registration Statement, or
arise out of or are based upon any omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading,
if the statement or omission was made in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of such
Participating Holder or controlling person, specifically for use in connection
with the preparation of such Registration Statement, prospectus, amendment or
supplement. No Participating Holder shall be liable pursuant to this Section
7(b) for any amount in excess of the proceeds of the offering received by such
Participating Holder.
(c) Notice of Claim. Each party entitled to indemnification under
this Section 7 (the "Indemnified Party") shall give notice to the party required
to provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom; provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not be
unreasonably withheld); and, provided, further, that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 7 unless the failure to
provide such notice materially prejudices the defense by the Indemnifying Party
against such claim. The Indemnified Party may participate in such defense at
such party's expense (provided that the counsel of the Indemnifying Party shall
control the defense of such claim or proceeding); provided, however, that the
Indemnifying Party shall pay such expense if representation of such Indemnified
Party by the counsel retained by the Indemnifying Party would, in the opinion of
counsel of the Indemnified Party, be inappropriate due to actual or potential
743441.2
6
<PAGE>
differing interests between the Indemnified Party and any other party
represented by such counsel in such proceeding, it being understood, however,
that in such event, the Indemnifying Party shall be liable for the reasonable
fees and expenses of only one counsel for the Indemnified Parties. No
Indemnifying Party, in the defense of any such claim or litigation shall as to
an Indemnified Party, except with the consent of such Indemnified Party, consent
to entry of any judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect of such claim or
litigation, and no Indemnified Party shall consent to entry of any judgment or
settle such claim or litigation without the prior written consent of the
Indemnifying Party.
8. Underwriting Agreement. In the event that Registrable Shares are
sold pursuant to a Registration Statement in an underwritten offering, each
Participating Holder agrees to enter into an underwriting agreement in customary
form with the underwriter or underwriters selected for the underwriting
(together with the Company and other holders of securities distributing their
Shares through such underwriting), containing customary representations and
warranties with respect to such Participating Holder, including without
limitation, customary provisions with respect to indemnification by such
Participating Holder of the underwriters of such offering.
9. Rule 144. The Company covenants that it will file the reports
required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the Commission thereunder (or, if the Company
is not required to file such reports, it will, upon the request of the holders
of the Registrable Securities, make publicly available such information as
necessary to permit sales pursuant to Rule 144 under the Securities Act) and it
will do all such other acts and things from time to time as reasonably requested
by the holders of the Registrable Securities to the extent required from time to
time to enable the holders of the Registrable Shares to sell Registrable Shares
without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereunder adopted
by the Commission.
10. Cooperation. The Holders shall furnish to the Company such
information regarding the Holders and the distribution proposed by Participating
Holders as the Company may from time to time request in writing, and shall do
such reasonable acts and things as the Company may from time to time request,
with respect to any registration, qualification or compliance referred to in
this Agreement and in order to permit the Company to comply with the
requirements of law. Any failure by a Holder to make available such information
or to do such acts and things shall constitute a waiver by such Holder of its
rights to include such Holder's Registrable Shares in any such registration.
11. Standstill. Each Holder, if requested by the Company and an
underwriter of Shares or other securities of the Company, shall agree not to
sell or otherwise transfer or dispose of any Registrable Shares or other
securities of the Company held by such Holder for a specified period of time
(not to exceed 180 days) following the effective date of a Registration
Statement. Such agreement shall be in writing in a form satisfactory to the
Company and such underwriter. The Company may impose stop transfer instructions
with respect to the Registrable Shares or other securities subject to the
foregoing restriction until the end of the standstill period.
743441.2
7
<PAGE>
12. Restriction on Resale. Unless otherwise agreed by the Company,
until the date on which there are no Registrable Shares, each Holder agrees that
it will not resell such Registrable Shares without registration under the
Securities Act, compliance with Rule 144 under the Securities Act or an opinion
of counsel for the Company, addressed to the Company, to the effect that no such
registration is required. All reasonable costs, fees and expenses of counsel in
connection with such opinion shall be borne by the Company.
