Exhibit
4.2


 


REGISTRATION RIGHTS AGREEMENT


 


THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”)
is made and entered into as of [             
], 2010 by and between Eola Property Trust, a Maryland real estate
investment trust (the “Company”), and the holders listed on Schedule I hereto (each an “Initial Holder” and,
collectively, the “Initial Holders”).


 


WHEREAS, the Company and Eola Property Trust, L.P.,
a Delaware limited partnership (the “Operating Partnership”), of which
the Company is the sole general partner, are engaging in various related
transactions pursuant to which, among other things, the Company will effect an
initial public offering of its common shares, par value $0.01 per share (the “Common
Shares”), and contribute the proceeds therefrom for a like number of units
of partnership interest (“OP Units”) in the Operating Partnership (such
transactions, the “IPO Transactions”);


 


WHEREAS, in connection with the IPO Transactions,
the Company and the Operating Partnership have concurrently engaged in certain
formation transactions pursuant to which, among other things, the Initial
Holders have received, in exchange for their (or certain related parties’)
respective interests in the properties or entities participating in the
formation transactions or in exchange for services rendered, OP Units (the “Private
Placement Units”) and/or Common Shares (the “Private Placement Shares”),
in each case as set forth on Schedule I hereto; and


 


WHEREAS, the Company has agreed to grant to the
Initial Holders (and their permitted assignees and transferees) the
registration rights described in this Agreement (the “Registration Rights”).


 


NOW, THEREFORE, the parties hereto, in
consideration of the foregoing, the mutual covenants and agreements hereinafter
set forth, and other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, hereby agree as follows:


 


SECTION
1.                            REGISTRATION RIGHTS


 


1.1                                 Issuer
Registration Statement.


 


Subject to Section 1.3 hereof, the
Company shall cause to be filed, during the period beginning fifteen (15) days
prior to the date the Holders (as defined below) are first permitted to redeem
their Private Placement Units pursuant to the Amended and Restated Agreement of
Limited Partnership of the Operating Partnership, dated as of [                     ],
2010, as amended (the “Operating Partnership Agreement”), and ending
fifteen (15) days thereafter, with the Securities and Exchange Commission (the “Commission”)
a registration statement and related prospectus (the “Issuer Registration
Statement”) that complies as to form in all material respects with
applicable Commission rules providing for the registration of the Registrable
Securities (as defined below) that may be issued to such Holders upon
redemption of Private Placement Units held by such Holders (the “Redemption
Shares”).  The Company agrees
(subject to Section 1.3 hereof) to use commercially reasonable efforts
to cause the Issuer Registration Statement to be declared effective by the
Commission as soon as practicable.


 

















 


Subject to Section 1.3 hereof, the
Company agrees to use commercially reasonable efforts to keep any Issuer
Registration Statement continuously effective (including the preparation and
filing of any amendments and supplements necessary for that purpose) until the
date on which no such Holder owns any Private Placement Units.  In the event that the Registrable Securities
are issued to any Holder by the Company pursuant to an Issuer Registration
Statement, the Company shall be deemed to have satisfied all of its
registration obligations under this Agreement in respect of such Registrable
Securities.


 


As used in this Agreement, (i) “Registration
Statement” and “Prospectus” refer to an Issuer Registration
Statement and related prospectus (including any preliminary prospectus) and a
Demand Registration Statement (as defined in Section 1.2) and related
prospectus (including any preliminary prospectus), whichever is utilized by the
Company to satisfy a Holder’s Registration Rights under this Agreement, including,
in each case, any documents incorporated therein by reference, (ii) “Registrable
Securities” refer to the Common Shares issued to a Holder with respect to
the Private Placement Units, the Private Placement Shares and any Common Shares
issued to a Holder with respect to the Redemption Shares or the Private
Placement Shares by way of share dividend or stock split or in connection with
a combination of shares, recapitalization, merger, consolidation or other
reorganization or otherwise and any Common Shares or voting common shares
issuable upon conversion, exercise or exchange thereof, and (iii) “Holder”
refers to (a) any Initial Holder who is the record or beneficial owner of any
Registrable Security or (b) any assignee or transferee of such Initial Holder
(including assignments or transfers of Registrable Securities to such assignees
or transferees as a result of the foreclosure on any loans secured by such
Registrable Securities) (x) to the extent permitted under the Operating
Partnership Agreement or the Articles of Amendment and Restatement of
Declaration of Trust of the Company, dated as of [              ], 2010, as amended (the “Charter”),
as applicable, and (y) provided such assignee or transferee agrees in writing
to be bound by the all the provisions hereof. Notwithstanding the foregoing
definition of “Holder” or anything else to the contrary in this Agreement, in
the case of the Initial Holders designated on Schedule I hereto as the “DLF
Initial Holders”, the only assignees or transferees of such DLF Initial Holders
that are permitted to constitute “Holders” for purposes of this Agreement shall
be the following existing members of the DLF Initial Holders:  KC Beteiligungs GmbH; KC Verwaltungs GmbH;
and DLF-Immobilienportfolio-KC Beteiligungs GmbH & Co KG (each such
existing member of the DLF Initial Holders that becomes a Holder hereunder
pursuant to the preceding sentence, together with the DLF Initial Holders, the “DLF
Holders”).


