Exhibit 10.16.4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into as of July 28th, 2004, by and between CBL & Associates Properties, Inc., a
Delaware corporation (the "Company"), and the holders of S- SCUs (as defined
below) listed on Schedule A hereto (individually, a "Holder").
WHEREAS, in connection with the consummation of the transactions
contemplated by the Contribution Agreement, each Holder has been issued, or may
in the future be issued, Series S Special Common Units of limited partnership
interest ("S-SCUs") in CBL & Associates Limited Partnership, a Delaware limited
partnership (the "Operating Partnership");
WHEREAS, in connection therewith, the Company has agreed to grant to each
Holder the registration rights set forth below;
NOW, THEREFORE, the parties hereto, in consideration of the foregoing and
the mutual covenants and agreements hereinafter set forth, hereby agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1. The following terms and phrases shall, for purposes of this
Agreement, have the meanings set forth below:
"Blackout Termination Right" has the meaning set forth in Section 5.2(b).
"Business Day" means any day on which the New York Stock Exchange is open
for trading.
"Common Stock" means the common stock, par value $.01 per share, of the
Company.
"Common Units" means common units of the Operating Partnership issued by
the Operating Partnership in respect of or in exchange for S-SCUs.
"Company" has the meaning set forth in the Introductory Paragraph.
"Company Offering" has the meaning set forth in Section 3.1(b).
"Company Sale Period" has the meaning set forth in Section 3.1(b).
"Conversion Shares" means all or any portion of the shares of Common Stock
received by the Holders, or issuable to the Holders, upon exercise of their
rights to exchange their S-SCUs or Common Units for shares of Common Stock
pursuant to the OP Partnership Agreement.
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"Contribution Agreement" means the Contribution Agreement, dated as of May
21, 2004, among Xxxxxx Xxxxxx, Xxxx Xxxxxx Leeds, Xxxxxx Xxxxxxx, Pittsburgh
Mall Limited Partnership and Monroeville Mall Partners, L.P., on the one part,
and the Operating Partnership, on the other part, and as the same may be further
amended, supplemented or modified.
"Eligible Securities" means all or any portion of the Conversion Shares;
provided, that, as to any proposed offer or sale of Eligible Securities, such
securities shall cease to be Eligible Securities with respect to such proposed
offer or sale when (i) a registration statement with respect to the sale of such
securities shall have become effective under the Securities Act and such
securities shall have been disposed of in accordance with such registration
statement, (ii) such securities are permitted to be distributed pursuant to Rule
144(k) (or any successor provision to such Rule) under the Securities Act to be
confirmed in a written opinion of counsel to the Company addressed to the
Holders, or (iii) such securities shall have been otherwise transferred pursuant
to an applicable exemption under the Securities Act, new certificates for such
securities not bearing a legend restricting further transfer shall have been
delivered by the Company and such securities shall be freely transferable to the
public without registration under the Securities Act.
"Holder" shall have the meaning set forth in the Introductory Paragraph,
and shall include any transferee of a S-SCU or Common Unit that, in accordance
with the terms of the S-SCUs, has been admitted as a Substituted Limited Partner
of the Operating Partnership.
"Information Blackout" has the meaning set forth in Section 5.2(a).
"Information Blackout" has the meaning set forth in Section 5.2(a).
"Operating Partnership" means CBL & Associates Limited Partnership, a
Delaware limited partnership, and any successor in interest thereto.
"OP Partnership Agreement" means the Second Amended and Restated Agreement
of Limited Partnership of the Operating Partnership dated June 30, 1998, as
amended by the First Amendment dated as of January 31, 2001, the Second
Amendment dated as of February 15, 2002 and the Third Amendment dated as of the
date hereof and as the same may be further amended from time to time.
"Other Securities" has the meaning set forth in Section 4.1.
"Person" means an individual, a partnership (general or limited),
corporation, limited liability company, joint venture, business trust,
cooperative, association or other form of business organization, whether or not
regarded as a legal entity under applicable law, a trust (inter vivos or
testamentary), an estate of a deceased, insane or incompetent person, a
quasi-governmental entity, a government or any agency, authority, political
subdivision or other instrumentality thereof, or any other entity.