13. Lock-Up Agreement. In consideration of the Company's agreement to
provide the Holders with the registration rights as set forth in this Agreement,
each RDC Fund and each Contributing Owner receiving OP Units or Shares agrees
with the Partnership and the Trust that each will not sell, transfer, assign, or
otherwise transfer the OP Units or the Shares to be issued at the Closing (or
Conversion Shares) for one year after the Closing. Notwithstanding the
foregoing, the aforementioned prohibition shall not apply to a transfer of OP
Units (which shall nonetheless comply with any requirements or conditions to
transfer in the Partnership Agreement of the Partnership) or Shares to a
Permitted Transferee or bona fide pledge of OP Units or Shares (provided that
the pledgee agrees to be bound by the terms of this Agreement as if an original
signatory thereto). For purposes of this Section 13, the term "Permitted
Transferees" means (i) any partner or other equity owner of an RDC Fund or an
Owner; (ii) any equity owner of any partner or other equity owner of an RDC Fund
or an Owner; (iii) members of the Immediate Family (as defined below) of any
equity owner of an RDC Fund or an Owner (or any equity thereof) and trusts for
the benefit of one or more members of the Immediate Family of an RDC Fund or an
Owner (or any equity owner thereof) created for estate and/or gift tax purposes
and/or (iv) any public charity, public foundation or charitable institution as
defined in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended.
For purposes of this Section 13, the term "Immediate Family" means, with respect
to any natural person, such natural person's spouse, parents, parents-in-law,
descendants, nephews, nieces, brothers, sisters, brothers-in- law,
sisters-in-law and children-in-law. A transfer to any Permitted Transferee shall
not be deemed effective, and the Company may issue stop transfer instructions to
its transfer agent of the Shares in connection with a purported transfer, unless
and until the transferor shall give the Company written notice stating the name
and address of the Permitted Transferee and identifying the securities which are
being transferred and the Company shall have received the written agreement of
the Permitted Transferee to be bound by the terms of this Agreement as if an
original signatory hereto.
14. Miscellaneous.
(a) Controlling Law. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania.
(b) Notices. All notices and other communications hereunder shall
be in writing and shall be sent by certified mail, postage prepaid, return
receipt requested; by an overnight express courier service that provides written
confirmation of delivery; or by facsimile with written confirmation by the
sending machine or with telephone confirmation of receipt, addressed as follows:
743441.2
8
<PAGE>
(i) If to Company:
Mark Centers Trust
600 Third Avenue
Kingston, PA 18704-1679
Attention: Chief Executive Officer
(ii) If to a Holder, to the address of such Holder
appearing below the Holder's signature on the
signature page hereof:
Any party may alter the address to which communications or copies are
to be sent by giving notice of such change of address in conformity with the
provisions of this paragraph for the giving of notice. Notices given hereunder
shall be deemed received upon actual receipt thereof or, in the case of notice
by mail, upon two days from the date notice is first deposited in the mail in
the manner provided above
(c) Binding Nature of Agreement. This Agreement shall be binding
upon and inure to the benefit of Company and its successors and assigns and
shall be binding upon each Holder and its heirs, personal properties, successors
and assigns.
(d) Transfer or Assignment of Registration Rights. Subject to
Section 13 hereof, the rights with respect to any Registrable Shares to cause
the Company to register such securities granted to a Holder by the Company under
this Agreement may be transferred or assigned by a Holder, in whole or in part,
to a transferee or assignee of any Registrable Shares (or any OP Units which are
convertible, exercisable or redeemable, directly or indirectly, for Registrable
Shares); provided that, in such case, the Company shall be given written notice
stating the name and address of said transferee or assignee and identifying the
securities with respect to which such registration rights are being transferred
or assigned and the Company shall have received the written agreement of such
transferee or assignee to be bound by the terms of this Agreement.
(e) Execution in Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually taken together, shall
bear the signatures of all of the parties reflected hereon as the signatories.
(f) Provisions Separable. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
(g) Entire Agreement. This Agreement contains the entire
understanding among the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied, oral or written,
except as herein contained. This Agreement may not be modified or amended other
than by an agreement in writing.
743441.2
9
<PAGE>
(h) Paragraph Headings. The paragraph headings in this Agreement
are for convenience only; they form no part of this Agreement and shall not
affect its interpretation.
[Signature page follows]
743441.2
10
<PAGE>
IN WITNESS WHEREOF, the parties executed and delivered this Agreement
on the date first above written.