 


1.2                                 Demand
Registration Rights.


 


(a)                                  Subject
to Sections 1.2(d) and 1.3 hereof, at any time after the date
that is 365  days after the closing date of
the Company’s initial public offering (the “IPO Closing Date”) (or, in
the case of a Large Holder (as defined below), at any time after the date that
is 180  days after the IPO Closing Date), each
Holder may deliver to the Company a written notice (a “Demand Registration
Notice”) informing the Company of such Holder’s desire to have some or all
of its Registrable Securities registered for resale and specifying the number of
Registrable Securities to be registered by the Company (a “Demand
Registration”).  Upon receipt of a
Demand Registration Notice from a Holder requesting registration of the lesser
of (i) one million (1,000,000)  Registrable
Securities or (ii) all of such Holder’s Registrable Securities, if the


 


2

















 


Company has not already caused such Registrable
Securities to be included as part of an existing shelf registration statement
and related prospectus that the Company then has on file with, and which has
been declared effective by, the Commission and which remains in effect and not
subject to any stop order, injunction or other order or requirement of the
Commission (in which event the Company shall be deemed to have satisfied its
registration obligation under this Section 1.2 with respect to such
Registrable Securities), then the Company shall cause to be filed with the
Commission as soon as reasonably practicable after receiving the Demand
Registration Notice, but in no event more than sixty (60) days following
receipt of such notice, a new registration statement and related prospectus
(any such registration statement used to satisfy the Company’s obligations
under this Section 1.2, the “Demand Registration Statement”) that
complies as to form in all material respects with applicable Commission rules
providing for the sale by such Holder or group of Holders of such Registrable
Securities.  The Company agrees (subject
to Section 1.3 hereof) to use commercially reasonable efforts to cause
the Demand Registration Statement to be declared effective by the Commission as
soon as practicable.


 


As used in this Agreement, “Large Holder”
refers to any Holder who is the record or beneficial owner of at least two
million (2,000,000) Registrable Securities; it being understood that, in the
case of the DLF Holders, any one or more of the DLF Holders who are
collectively the record or beneficial owner of at least two million (2,000,000)
Registrable Securities shall be deemed to collectively constitute a “Large
Holder” for purposes of Section 1.2 if such DLF Holders otherwise collectively
request registration of at least one million (1,000,000)  Registrable
Securities pursuant to Section 1.2(a).


 


Subject to Section 1.3 hereof, the Company
agrees to use commercially reasonable efforts to keep any Demand Registration
Statement continuously effective (including the preparation and filing of any
amendments and supplements necessary for that purpose) until the earlier of (i)
the date that is two (2) years after the date of effectiveness of such Demand
Registration Statement, (ii) the date on which all of the Registrable
Securities covered by such Demand Registration Statement are eligible for sale
without registration pursuant to Rule 144 (or any successor provision) under
the Securities Act of 1933, as amended (the “Securities Act”), without
volume limitations or other restrictions on transfer thereunder, or (iii) the
date on which the Holder or Holders consummate the sale of all of the Registrable
Securities registered under such Demand Registration Statement.  Notwithstanding the foregoing, the Company
may at any time (including, without limitation, prior to or after receiving a
Demand Registration Notice from a Holder), in its sole discretion, include all
additional Registrable Securities then outstanding or any portion thereof in
any registration statement, including by virtue of adding such Registrable
Securities as additional securities to an Issuer Registration Statement, a
Demand Registration Statement or an existing shelf registration statement
pursuant to Rule 462(b) under the Securities Act (in which event the Company
shall be deemed to have satisfied its registration obligation under this Section
1.2(a) with respect to the Registrable Securities so included, so long as
such registration statement remains effective and not the subject of any stop
order, injunction or other order of the Commission).