"Registration Expenses" means all expenses incident to the Company's
performance of or compliance with the registration requirements set forth
herein: (i) the fees, disbursements and expenses of the Company's counsel(s),
accountants and experts in connection with the registration of Eligible
Securities under the Securities Act and (ii) all expenses in connection with the
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preparation and filing of the registration statement, any required preliminary
prospectus or final prospectus, any other offering document and amendments and
supplements thereto; provided, however, that Registration Expenses with respect
to any registration pursuant hereto shall not include (i) transfer taxes
applicable to Eligible Securities, (ii) any underwriting discounts and selling
commissions attributable to Eligible Securities and (iii) fees and expenses, if
any, of any counsel retained by any Holder.
"Sales Blackout Period" has the meaning set forth in Section 5.2(a).
"S-SCUs" has the meaning set forth in the Recitals.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC thereunder, all as the same shall be in effect
at the relevant time.
"Selling Holders" means the Holder or Holders who request registration
pursuant to Section 3.1 or 4.1.
"Shelf Registration Statement" has the meaning set forth in Section 3.1.
"Suspension Event" has the meaning set forth in Section 3.1(c).
ARTICLE II
[This provision has been intentionally omitted]
ARTICLE III
DEMAND REGISTRATION RIGHTS
Section 3.1. Notice and Registration. Upon written notice from a Holder or
Holders owning Eligible Securities requesting that the Company effect the
registration under the Securities Act of all or part of the Eligible Securities
held by such Holders, which notice shall specify the intended method or methods
of disposition of such Eligible Securities, the Company will use all
commercially reasonable efforts to effect (at the earliest possible date) the
registration under the Securities Act of such Eligible Securities for
disposition in accordance with the intended method or methods of disposition
stated in such request (which request may be satisfied by means of a shelf
registration statement pursuant to Rule 415 under the Securities Act (a "Shelf
Registration Statement") if the Company is then eligible to register the
Eligible Securities on Form S-3 under the Securities Act or any successor form;
and the Company agrees that it will use such a Shelf Registration Statement if
the Company is then eligible to do so and the Shelf Registration Statement is
requested by the Holder in its written notice requesting registration), provided
that:
(a) if the Company shall have previously effected a registration with
respect to a Holder's Eligible Securities pursuant to Article 4
hereof, the Company shall not be required to effect a
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registration for a Holder's Eligible Securities pursuant to this
Article 3 until a period of twelve (12) months shall have elapsed
from the effective date of the most recent such previous
registration;
(b) if, upon receipt of a registration request pursuant to this
Article 3, the Company is advised in writing (with a copy to the
Selling Holders) by a nationally recognized independent
investment banking firm selected by the Company to act as lead
underwriter in connection with a public offering of securities by
the Company that, in such firm's opinion, a registration at the
time and on the terms requested would materially adversely affect
such public offering of securities by the Company (other than an
offering in connection with employee benefit and similar plans)
(a "Company Offering") that had been contemplated by the Company
prior to the notice by the Holders who initially requested
registration, the Company shall not be required to effect a
registration pursuant to this Article 3 until the earliest of (i)
sixty (60) days after the completion of such Company Offering,
(ii) promptly after abandonment of such Company Offering or (iii)
three (3) months after the date of written notice from the
Holders who initially requested registration (such period a
"Company Sale Period"); provided, however, that the Company may
not exercise its rights to delay any registration under this
Section 3.1(b) more than once in any twelve (12) month period;
(c) if, while a registration request is pending pursuant to this
Article 3, the Company determines in the good faith judgment of
the Board of Directors of the Company, with the advice of
counsel, that the filing of a registration statement or the
declaration of effectiveness would require the disclosure of
non-public material information the disclosure of which would
have a material adverse effect on the Company or would otherwise
adversely affect a material financing, acquisition, disposition,
merger or other comparable transaction involving the Company
(such circumstances being hereinafter referred to as a
"Suspension Event"), the Company shall deliver a certificate to
such effect signed by its Chairman, President or any Vice
President to the Selling Holders and the Company shall not be
required to effect a registration pursuant to this Article 3
until the earlier of (i) the date upon which such material
information is disclosed to the public or ceases to be material
or (ii) sixty (60) days after the Company makes such good faith
determination; provided, however, that in no event shall
Suspension Events be permitted to take effect more than once in
any twelve (12) month period;
(d) the Company shall not be required to effect more than one
registration for Holders pursuant to this Section 3.1 in any
twelve month (12) period. No registration of Eligible Securities
under this Article 3 shall relieve the Company of its obligation
(if any) to effect registrations of Eligible Securities pursuant
to Article 4; and
(e) if the Eligible Securities of a Holder are registered for resale
pursuant to an effective Shelf Registration Statement filed by
the Company in compliance with this Agreement, then, for so long
as that Shelf Registration Statement is effective and available
for use by that Holder in compliance with applicable securities
and other laws and without the need for any further action by the
Company, and the Company is otherwise complying with any
requirements of this Agreement relating to the Shelf Registration
Statement, the Company will be deemed to have satisfied its
obligations pursuant to this Section 3 with respect to that
Holder and the Eligible Securities so registered. For the
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avoidance of doubt, at any time in its sole discretion the
Company may elect to include the Eligible Securities of any
Holder, or any portion thereof, in any Shelf Registration
Statement being filed by the Company.