MARK CENTERS TRUST
By: /s/ Joshua Kane
________________________________________
/s/ Ross Dworman
--------------------------------------------
/s/ Kenneth F. Bernstein
--------------------------------------------
RD PROPERTIES, L.P. II
By: /s/ Ross Dworman
________________________________________
Name: Ross Dworman
Title: General Partner
RD PROPERTIES, L.P. III
By: /s/ Ross Dworman
________________________________________
Name: Ross Dworman
Title: General Partner
743441.2
11
<PAGE>
RD PROPERTIES, L.P. IV
By: /s/ Ross Dworman
________________________________________
Name: Ross Dworman
Title: General Partner
RD PROPERTIES, L.P. V
By: RD New York, LLC,
General Partner
By: /s/ Kenneth F. Bernstein
________________________________________
Name: Kenneth F. Bernstein
Title: Member
RD PROPERTIES L.P. VI
By: RD New York VI LLC,
General Partner
By: /s/ Ross Dworman
________________________________________
Name: Ross Dworman
Title: Member
RD CROSSROADS ASSOCIATES, L.P.
By: RD Crossroads, Inc.,
General Partner
By: /s/ Kenneth F. Bernstein
________________________________________
Name: Kenneth F. Bernstein
Title: Vice President
743441.2
12
<PAGE>
RD SOUNDVIEW ASSOCIATES, L.P.
By: RD Soundview Associates Inc.,
General Partner
By: /s/ Ross Dworman
________________________________________
Name: Ross Dworman
Title: President
RD SMITHTOWN ASSOCIATES, L.P.
By: RD Smithtown Associates, Inc.,
General Partner
By: /s/ Kenneth F. Bernstein
________________________________________
Name: Kenneth F. Bernstein
Title: Vice President
RD BLOOMFIELD ASSOCIATES LIMITED
PARTNERSHIP II
By: RD Bloomfield, Inc.
By: /s/ Ross Dworman
________________________________________
Name: Ross Dworman
Title: President
743441.2
13
<PAGE>
HOMKOR COLONY, L.P.
By: HOMKOR COLUMBIA, LLC
By: /s/ James Wisc
________________________________________
G.O. ASSOCIATES LIMITED PARTNERSHIP
By: RD G.O. Properties, Inc.,
individually and as General Partner
of G.O. Associates Limited Partnership
By: /s/ Kenneth F. Bernstein
________________________________________
Name: Kenneth F. Bernstein
Title: Vice President
RD G.O. PROPERTIES, L.P.
By: RD Greenbelt, Inc., General Partner
By: /s/ Kenneth F. Bernstein
________________________________________
Name: Kenneth F. Bernstein
Title: President
COLUMBIA VGH INVESTORS
By: /s/ Ross Dworman
________________________________________
Name: Ross Dworman
Title: Managing Partner
743441.2
14
<PAGE>
RD PROPERTIES L.P. VIA
By: RD New York VI LLC,
General Partner
By: /s/ Ross Dworman
________________________________________
Name: Ross Dworman
Title: Member
RD PROPERTIES L.P. VIB
By: RD New York VI LLC,
General Partner
By: /s/ Ross Dworman
________________________________________
Name: Ross Dworman
Title: Member
GREAT UNIVERSAL CAPITAL CORP.
By: /s/ Mark Krugman
________________________________________
Name: Mark Krugman
Title: Vice President
743441.2
15
<PAGE>
RD MARLEY ASSOCIATES LIMITED PARTNERSHIP
By: RD Marley Partners
By: RD Marley, Inc.
By: /s/ Ross Dworman
________________________________________
Name: Ross Dworman
Title: President
/s/ Perry Kamerman
--------------------------------------------
/s/ Joel Braun
--------------------------------------------
/s/ Eric Newberg
--------------------------------------------
/s/ Robert Masters
--------------------------------------------
743441.2
16
<PAGE>
909738.9
49
EXHIBIT 99.1(b)
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
(Pacesetter Transaction)
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
THIS REGISTRATION RIGHTS AND LOCK-UP AGREEMENT (this "Agreement"), is
made and entered into as of November __, 1999, by and among Acadia Realty Trust,
a Maryland business trust (the "REIT"), Acadia Realty Limited Partnership, a
Delaware limited partnership (the "Partnership"), and the undersigned partners
(each, a "Pacesetter Partner") of Pacesetter/Ramapo Associates, a New York
limited partnership ("Associates"), which, at the Closing (the "Closing Date")
of the transactions contemplated by the Purchase and Sale Agreement by and among
Associates, the REIT, the Partnership and Acadia Pacesetter LLC., a Delaware
limited liability company (the "Purchase Agreement"), are receiving preferred
units of limited partnership interests in the Partnership ("Preferred Units")
which are convertible into common units of limited partnership interest in the
Partnership ("OP Units"), which in turn, 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 each of the Pacesetter Partners 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 OP 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).