 


(b)                                 Notice
to Holders.  Upon receipt of a valid Demand Registration
Notice from a Large Holder during the period commencing on the date that is 180
days after the IPO Closing Date and ending on the date that is 365 days after
the IPO Closing Date, the Company


 


3

















 


shall give written notice of the proposed filing of
the Demand Registration Statement to all other Large Holders as soon as
practicable, and each Large Holder who wishes to participate in such Demand
Registration Statement shall notify the Company in writing within five
(5) Business Days after the receipt by the Large Holder of the notice from
the Company, and shall specify in such notice the number of Registrable
Securities to be included in the Demand Registration Statement.  Upon receipt of a valid Demand Registration
Notice at any time after the date that is 365 days after the IPO Closing Date,
the Company shall give written notice of the proposed filing of the Demand
Registration Statement to all other Holders as soon as practicable, and each
Holder who wishes to participate in such Demand Registration Statement shall
notify the Company in writing within five (5) Business Days after the
receipt by the Holder of the notice from the Company, and shall specify in such
notice the number of Registrable Securities to be included in the Demand
Registration Statement.


 


(c)                                  Offers
and Sales.  All offers and sales of Registrable
Securities covered by a Demand Registration Statement by the Holder thereof
shall be completed within the period during which such Demand Registration
Statement remains effective and not the subject of any stop order, injunction
or other order of the Commission.  Upon
notice that such Demand Registration Statement is no longer effective, no
Holder will offer or sell the Registrable Securities covered by such Demand
Registration Statement.  If directed in
writing by the Company, each Holder will return all undistributed copies of the
related Prospectus in such Holder’s possession upon the expiration of such
period.


 


(d)                                 Limitations
on Demand Registration Rights.  The Holders, collectively and as a group,
shall be entitled to an unlimited number of exercises of the Registration
Rights under Section 1.2(a); provided, however, that the
Holders, collectively and as a group, shall not be permitted to exercise such
Registration Rights more than once in any consecutive six month period and the
Company shall not be obligated to effect any Demand Registration Statement
within six months after the effective date of a previous Demand Registration
Statement.  Notwithstanding the foregoing,
if a Registration Statement has not been declared effective by the Commission
within 120 days after the original filing date or is suspended for more
than 90 days at any one time, the Holders shall be deemed not to have
exercised their Registration Rights under Section 1.2(a).  Each Holder’s Registration Rights granted
pursuant to this Section 1.2 shall expire upon the date on which all of
such Holder’s Registrable Securities are eligible for sale without registration
pursuant to Rule 144 (or any successor provision) under the Securities Act
without volume limitations or other restrictions on transfer thereunder.  The Registration Rights granted pursuant to
this Section 1.2 may not be exercised in connection with any
underwritten public offering by the Company or by any Holder without the prior
written consent of the Company.


 


(e)                                  Black-Out
Period. 
Each Holder hereby agrees that it shall not, to the extent requested by
the Company or an underwriter of securities of the Company, directly or
indirectly sell, offer to sell (including without limitation any short sale),
grant any option or otherwise transfer or dispose of any Registrable Securities
(other than to donees or affiliates of such Holder who agree to be similarly
bound) within seven (7) days prior to and for up to ninety (90) days, in the
event of any subsequent offering, following the effective date of a
registration statement of the Company filed under the Securities Act or the
date of an underwriting


 


4

















 


agreement with respect to an underwritten public
offering of the Company’s securities (the “Black-Out Period”); provided,
however, that:


 


(i)                                     with
respect to the Black-Out Period, such agreement shall not be applicable to the
Registrable Securities to be sold on such Holder’s behalf to the public in an
underwritten offering pursuant to such registration statement;


 


(ii)                                  all
executive officers and trustees of the Company then holding Common Shares shall
enter into similar agreements;


 


(iii)                               the
Company shall use commercially reasonable efforts to obtain similar agreements
from each 10% or greater shareholder of the Company; and


(iv)                              such
Holder shall be allowed any concession or proportionate release allowed to any
officer, trustee or other 10% or greater shareholder of the Company that
entered into similar agreements.


 


In order to enforce the foregoing covenant,
the Company shall have the right to place restrictive legends on the
certificates representing the Registrable Securities subject to this Section
1.2(e) and to impose stop transfer instructions with respect to the
Registrable Securities and such other Common Shares of any Holder (and the
Common Shares or securities of every other person subject to the foregoing
restriction) until the end of such period.


 


1.3                                 Suspension
of Offering.


 