Section 3.2. Limitation on Registration Rights. Each registration of
Eligible Securities requested by a Holder pursuant to Section 3.1 shall be with
respect to a minimum of the lesser of (i) 50,000 shares of Common Stock or (ii)
the sum of (x) the number of Eligible Securities held by such Selling Holder at
such time and (y) the number of Conversion Shares issuable to such Holder upon
exchange of all S-SCUs and Common Units then held by such Holder.
Section 3.3. Registration Statement by First Anniversary. Notwithstanding
anything to the contrary contained in Section 3.1 above, the Company shall use
its best efforts to cause that by the first anniversary of the closing under the
Contribution Agreement, a Shelf Registration shall have been filed and become
effective with respect to all of the Eligible Securities of the initial holders
of the S-SCUs under the Contribution Agreement.
Section 3.4. Registration Expenses. The Company shall pay the Registration
Expenses with respect to any registration of Eligible Securities pursuant to
this Article 3.
ARTICLE IV
PIGGY-BACK REGISTRATION
Section 4.1. Notice and Registration. If the Company proposes to register
any shares of Common Stock or other securities issued by it having terms
substantially similar to Eligible Securities ("Other Securities") for public
sale under the Securities Act on a form and in a manner which would permit
registration of Eligible Securities for sale to the public under the Securities
Act, it will give prompt written notice to the Holders of its intention to do
so, which notice the Holders shall keep confidential, and upon the written
request of a Holder delivered to the Company within fifteen (15) Business Days
after the giving of any such notice (which request shall specify the number of
Eligible Securities intended to be disposed of by such Holder and the intended
method of disposition thereof) the Company will use all commercially reasonable
efforts to effect, in connection with the registration of the Other Securities,
the registration under the Securities Act of all Eligible Securities which the
Company has been so requested to register by the Selling Holders, to the extent
required to permit the disposition (in accordance with the intended method or
methods thereof as aforesaid) of Eligible Securities so to be registered,
provided that:
(a) if, at any time after giving such written notice of its intention
to register any Other Securities and prior to the effective date
of the registration statement filed in connection with such
registration, the Company shall determine for any reason not to
register the Other Securities, the Company may, at its election,
give written notice of such determination to the Holders and
thereupon the Company shall be relieved of its obligation to
register such Eligible Securities in connection with the
registration of such Other Securities (but not from its
obligation to pay the Registration Expenses to the extent
incurred in connection therewith as provided in Section 4.2),
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without prejudice, however, to the rights (if any) of the Holders
immediately to request that such registration be effected as a
registration under Article 3;
(b) the Company will not be required to effect any registration
pursuant to this Article 4 if the Company shall have been advised
in writing (with a copy to the Selling Holders) by a nationally
recognized independent investment banking firm selected by the
Company to act as lead underwriter in connection with the public
offering of securities by the Company that, in such firm's
opinion, such registration at that time would materially and
adversely affect the Company's own scheduled offering, provided,
however, that if an offering of some but not all of the shares
requested to be registered by the Holders and other holders of
the Company's securities with piggyback rights would not
adversely affect the Company's offering, the offering will
include all securities offered by the Company and such number of
securities with piggyback rights as is determined by such lead
underwriter is the maximum number that can be included without
adversely affecting the Company's offering, and the aggregate
number of shares requested to be included in such offering by the
Selling Holders and each other group of securityholders with
piggyback rights shall be reduced pro rata based on the relative
number of shares being proposed for inclusion by each; if the
aggregate number of Eligible Securities to be included in such
offering is reduced in accordance with the foregoing, the total
number of shares requested to be including in such offering by
each Selling Holder shall be reduced pro rata according to the
total number of Eligible Securities requested by each Selling
Holder to be registered under the Securities Act in connection
with the registration of the Other Securities; and
(c) the Company shall not be required to effect any registration of
Eligible Securities under this Article 4 incidental to the
registration of any of its securities (i) on Form S-8 or any
successor form to such Form or in connection with any employee or
director welfare, benefit or compensation plan, (ii) on Form S-4
or any successor form to such Form or in connection with an
exchange offer, (iii) in connection with a rights offering
exclusively to existing holders of Common Stock, (iv) in
connection with an offering solely to employees of the Company or
its subsidiaries, or (v) relating to a transaction pursuant to
Rule 145 of the Securities Act.