(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
780228.7
- 1 -
<PAGE>
(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. Upon the written request of any Holder
given no sooner than 90 days prior to the end of the Lock-Up Period (as defined
herein), the REIT shall, at any time or, from time to time, at its expense,
register the Registrable Shares for resale including for issuance upon
conversion or exchange of OP Units, through a shelf Registration Statement
pursuant to Rule 415 under the Securities Act, which the REIT shall use its best
efforts to file within 90 days after the receipt of the request by such Holder.
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 OP Units
issued upon conversion of the Preferred Units issued under the Purchase
Agreement.
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
(e) promptly use best 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(d) to: (i) qualify as a foreign corporation
in any jurisdiction where, but for the requirements of this subsection 3(d), it
would not be obligated to be so qualified; (ii)
780228.7
- 2 -
<PAGE>
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, Chief Operating Officer 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.
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 Registration Statement under which such
Registrable Shares were registered under the Securities Act, any
780228.7
- 3 -
<PAGE>
preliminary prospectus or final prospectus contained in the Registration
Statement, or any amendment or supplement to such Registration Statement, or
arise out of or are based upon the omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading;
and the REIT will reimburse such Participating Holder and each such controlling
person for any legal or any other expenses reasonably incurred by such
Participating Holder or controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the REIT will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any untrue
statement or omission made in such Registration Statement, preliminary
prospectus or prospectus, or any such amendment or supplement, in reliance upon
and in conformity with information furnished to the REIT, in writing, by or on
behalf of any Participating Holder or controlling person specifically for use in
the preparation thereof; and provided further, however, that any indemnification
contained in this paragraph with respect to any preliminary prospectus shall not
inure to the benefit of any person who otherwise is entitled to indemnification
hereunder on account of any loss, liability, claim, damage or expense if a copy
of an amended or supplemental preliminary prospectus, or the final prospectus,
shall have been delivered or sent to such person within the time required by the
Securities Act, and the untrue statement or omission of a material fact was
corrected in such amended or supplemental preliminary prospectus or final
prospectus and provided that such person did not deliver such amended or
supplemental preliminary prospectus or final prospectus on a timely basis.
(b) Indemnification of the REIT. In the event of any registration
of any of the Registrable Shares under the Securities Act pursuant to this
Agreement, each Participating Holder will indemnify and hold harmless the REIT,
each of its directors and officers and each person, if any, who controls the
REIT within the meaning of the Securities Act or the Exchange Act, against any
losses, claims, damages or liabilities, joint or several, to which the REIT,
such directors and officers or controlling persons may become subject under the
Securities Act, 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 a
material fact contained in any Registration Statement under which such
Registrable Shares were registered under the Securities Act, any preliminary
prospectus or final prospectus contained in the Registration Statement, or any
amendment or supplement to the Registration Statement, or arise out of or are
based upon any omission or alleged omission to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, in each case only if such
statement or omission was made in reliance upon and in conformity with
information furnished in writing to the REIT by or on behalf of such
Participating Holder or controlling person, specifically for use in connection
with the preparation of such Registration Statement, prospectus, amendment or
supplement. No Participating Holder shall be liable pursuant to this Section
5(b) for any amount in excess of the proceeds of the offering received by such
Participating Holder.