(a)                                  Notwithstanding
Sections 1.1 or 1.2 hereof, the Company shall be entitled to
postpone the filing of a Registration Statement, and from time to time to
require Holders not to sell under a Registration Statement or to suspend the
effectiveness thereof, if (i) the Company is actively pursuing an
underwritten primary offering of equity securities, or (ii) the
negotiation or consummation of a transaction by the Company or its subsidiaries
is pending or an event has occurred, which negotiation, consummation or event
would require additional disclosure by the Company in the Registration
Statement of material information which the Company has a bona fide business
purpose for keeping confidential and the non-disclosure of which in the
Registration Statement would be expected, in the Company’s reasonable
determination, to cause the Registration Statement to fail to comply with
applicable disclosure requirements (each such circumstance a “Suspension
Event”); provided, however, that the Company may not delay,
suspend or withdraw such Registration Statement for more than
ninety (90) days at any one time, or more than twice in any twelve
(12) month period.  Upon receipt of any
written notice from the Company of the happening of any Suspension Event during
the period the Registration Statement is effective or if as a result of a
Suspension Event the Registration Statement or related Prospectus contains any
untrue statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made (in the case of the Prospectus)
not misleading, each Holder agrees that (x) it will immediately
discontinue offers and sales of the Registrable Securities under such
Registration Statement until the Holder receives copies of a supplemental or
amended Prospectus (which the Company agrees to promptly prepare) that corrects
the misstatement(s) or omission(s) referred to above and receives notice that
any post-effective


 


5

















 


amendment has become effective or unless otherwise
notified by the Company that it may resume such offers and sales, and
(y) it will maintain the confidentiality of any information included in
the written notice delivered by the Company unless otherwise required by law or
subpoena.  If so directed by the Company,
each Holder will deliver to the Company all copies of the Prospectus covering
the Registrable Securities current at the time of receipt of such notice, other
than permanent file copies then in the possession of such Holder’s counsel.


 


(b)                                 If
all reports required to be filed by the Company pursuant to the Exchange Act
have not been filed by the required date taking into account any permissible
extension, upon written notice thereof by the Company to the Holders, the
rights of the Holders to offer, sell or distribute any Registrable Securities
pursuant to any Registration Statement or to require the Company take action
with respect to the registration or sale of any Registrable Securities pursuant
to any Registration Statement shall be suspended until the date on which the
Company has filed such reports, and the Company shall notify the Holders in
writing as promptly as practicable when such suspension is no longer required.


 


1.4                                 Qualification. The Company shall
file such documents as necessary to register or qualify the Registrable
Securities to be covered by a Registration Statement by the time such
Registration Statement is declared effective by the Commission under all
applicable state securities or “blue sky” laws of such jurisdictions as any
Holder may reasonably request in writing, and shall use commercially reasonable
efforts to keep each such registration or qualification effective during the
period such Registration Statement is required to be kept effective pursuant to
this Agreement or during the period offers or sales are being made by the
Holders, whichever is shorter, and to do any and all other similar acts and
things which may be reasonably necessary or advisable to enable the Holders to
consummate the disposition of such Registrable Securities in each such
jurisdiction; provided, however, that the Company
shall not be required to (i) qualify generally to do business in any
jurisdiction or to register as a broker or dealer in such jurisdiction where it
would not otherwise be required to qualify but for this Agreement, (ii) take
any action that would cause it to become subject to any taxation in any jurisdiction
where it would not otherwise be subject to such taxation or (iii) take any
action that would subject it to the general service of process in any
jurisdiction where it is not then so subject.


 


1.5                                 Obligations of the Company.
When the Company is required to effect the registration of Registrable
Securities under the Securities Act pursuant to Sections 1.1 or 1.2
of this Agreement, subject to Section 1.3 hereof, the Company shall:


 


(a)                                  prepare
and file with the Commission such amendments and supplements as to the
Registration Statement and the Prospectus used in connection therewith as may
be necessary (i) to keep such Registration Statement effective and (ii) to
comply with the provisions of the Securities Act with respect to the
disposition of the Registrable Securities covered by such Registration
Statement, in each case for such time as is contemplated in Sections 1.1
and 1.2;


 


(b)                                 furnish,
without charge, to the Holders such number of copies of the Registration
Statement, each amendment and supplement thereto (in each case including all
exhibits), and the Prospectus included in such Registration Statement
(including each


 


6

















 


preliminary Prospectus) in conformity with the
requirements of the Securities Act as the Holders may reasonably request in
order to facilitate the public sale or other disposition of the Registrable
Securities owned by the Holders;


 


(c)                                  notify
the Holders: (i) when the Registration Statement, any pre-effective amendment,
the Prospectus or any prospectus supplement related thereto or post-effective
amendment to the Registration Statement has been filed, and, with respect to
the Registration Statement or any post-effective amendment, when the same has
become effective, (ii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the initiation or
threat of any proceedings for that purpose, and (iii) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of any Registrable Securities for sale under the securities or “blue sky” laws
of any jurisdiction or the initiation of any proceeding for such purpose;


 


(d)                                 promptly
use commercially reasonable efforts to prevent the issuance of any order suspending
the effectiveness of a Registration Statement, and, if any such order
suspending the effectiveness of a Registration Statement is issued, shall
promptly use commercially reasonable efforts to obtain the withdrawal of such
order at the earliest possible moment;


 