No registration of Eligible Securities effected under this Article 4 shall
relieve the Company of its obligation (if any) to effect registrations of
Eligible Securities pursuant to Article 3.
Section 4.2. Registration Expenses. The Company (as between the Company and
the Selling Holders) shall be responsible for the payment of the Registration
Expenses in connection with any registration pursuant to this Article 4.
Section 4.3. Public Offering. In the event that any registration pursuant
to Article 4 hereof shall involve, in whole or in part, an underwritten
offering, the Company may require Eligible Securities requested to be registered
pursuant to this Article 4 to be included in such underwriting on the same terms
and conditions as shall be applicable to the Other Securities being sold through
underwriters under such registration. In such case, the holders of Eligible
Securities on whose behalf Eligible Securities are to be distributed by such
underwriters shall, as a condition to participating in such registration
pursuant to this Article 4, become joint and several parties to any such
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underwriting agreement. Such agreement shall contain such representations,
warranties and indemnifications by the Selling Holders to and for the
underwriters and such other terms and provisions as are customarily contained in
underwriting agreements with respect to secondary distributions, including,
without limitation, indemnities and contribution to the effect and to the extent
provided in Article 7. Notwithstanding the foregoing, the Company shall not be
required to register any Eligible Securities pursuant to this Article IV if the
Company has an effective Shelf Registration Statement.
ARTICLE V
REGISTRATION PROCEDURES
Section 5.1. Registration and Qualification. If and whenever the Company is
required to use all commercially reasonable efforts to effect the registration
of any Eligible Securities under the Securities Act as provided in Articles 3 or
4, the Company will as promptly as is practicable:
(a) prepare, file and use all commercially reasonable efforts to
cause to become effective a registration statement under the
Securities Act regarding the Eligible Securities to be offered;
(b) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection
therewith and take such other actions as may be necessary to keep
such registration statement effective and to comply with the
provisions of the Securities Act with respect to the disposition
of all Eligible Securities until the earlier of (A) such time as
all of such Eligible Securities have been disposed of in
accordance with the intended methods of disposition by the
Selling Holders set forth in such registration statement or
(B)(i) the expiration of twelve months after such Registration
Statement becomes effective or (ii), with respect to a Shelf
Registration Statement, such longer time as all of such Eligible
Securities have been disposed of in accordance with the intended
methods of disposition by the Selling Holders set forth in such
registration statement; provided, that, such longer period will
only be available (A) to the extent that Rule 415, or any
successor rule under the Securities Act, permits an offering on a
continuous or delayed basis and (B) if applicable rules under the
Securities Act governing the obligation to file a post-effective
amendment permit, in lieu of filing a post-effective amendment
which (y) includes any prospectus required by Section 10(a) of
the Securities Act or (z) reflects facts or events representing a
material or fundamental change in the information set forth in
the registration statement, the incorporation by reference of
information required to be included in (y) and (z) above to be
contained in periodic reports filed pursuant to Section 12 or
15(d) of the Securities Exchange Act of 1934, as amended, in the
registration statement;
(c) furnish to the Selling Holders such number of conformed copies of
such registration statement and of each such amendment and
supplement thereto (in each case including all exhibits), such
number of copies of the prospectus included in such registration
statement (including each preliminary prospectus and any
supplemental prospectus), in conformity with the requirements of
the Securities Act, such documents incorporated by reference in
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such registration statement or prospectus, and such other
documents as the Selling Holders may reasonably request;
(d) use its commercially reasonable efforts to register or qualify
all Eligible Securities covered by such registration statement
under such other securities or blue sky laws of such
jurisdictions as the Selling Holders or any underwriter of such
Eligible Securities shall reasonably request, and do any and all
other acts and things which may be reasonably requested by the
Selling Holders to consummate the disposition in such
jurisdictions of the Eligible Securities covered by such
registration statement, except the Company shall not for any such
purpose be required to qualify generally to do business as a