(c) Notice of Claim. Each party entitled to indemnification under
this Section 5 (the "Indemnified Party") shall give notice to the party required
to provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom; provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not be
unreasonably withheld); and, provided, further, that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 5 unless the failure to
provide such notice materially prejudices the defense by the Indemnifying Party
780228.7
- 4 -
<PAGE>
against such claim. The Indemnified Party may participate in such defense at
such party's expense (provided that the counsel of the Indemnifying Party shall
control the defense of such claim or proceeding); provided, however, that the
Indemnifying Party shall pay such expense if representation of such Indemnified
Party by the counsel retained by the Indemnifying Party would, in the opinion of
counsel of the Indemnified Party, be inappropriate due to actual or potential
differing interests between the Indemnified Party and any other party
represented by such counsel in such proceeding, it being understood, however,
that in such event, the Indemnifying Party shall be liable for the reasonable
fees and expenses of only one counsel for the Indemnified Parties. No
Indemnifying Party, in the defense of any such claim or litigation shall as to
an Indemnified Party, except with the consent of such Indemnified Party, consent
to entry of any judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect of such claim or
litigation, and no Indemnified Party shall consent to entry of any judgment or
settle such claim or litigation without the prior written consent of the
Indemnifying Party.
6. Rule 144. The REIT covenants that it will file the reports required
to be filed by it under the Securities Act and the Exchange Act and the rules
and regulations adopted by the Commission thereunder (or, if the REIT is not
required to file such reports, it will, upon the request of the holders of the
Registrable Securities, make publicly available such information as necessary to
permit sales pursuant to Rule 144 under the Securities Act) and it will do all
such other acts and things from time to time as reasonably requested by the
holders of the Registrable Securities to the extent required from time to time
to enable the holders of the Registrable Shares to sell Registrable Shares
without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereunder adopted
by the Commission.
7. Cooperation. The Holders shall furnish to the REIT such information
regarding the Holders and the distribution proposed by Participating Holders as
the REIT may from time to time reasonably request in writing, and shall do such
reasonable acts and things as the REIT may from time to time request, with
respect to any registration, qualification or compliance referred to in this
Agreement and in order to permit the REIT to comply with the requirements of
law. Any failure by a Holder to make available such information or to do such
acts and things shall constitute a waiver by such Holder of its rights to
include such Holder's Registrable Shares in any such registration.
8. Standstill. Each Holder, if requested by the REIT and an
underwriter of Shares or other securities of the REIT, shall agree not to sell
or otherwise transfer or dispose of any Registrable Shares or other securities
of the REIT held by such Holder for a specified period of time (not to exceed 90
days) following the effective date of a Registration Statement. Such agreement
shall be in writing in a form satisfactory to the REIT and such underwriter. The
REIT may impose stop transfer instructions with respect to the Registrable
Shares or other securities subject to the foregoing restriction until the end of
the standstill period.
9. Restriction on Resale. Unless otherwise agreed by the REIT, until
the date on which there are no Registrable Shares, each Holder agrees that it
will not resell such Registrable Shares without registration under the
Securities Act, compliance with Rule 144 under the Securities Act or an opinion
of counsel for such Holder reasonably acceptable to the REIT, addressed to the
REIT, to the effect that no such registration is required. All reasonable costs,
fees and expenses of counsel in connection with such opinion shall be borne by
the REIT.
780228.7
- 5 -
<PAGE>
10. Lock-Up Agreement. In consideration of the REIT's agreement to
provide the Holders with the registration rights as set forth in this Agreement,
each of the Pacesetter Partners agrees with the REIT and the Partnership that it
will not sell, assign, or otherwise transfer the OP Units to be issued at the
Closing (or Conversion Shares) for a period of one year commencing on the
Closing Date (the "Lock-Up Period"). Notwithstanding the foregoing, the
aforementioned prohibition shall not apply to (x) conversion to OP Units; (y) a
transfer of OP Units (which shall nonetheless comply with any requirements or
conditions to transfer in the Partnership Agreement of the Partnership) or
Conversion Shares to a Permitted Transferee; or (z) bona fide pledge of OP Units
or Conversion Shares (provided that the pledgee agrees to be bound by the terms
of this Agreement as if an original signatory thereto). For purposes of this
Section 10, the term "Permitted Transferees" means (i) any partner or other
equity owner of the Partnership or Associates; (ii) any equity owner of any
partner or other equity owner of the Partnership or Associates; (iii) members of
the Immediate Family (as defined below) of any person described in (i) or (ii);
and (iv) trusts for the benefit of, or entities controlled by, one or more of
the persons described in (i), (ii) or (iii); and/or (v) any public charity,
public foundation or charitable institution as defined in Section 501(c)(3) of
the Internal Revenue Code of 1986, as amended. For purposes of this Section 10,
the term "Immediate Family" means, with respect to any natural person, such
natural person's spouse, parents, parents-in-law, descendants, nephews, nieces,
brothers, sisters, brothers-in-law, sisters-in-law and children- in-law
(including adopted persons). A transfer to any Permitted Transferee shall not be
deemed effective, and the REIT may issue stop transfer instructions to its
transfer agent of the Shares in connection with a purported transfer, unless and
until the transferor shall give the REIT written notice stating the name and
address of the Permitted Transferee and identifying the securities which are
being transferred and the REIT shall have received the written agreement of the
Permitted Transferee to be bound by the terms of this Agreement as if an
original signatory hereto.