(e)                                  following
receipt of a Demand Registration Notice and thereafter until the sooner of
completion, abandonment or termination of the offering or sale contemplated
thereby and the expiration of the period during which the Company is required
to maintain the effectiveness of the related Registration Statement, promptly
notify the Holders: (i) of the existence of any fact of which the Company is
aware or the happening of any event which has resulted in (A) the Registration
Statement, as then in effect, containing an untrue statement of a material fact
or omitting to state a material fact required to be stated therein or necessary
to make any statements therein not misleading or (B) the Prospectus included in
such Registration Statement containing an untrue statement of a material fact
or omitting to state a material fact required to be stated therein or necessary
to make any statements therein, in the light of the circumstances under which
they were made, not misleading, and (ii) of the Company’s reasonable
determination that a post-effective amendment to the Registration Statement
would be appropriate or that there exist circumstances not yet disclosed to the
public which make further sales under such Registration Statement inadvisable
pending such disclosure and post-effective amendment; and, if the notification
relates to any event described in either of the clauses (i) or (ii) of this Section
1.5(e), subject to Section 1.3 above, at the request of the Holders,
the Company shall prepare and, to the extent the exemption from the prospectus
delivery requirements in Rule 172 under the Securities Act is not available,
furnish to the Holders a reasonable number of copies of a supplement or
post-effective amendment to such Registration Statement or related Prospectus
or file any other required document so that (1) such Registration Statement
shall not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading and (2) as thereafter delivered to the purchasers
of the Registrable Securities being sold thereunder, such Prospectus shall not
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;


 


7

















 


(f)                                    use
commercially reasonable efforts to cause all such Registrable Securities to be
listed on the national securities exchange on which the Common Shares are then
listed, if the listing of Registrable Securities is then permitted under the
rules of such national securities exchange; and


 


(g)                                 if
requested by any Holder participating in the offering of Registrable
Securities, incorporate in a prospectus supplement or post-effective amendment
such information concerning the Holder or the intended method of distribution
as the Holder reasonably requests to be included therein and is reasonably
necessary to permit the sale of the Registrable Securities pursuant to the
Registration Statement, including, without limitation, information with respect
to the number of Registrable Securities being sold, the purchase price being
paid therefor and any other material terms of the offering of the Registrable
Securities to be sold in such offering; provided, however, that
the Company shall not be obligated to include in any such prospectus supplement
or post-effective amendment any requested information that is not required by
the rules of the Commission and is unreasonable in scope compared with the
Company’s most recent prospectus or prospectus supplement used in connection
with a primary or secondary offering of equity securities by the Company.


 


1.6                                 Obligations of the Holder.  In
connection with any Registration Statement utilized by the Company to satisfy
the Registration Rights pursuant to this Section 1, each Holder agrees
to cooperate with the Company in connection with the preparation of the Registration
Statement, and each Holder agrees that it will (i) respond within ten (10)
Business Days to any written request by the Company to provide or verify
information regarding the Holder or the Holder’s Registrable Securities
(including the proposed manner of sale) that may be required to be included in
such Registration Statement and related Prospectus pursuant to the rules and
regulations of the Commission, and (ii) provide in a timely manner information
regarding the proposed distribution by the Holder of the Registrable Securities
and such other information as may be requested by the Company from time to time
in connection with the preparation of and for inclusion in the Registration
Statement and related Prospectus.  As
used in this Agreement, a “Business Day” is any Monday, Tuesday,
Wednesday, Thursday or Friday other than a day on which banks and other
financial institutions are authorized or required to be closed for business in
the State of New York.


 


SECTION 2. INDEMNIFICATION; CONTRIBUTION


 


2.1                                 Indemnification by the Company.  The Company agrees to indemnify
and hold harmless each Holder and each person, if any, who controls any Holder
within the meaning of Section 15 of the Securities Act or Section 20
of the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
and any of their partners, members, officers, directors, employees or
representatives, as follows:


 


(i)                                     against
any and all loss, liability, claim, damage, judgment and expense whatsoever, as
incurred, arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto) pursuant to which the Registrable Securities were registered
under


 


8














 


the
Securities Act, including all documents incorporated therein by reference, or
the omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading or
arising out of or based upon any untrue statement or alleged untrue statement
of a material fact contained in any Prospectus (or any amendment or supplement
thereto), including all documents incorporated therein by reference, or the
omission or alleged omission therefrom 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;


 


(ii)                                  against
any and all loss, liability, claim, damage, judgment and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any
litigation, or investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, if
such settlement is effected with the written consent of the Company; and


 


(iii)                               against
any and all expense whatsoever, as incurred (including reasonable fees and
disbursements of counsel), reasonably incurred in investigating, preparing or
defending against any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, in each case whether or
not a party, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under subparagraph (i) or (ii) above;


 


provided, however,
that the indemnity provided pursuant to this Section 2.1 does not
apply to any Holder with respect to any loss, liability, claim, damage,
judgment or expense to the extent arising out of (A) any untrue statement
or omission or alleged untrue statement or omission made in reliance upon and
in conformity with written information furnished to the Company by such Holder
expressly for use in the Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement thereto), or (B) any Holder’s
failure to deliver an amended or supplemental Prospectus furnished to such
Holder by the Company, if such loss, liability, claim, damage, judgment or
expense would not have arisen had such delivery occurred.