foreign corporation in any jurisdiction wherein it is not so
qualified, or to subject itself to taxation in any jurisdiction
where it is not then subject to taxation, or to consent to
general service of process in any jurisdiction where it is not
then subject to service of process;
(e) use all commercially reasonable efforts to list the Eligible
Securities on each national securities exchange on which the
Common Stock is then listed, if the listing of such securities is
then permitted under the rules of such exchange;
(f) immediately notify the Selling Holders at any time when a
prospectus relating to a registration pursuant to Article 3 or 4
hereof is required to be delivered under the Securities Act of
the happening of any event as a result of which the prospectus
included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state
any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading, and at the request of
the Selling Holders prepare and furnish to the Selling Holders as
many copies of a supplement to or an amendment of such prospectus
as the Selling Holders reasonably request so that, as thereafter
delivered to the purchasers of such Eligible Securities, such
prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading; and
(g) immediately notify the Selling Holders of the issuance by the SEC
or any state securities authority of any stop order suspending
the effectiveness of a registration statement filed pursuant to
Article 3 or 4 hereof or the initiation of any proceedings for
that purpose and take every reasonable effort to obtain the
withdrawal of any such stop order.
The Company may require the Selling Holders to furnish the Company such
information regarding the Selling Holders and the proposed method of
distribution of their respective Eligible Securities as the Company may from
time to time reasonably request in writing and as shall be required by law or by
the SEC in connection with any registration, and each Selling Holder shall
promptly notify the Company of the distribution of such securities. Each Holder
agrees that, as a condition to its participation in any registration under
Articles 3 or 4, it will respond in writing within ten (10) Business Days to any
request by the Company to provide or verify any information regarding that
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Holder or the Holder's Eligible Securities that is required to be included in a
registration statement relating to the Holder's Eligible Securities pursuant to
the rules and regulations of the SEC.
Section 5.2. Blackout Periods. (a) At any time when a registration
statement filed pursuant to Article 3 relating to Eligible Securities is
effective, upon written notice from the Company to the Selling Holders that the
Board of Directors of the Company determines that the Selling Holders' sale of
Eligible Securities pursuant to the registration statement would require
disclosure of non-public material information the disclosure of which would have
a material adverse effect on the Company (an "Information Blackout"), the
Selling Holders shall suspend sales of Eligible Securities pursuant to such
registration statement until the earlier of:
(X) the earlier of (A) the date upon which such material information
is disclosed to the public or ceases to be material or (B) sixty
(60) days after the Company makes such good faith determination,
and
(Y) such time as the Company notifies the Selling Holders that sales
pursuant to such registration statement may be resumed (the
number of days from such suspension of sales by the Selling
Holders until the day when such sales may be resumed hereunder is
hereinafter called a "Sales Blackout Period").
(b) If there is an Information Blackout as provided above, the time period
set forth in Section 5.1(b) shall be extended for a number of days equal to the
number of days in the Sales Blackout Period.
(c) Notwithstanding anything in Section 5.2(a) to the contrary, no
Information Blackout may be imposed with respect to any Eligible Securities:
(i) if the Company shall not have imposed such Information Blackout
on selling holders under other registration rights agreements
that permit the imposition of such Information Blackout under
such circumstances, or
(ii) within seven (7) days following their issuance.
Section 5.3. Qualification for Rule 144 Sales. The Company will take all
actions necessary to comply with the filing requirements described in Rule
144(c) (1) so as to enable the Holders to sell Eligible Securities without
registration under the Securities Act and, upon the written request of any
Holder, the Company will promptly deliver to such Holder a written statement as
to whether it has complied with such filing requirements. In connection with any
sale, transfer or other disposition by any Holder of any Eligible 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 Eligible Securities to be sold and not bearing any Securities Act
legend, and enable certificates for such Eligible Securities to be for such
number of shares and registered in such names as the Holder may reasonably
request at least five (5) Business Days prior to any sale of Eligible Securities
hereunder.