11. Miscellaneous.
(a) Controlling Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
(b) Notices. All notices and other communications hereunder shall
be in writing and shall be sent by certified mail, postage prepaid, return
receipt requested; by an overnight express courier service that provides written
confirmation of delivery; or by facsimile with written confirmation by the
sending machine or with telephone confirmation of receipt, addressed as follows:
(i) If to REIT:
Acadia Realty Trust
20 Soundview Marketplace
Port Washington, NY 11050
Attention: Secretary
(ii) If to a Pacesetter Partner:
c/o AmCap Incorporated
1281 East Main Street
Stamford, CT 06092
Attn: Mr. Jay Kaiser
780228.7
- 6 -
<PAGE>
with a copy to:
Whitman Breed Abbott & Morgan LLP
200 Park Avenue
New York, New York 10166
Attention: Richard Crystal, Esq.
Any party may alter the address to which communications or copies are
to be sent by giving notice of such change of address in conformity with the
provisions of this paragraph for the giving of notice. Notices given hereunder
shall be deemed received upon actual receipt thereof or, in the case of notice
by mail, upon two days from the date notice is first deposited in the mail in
the manner provided above
(a) Binding Nature of Agreement. This Agreement shall be binding
upon and inure to the benefit of (i) the REIT and its successors and assigns and
(ii) each Holder and its heirs, successors and assigns.
(b) Transfer or Assignment of Registration Rights. Subject to
Section 10 hereof, the rights with respect to any Registrable Shares to cause
the REIT to register such securities granted to a Holder by the REIT under this
Agreement may be transferred or assigned by a Holder, in whole or in part, to a
transferee or assignee of any Registrable Shares (or any OP Units which are
convertible, exercisable or redeemable, directly or indirectly, for Registrable
Shares); provided that, in such case, the REIT shall be given written notice
stating the name and address of said transferee or assignee and identifying the
securities with respect to which such registration rights are being transferred
or assigned and the REIT shall have received the written agreement of such
transferee or assignee to be bound by the terms of this Agreement.
(c) Execution in Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually taken together, shall
bear the signatures of all of the parties reflected hereon as the signatories.
(d) Provisions Separable. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
(e) Entire Agreement. This Agreement contains the entire
understanding among the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied, oral or written,
except as herein contained. This Agreement may not be modified or amended other
than by an agreement in writing.
(f) Paragraph Headings. The paragraph headings in this Agreement
are for convenience only; they form no part of this Agreement and shall not
affect its interpretation.
[SIGNATURE PAGE FOLLOWS]
780228.7
- 7 -
<PAGE>
IN WITNESS WHEREOF, the parties executed and delivered this Agreement
on the date first above written.
ACADIA REALTY TRUST
By: /s/ Kenneth F. Bernstein
___________________________________________
Name: Kenneth F. Bernstein
Title: President
ACADIA REALTY LIMITED
PARTNERSHIP
By: Acadia Realty Trust, its General Partner
By: /s/ Kenneth F. Bernstein
_______________________________________
Name: Kenneth F. Bernstein
Title: President
PACESETTER PARTNERS:
/s/ Ralph Worthington IV
_______________________________________________
/s/ Robert Holmes
_______________________________________________
AMCAP, INCORPORATED
By:____________________________________________
Name:
Title:
LENNOX SECURITIES
By:____________________________________________
Name:
Title:
BERLIND GROUP, INC.
By:___________________________________________
Name:
Title:
780228.7
- 8 -
<PAGE>
909738.9
50