 


2.2                                 Indemnification by Holder. Each Holder (and each permitted assignee of
such Holder, on a several basis) severally and not jointly agrees to indemnify
and hold harmless the Company, and each of its trustees and officers (including
each trustee and officer of the Company who signed a Registration Statement),
and each person, if any, who controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, as follows:


 


(i)                                     against
any and all loss, liability, claim, damage, judgment and expense whatsoever, as
incurred, arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto) pursuant to which the Registrable Securities of such Holder
were registered under the Securities Act, including all documents incorporated
therein by reference, or the omission or alleged omission therefrom of a
material fact required to be 


 


9

















 


stated
therein or necessary to make the statements therein not misleading or arising
out of or based upon any untrue statement or alleged untrue statement of a
material fact contained in any Prospectus (or any amendment or supplement
thereto), including all documents incorporated therein by reference, or the
omission or alleged omission therefrom 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;


 


(ii)                                  against
any and all loss, liability, claim, damage, judgment and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any
litigation, or investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, if
such settlement is effected with the written consent of such Holder; and


 


(iii)                               against
any and all expense whatsoever, as incurred (including reasonable fees and
disbursements of counsel), reasonably incurred in investigating, preparing or
defending against any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, in each case whether or
not a party, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under subparagraph (i) or (ii) above;


 


provided, however,
that the indemnity provided pursuant to this Section 2.2 shall only
apply with respect to any loss, liability, claim, damage, judgment or expense
to the extent arising out of (A) any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Company by such Holder expressly for
use in the Registration Statement (or any amendment thereto) or the Prospectus
(or any amendment or supplement thereto) or (B) any Holder’s failure to
deliver an amended or supplemental Prospectus furnished to the Holder by the
Company, if such loss, liability, claim, damage or expense would not have
arisen had such delivery occurred. 
Notwithstanding the provisions of this Section 2.2, a Holder
and any permitted assignee shall not be required to indemnify the Company, its
officers, trustees or control persons with respect to any amount in excess of
the amount of the total proceeds to such Holder or such permitted assignee, as
the case may be, from sales of the Registrable Securities of such Holder under
the Registration Statement that is the subject of the indemnification claim.


 


2.3                                 Conduct of Indemnification Proceedings.  An
indemnified party hereunder shall give reasonably prompt notice to the
indemnifying party of any action or proceeding commenced against it in respect
of which indemnity may be sought hereunder, but failure to so notify the
indemnifying party (i) shall not relieve it from any liability which it
may have under the indemnity agreement provided in Sections 2.1 or 2.2
above, unless and only to the extent it did not otherwise learn of such action
and the lack of notice by the indemnified party results in the forfeiture by
the indemnifying party of substantial rights and defenses, and (ii) shall
not, in any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided under Sections
2.1 or 2.2 above.  If the
indemnifying party so elects within a reasonable time after receipt of such
notice, the indemnifying party may 


 


10

















 


assume the defense of such action or proceeding at
such indemnifying party’s own expense with counsel chosen by the indemnifying
party and approved by the indemnified party, which approval shall not be
unreasonably withheld; provided, however, that the indemnifying
party will not settle, compromise or consent to the entry of any judgment with
respect to any such action or proceeding without the written consent of the
indemnified party unless such settlement, compromise or consent secures the
unconditional release of the indemnified party; and provided  further,
that, if the indemnified party reasonably determines that a conflict of
interest exists where it is advisable for the indemnified party to be
represented by separate counsel or that, upon advice of counsel, there may be
legal defenses available to it which are different from or in addition to those
available to the indemnifying party, then the indemnifying party shall not be
entitled to assume such defense and the indemnified party shall be entitled to
separate counsel at the indemnifying party’s expense. If the indemnifying party
is not entitled to assume the defense of such action or proceeding as a result
of the second proviso to the preceding sentence, the indemnifying party’s
counsel shall be entitled to conduct the indemnifying party’s defense and
counsel for the indemnified party shall be entitled to conduct the defense of
the indemnified party, it being understood that both such counsel will
cooperate with each other to conduct the defense of such action or proceeding
as efficiently as possible. If the indemnifying party is not so entitled to
assume the defense of such action or does not assume such defense, after having
received the notice referred to in the first sentence of this paragraph, the
indemnifying party will pay the reasonable fees and expenses of counsel for the
indemnified party. In such event, however, the indemnifying party will not be
liable for any settlement effected without the written consent of the
indemnifying party. If an indemnifying party is entitled to assume, and
assumes, the defense of such action or proceeding in accordance with this
paragraph, the indemnifying party shall not be liable for any fees and expenses
of counsel for the indemnified party incurred thereafter in connection with such
action or proceeding.