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ARTICLE VI
PREPARATION; REASONABLE INVESTIGATION
Section 6.1. Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement registering Eligible
Securities under the Securities Act, the Company will give the Selling Holders
and their respective counsel and accountants, drafts of such registration
statement for their review and comment prior to filing and such reasonable and
customary access to its books and records and such opportunities to discuss the
business of the Company with its officers and the independent public accountants
who have certified its financial statements as shall be necessary, in the
opinion of the Selling Holders or their respective counsel, to conduct a
reasonable investigation within the meaning of the Securities Act, subject in
all cases to mutually acceptable confidentiality arrangements.
ARTICLE VII
INDEMNIFICATION AND CONTRIBUTION
Section 7.1. Indemnification and Contribution. (a) The Company hereby
agrees to indemnify and hold harmless each Person that exercises registration
rights hereunder and, to the extent applicable, its directors and officers, its
partners, its trustees and each Person who controls any of such Persons, against
any losses, claims, damages, liabilities and expenses, joint or several, to
which such Person may be subject under the Securities Act or otherwise insofar
as such losses, claims, damages, liabilities or expenses (or actions or
proceedings in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in any
registration statement under which such securities were registered under the
Securities Act, any preliminary prospectus or final prospectus included therein,
or any amendment or supplement thereto, or any document incorporated by
reference therein, or (ii) any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and the Company will promptly reimburse each such Person
for any legal or any other expenses reasonably incurred by such Person in
connection with investigating or defending any such loss, claim, damage,
liability, action or proceeding, provided, that, the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability (or
action or proceeding in respect thereof) or expenses arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, any such preliminary prospectus or
final prospectus, amendment or supplement in reliance upon and in conformity
with information furnished to the Company by such Selling Holders or such
underwriter expressly for use in the registration statement. Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of Holders or any such Person and shall survive the transfer of such
securities by the Selling Holders.
(b) Each Selling Holder, by virtue of exercising its registration rights
hereunder, agrees to, severally and not jointly, indemnify and hold harmless (in
the same manner and to the same extent as set forth in clause (a) of this
Article 7) the Company, each director of the Company, each officer of the
Company who shall sign such registration statement, each Person, if any, who
controls the Company within the meaning of the Securities Act, with respect to
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any statement in or omission from such registration statement, any preliminary
prospectus or final prospectus included therein, or any amendment or supplement
thereto, but only to the extent that such statement or omission was made in
reliance upon and in conformity with information furnished by such Selling
Holder to the Company expressly for use in the registration statement. No Holder
shall be liable under this Section 7.1(b) for any statements or omissions of any
other Holder. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of the Company or any such director,
officer or controlling Person and shall survive the transfer of the registered
securities by such Selling Holder and the expiration of this Agreement.
(c) 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 Section 7.1(a) or (b) above, unless
and 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 the indemnified party
other than the indemnification obligation provided under Section 7.1(a) or (b)
above. If the indemnifying party so elects within a reasonable time after
receipt of such notice, the indemnifying party may 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 any such action or proceeding without the
written consent of the indemnified party unless (i), as a condition to such
settlement, the indemnifying party secures the unconditional release of the
indemnified party and (ii) the settlement does not include any admission of
fault, culpability or a failure to act, by or on behalf of the indemnified
party. If the indemnifying party 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 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.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Sections 7.1(a)
and (b) 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, (i) in such proportion as is appropriate
to reflect the relative fault of the Company on the one hand and the Holder on
the other, in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or expenses, or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative fault of but also
the relative benefits to the Company on the one hand and the Holder on the
other, in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits to the indemnifying party and
indemnified party shall be determined by reference to, among other things, the
total proceeds received by the indemnifying party and indemnified party in
connection with the offering to which such losses, claims, damages, liabilities
11
or expenses relate. 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.
The parties hereto agree that it would not be just or equitable if
contribution pursuant to this Section 7.1(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 7.1(d), a Holder shall not be
required to contribute any amount in excess of the amount of the total proceeds
received by such Holder from sales of the Eligible Securities of such Holder
under such registration statement.
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 7.1(d), 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/director of the Company, each officer of the Company who signed such
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.