 


2.4                                 Contribution.


 


(a)                                  In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in Sections
2.1 and 2.2 above is for any reason held to be unenforceable by the
indemnified party although applicable in accordance with its terms, the Company
and the relevant Holder shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by such indemnity
agreement incurred by the Company and the Holder, in such proportion as is
appropriate to reflect the relative fault of the Company on the one hand and
the Holder on the other hand, in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities, or expenses.  The relative fault of the indemnifying party
and indemnified party shall be determined by reference to, among other things,
whether the action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact,
has been made by, or relates to information supplied by, the indemnifying party
or the indemnified party, and the parties’ relative intent, knowledge, access
to information and opportunity to correct or prevent such action.


 


(b)                                 The parties hereto agree that it would not be just or equitable if
contribution pursuant to this Section 2.4 were determined by
pro rata allocation or by any other method of allocation which does not
take account of the equitable considerations referred to in 


 


11

















 


the
immediately preceding paragraph. Notwithstanding the provisions of this Section 2.4,
a Holder shall not be required to contribute any amount in excess of the amount
of the total proceeds to such Holder from sales of the Registrable Securities
of such Holder under the Registration Statement that is the subject of the
indemnification claim.


 


(c)                                  Notwithstanding the foregoing, no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 2.4,
each person, if any, who controls a Holder within the meaning of Section 15
of the Securities Act shall have the same rights to contribution as the Holder,
and each trustee of the Company, each officer of the Company who signed a
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act shall have the same rights
to contribution as the Company.


 


SECTION 3. EXPENSES


 


The Company shall pay all expenses incident to the
performance by the Company of its registration obligations under Section 1
above, including (i) Commission, stock exchange and FINRA registration and
filing fees, (ii) all fees and expenses incurred in complying with
securities or “blue sky” laws (including reasonable fees, charges and
disbursements of counsel to any underwriter incurred in connection with “blue
sky” qualifications of the Registrable Securities as may be set forth in any
underwriting agreement), (iii) all printing, messenger and delivery
expenses, and (iv) the fees, charges and expenses of counsel to the
Company and of its independent public accountants and any other accounting
fees, charges and expenses incurred by the Company (including, without
limitation, any expenses arising from any “comfort” letters or any special
audits incident to or required by any registration or qualification).  Each Holder shall be responsible for the
payment of any brokerage and sales commissions, fees and disbursements of such
Holder’s counsel, accountants and other advisors (except as contemplated by the
preceding sentence), and any transfer taxes relating to the sale or disposition
of the Registrable Securities by such Holder pursuant to this Agreement.


 


SECTION 4. RULE 144 COMPLIANCE


 


The Company covenants that it will use its best
efforts to timely file the reports required to be filed by the Company under
the Securities Act and the Exchange Act so as to enable the Holders to sell the
Registrable Securities pursuant to Rule 144 under the Securities Act.  In connection with any sale, transfer or
other disposition by a Holder of any Registrable Securities pursuant to
Rule 144 under the Securities Act, the Company shall cooperate with the
Holder to facilitate the timely preparation and delivery of certificates
representing the Registrable Securities to be sold and not bearing any
Securities Act legend, and enable certificates for such Registrable Securities
to be for such number of shares and registered in such names as such Holder may
reasonably request at least five (5) Business Days prior to any sale of
Registrable Securities hereunder.


 


12

















 


SECTION 5. MISCELLANEOUS


 


5.1                                 Integration;
Amendment.  This Agreement constitutes the entire
agreement among the parties hereto with respect to the matters set forth herein
and supersedes and renders of no force and effect all prior oral or written
agreements, commitments and understandings among the parties with respect to
the matters set forth herein. Except as otherwise expressly provided in this
Agreement, no amendment, modification or discharge of this Agreement shall be
valid or binding unless set forth in writing and duly executed by each of the
parties hereto.


 


5.2                                 Waivers.  No waiver by a party hereto
shall be effective unless made in a written instrument duly executed by the
party against whom such waiver is sought to be enforced, and only to the extent
set forth in such instrument. Neither the waiver by any of the parties hereto
of a breach or a default under any of the provisions of this Agreement, nor the
failure of any of the parties, on one or more occasions, to enforce any of the
provisions of this Agreement or to exercise any right or privilege hereunder
shall thereafter be construed as a waiver of any subsequent breach or default
of a similar nature, or as a waiver of any such provisions, rights or privileges
hereunder.