(e) Indemnification and contribution similar to that specified in the
preceding subdivisions of this Article 7 (with appropriate modifications) shall
be given by the Company and the Selling Holders with respect to any required
registration or other qualification of such Eligible Securities under any
federal or state law or regulation of governmental authority other than the
Securities Act.
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Benefits of Registration Rights. Subject to the limitations of
Sections 3.1 and 4.1, any Holder may severally or jointly exercise the
registration rights hereunder in such manner and in such proportion as they
shall agree among themselves.
Section 8.2. 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, other than any agreement as may exist solely among the
Holders. Except as otherwise expressly provided in this Agreement, no amendment,
12
modification or discharge of this Agreement shall be valid or binding unless set
forth in writing and duly executed by the Company and each Holder against whom
such amendment, modification or discharge is sought to be enforced.
Notwithstanding the foregoing, Schedule A may be amended at any time with the
consent of JRI and the consent of no other Holder will be required for such an
amendment.
Section 8.3. 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.
Section 8.4. Burden and Benefit. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
executors, personal and legal representatives and successors. If a Holder
transfers of Conversion Shares, S-SCUs and/or Common Units in a manner permitted
under the OP Partnership Agreement, such Conversion Shares, S-SCUs and/or Common
Units shall remain subject to this Agreement and, as a condition of the validity
of such disposition, the transferee shall be required to execute and deliver a
counterpart of this Agreement unless such transferee is already a Holder.
Thereafter, such transferee shall be deemed to be a Holder for purposes of this
Agreement.
Section 8.5. Notices. All notices called for under this Agreement shall be
in writing and shall be deemed given upon receipt if delivered personally or by
facsimile transmission and followed promptly by mail, or mailed by registered or
certified mail (return receipt requested), postage prepaid, to the parties at
the addresses set forth opposite their names in Schedule A hereto, 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 8.5 for the service of notices; provided, however, that notices
of a change of address shall be effective only upon receipt thereof. Any notice
delivered to the party hereto to whom it is addressed shall be deemed to have
been given and received on the day it was received; provided, however, that if
such day is not a Business Day then the notice shall be deemed to have been
given and received on the Business Day next following such day and if any party
rejects delivery of any notice attempted to be given hereunder, delivery shall
be deemed given on the date of such rejection. Any notice sent by facsimile
transmission shall be deemed to have been given and received on the Business Day
next following the transmission.
Section 8.6. 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 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
13
any court of the United States or any State thereof having jurisdiction.
Section 8.7. 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 New York,
but not including the choice of law rules thereof.
Section 8.8. 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.
Section 8.9. 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.
Section 8.10. Execution in Counterparts. To facilitate execution, this
Agreement may be executed in as many counterparts as may be required. It shall
not be necessary that the signature of or on behalf of each party appears on
each counterpart, but it shall be sufficient that the signature of or on behalf
of each party appears on one or more of the counterparts. All counterparts shall
collectively constitute a single agreement. It shall not be necessary in any
proof of this Agreement to produce or account for more than a number of
counterparts containing the respective signatures of or on behalf of all of the
parties.
Section 8.11. 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 clause or provision contained
in this Agreement operates or would operate to invalidate this Agreement, in
whole or in part, then such clause or provision only shall be held ineffective,
as though not herein contained, and the remainder of this Agreement shall remain
operative and in full force and effect.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Registration Rights Agreement to be duly executed on its behalf as of the date
first hereinabove set forth.
CBL & ASSOCIATES PROPERTIES, INC.
By: /s/Xxxx X. Xxx
--------------------
Name:XXXX X. XXX
Title: Vice Chairman of the Board
and Chief Financial Officer
Signatures of Holders on Next Page
[Signature Page to Registration Agreement]
00
XXXXXXXXXXX XXXX TIC'S II
By: /s/Xxxxxx Xxxxxx
-------------------------------
Name: XXXXXX XXXXXX
Title: Managing General Partner
MONROEVILLE MALL PARTNERS, L.P.
By: Monroeville Mall, Inc., its general partner
By: s/sJacquelyn Xxxxxx
-------------------------------
Name: XXXXXXXXX XXXXXX
Title: Vice President
[Signature Page to Registration Rights Agreement]
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Schedule A
Holders:
Monroeville Mall TIC's II
Monroeville Mall Partners, L.P.
17