 


5.3                                 Assignment;
Successors and Assigns.  This Agreement and the rights granted
hereunder may not be assigned by a Holder without the written consent of the
Company; provided, however, that, except to the extent otherwise
prohibited in Section 1.1, a Holder may assign its rights and obligations
hereunder, without such consent, in connection with a transfer of some or all
of such Holder’s Registrable Securities (i) to the extent permitted under
the Operating Partnership Agreement or the Charter, as applicable, and (ii) provided
such transferee agrees in writing to be bound by all of the provisions hereof
and the Holder provides written notice to the Company within ten (10) days
of the effectiveness of such assignment. 
This Agreement shall inure to the benefit of and be binding upon all of
the parties hereto and their respective heirs, executors, personal and legal
representatives, successors and permitted assigns, including, without
limitation, any successor of the Company by merger, acquisition,
reorganization, recapitalization or otherwise.


 


5.4                                   Notices.  All notices called for under this Agreement
shall be in writing and shall be deemed duly given (a) on the date of
delivery if delivered personally, (b) on the first Business Day following
the date of dispatch if delivered by a nationally recognized next-day courier
service, (c) on the fifth Business Day following the date of mailing if
delivered by registered or certified mail, return receipt requested, postage
prepaid, or (d) if sent by facsimile transmission during business hours on
a Business Day, when transmitted and receipt is confirmed, or otherwise on the
following Business Day.  All notices
hereunder shall be delivered to the parties at the addresses set forth opposite
their signatures below, or to any other address or addressee as any party
entitled to receive notice under this Agreement shall designate, from time to
time, to others in the manner provided in this Section 5.4 for the
service of notices; provided, however, that notices of a change
of address shall be effective only upon receipt thereof.


 


5.5                                 Specific
Performance.  The parties hereto acknowledge that the
obligations undertaken by them hereunder are unique and that there would be no
adequate remedy at law if 


 


13

















 


any party fails to perform any of its obligations
hereunder, and accordingly agree that each party, in addition to any other
remedy to which it may be entitled at law or in equity, shall be entitled to
(i) compel specific performance of the obligations, covenants and
agreements of any other party under this Agreement in accordance with the terms
and conditions of this Agreement and (ii) obtain preliminary injunctive
relief to secure specific performance and to prevent a breach or contemplated
breach of this Agreement in any court of the United States or any State thereof
having jurisdiction.


 


5.6                                 Governing
Law. 
This Agreement, the rights and obligations of the parties hereto, and
any claims or disputes relating thereto, shall be governed by and construed in
accordance with the laws of the State of Maryland (excluding the conflict of
law provisions thereof).


 


5.7                                 Headings.  Section and subsection
headings contained in this Agreement are inserted for convenience of reference
only, shall not be deemed to be a part of this Agreement for any purpose, and
shall not in any way define or affect the meaning, construction or scope of any
of the provisions hereof.


 


5.8                                 Pronouns.  All pronouns and any variations
thereof shall be deemed to refer to the masculine, feminine, neuter, singular
or plural, as the identity of the person or entity may require.


 


5.9                                 Execution
in Counterparts.  This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement. 
This Agreement may be executed by facsimile signatures.


 


5.10                           Severability.  If fulfillment of any provision
of this Agreement, at the time such fulfillment shall be due, shall transcend
the limit of validity prescribed by law, then the obligation to be fulfilled
shall be reduced to the limit of such validity; and if any provision of this
Agreement shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions of this Agreement shall not in
any way be affected or impaired thereby.


 


5.11                           No
Third Party Beneficiaries.  It is the explicit intention of the parties
hereto that no person or entity other than the parties hereto is or shall be
entitled to bring any action to enforce any provision of this Agreement against
any of the parties hereto, and the covenants, undertakings and agreements set
forth in this Agreement shall be solely for the benefit of, and shall be
enforceable only by, the parties hereto or their respective successors, heirs,
executors, administrators, legal representatives and permitted assigns.


 


[Signatures on following page]


 


14

















 


IN WITNESS WHEREOF, each of the undersigned has
caused this Agreement to be duly executed and delivered in its name and on its
behalf as of the date first written above.


 


	
  Address:

  	
   

  	
  THE COMPANY:

  
	
   

  	
   

  	
   

  
	
  390
  N. Orange Avenue, Suite 2400

  	
   

  	
  EOLA PROPERTY TRUST

  
	
  Orlando, Florida 32801

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  INITIAL
  HOLDERS:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  



 


15

















 


Schedule I


 


[LIST OF HOLDERS]