INVESTOR AGREEMENT Exhibit 10.2
THIS INVESTOR AGREEMENT (this "Agreement"), dated as of October 17, 1996,
is by and between Homestead Village Incorporated, a Maryland corporation (the
"Company") and Security Capital Group Incorporated, a Maryland corporation
("SCG").
W I T N E S S E T H
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WHEREAS, the Company and SCG have entered into that certain Merger and
Distribution Agreement, dated as of May 21, 1996, among Security Capital
Atlantic Incorporated ("Atlantic"), Security Capital Pacific Trust ("PTR"), SCG
and the Company (the "Merger Agreement");
WHEREAS, pursuant to a Warrant Purchase Agreement dated as of May 21, 1996
(the "Warrant Purchase Agreement"), each of SCG, PTR and Atlantic will be issued
warrants (the "Warrants") to acquire Common Stock (as hereinafter defined);
WHEREAS, pursuant to the Merger Agreement, SCG will be issued, through a
distribution from Atlantic and PTR, Warrants and shares of common stock, $0.01
par value per share ("Common Stock"), of the Company; and
WHEREAS, concurrently herewith, each of PTR and Atlantic are entering into
an Investor Agreement (as applicable, the "PTR Investor Agreement" and the
"Atlantic Investor Agreement"), with Homestead, pursuant to which, among other
things, each of PTR and Atlantic will be entitled to nominate one person to the
Board (as hereafter defined).
NOW, THEREFORE, in consideration of the premises, the mutual covenants
herein contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Definitions. In addition to the terms defined elsewhere herein, the
following terms shall have the following meanings:
"Articles of Incorporation" shall mean the Company's Articles of
Incorporation, as now in effect or as amended from time to time.
"Beneficial Owner" shall mean any Person deemed to be a "Beneficial Owner"
of or to "Beneficially Own" any Common Stock in accordance with the term
"beneficial ownership" as defined in Rule 13d-3 under the Exchange Act.
"Board" shall mean the Board of Directors of the Company.
"Commission" shall mean the Securities and Exchange Commission or any
successor agency or entity thereto.
"Common Stock" shall have the meaning set forth in the preamble of this
Agreement.
"Company" shall have the meaning set forth in the first paragraph of this
Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
A "group" shall have the meaning assigned thereto in Section 13(d)(3) of
the Exchange Act.
"Nominee" shall have the meaning set forth in Section 6(a) of this
Agreement.
A "Person" shall mean any individual, firm, corporation, partnership or
other entity.
"SCG" shall have the meaning set forth in the first paragraph of this
Agreement.
"Securities Act" shall mean the Securities Act of 1933, as amended.
2. Exercise of Warrants. Subject to the terms and conditions hereafter
set forth, from and after the date hereof, at any time and from time to time,
upon not less than 10 business days' prior written notice, SCG shall exercise
such number of Warrants then owned by SCG as requested by the Company.
3. Representations and Warranties of the Company. The Company hereby
represents and warrants to SCG as follows:
(a) Organization and Standing. The Company has been duly organized
and is validly existing as a corporation in good standing under the laws of
the State of Maryland, with full power and authority to own its properties
and conduct its business as now conducted and as proposed by it to be
conducted. The Company is duly qualified to do business and is in good
standing in each jurisdiction in which the character of the business
conducted by it or the location of the properties owned or leased by it
makes such qualification necessary, except where the failure to be so
qualified and in good standing would not reasonably be expected to have a
material adverse effect on the business, operations, properties, assets,
condition (financial or other), results of operations or properties of the
Company.
(b) No Defaults. The Company is not in violation of its Articles of
Incorporation, Bylaws or other governing documents, nor is it in default in
the performance of any obligation, agreement or condition contained in any
license, contract, indenture, mortgage, deed of trust, lease or loan
agreement or in any bond, debenture,
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note or any other evidence of indebtedness to which it is a party or by
which it is bound, except where such default does not materially adversely
affect the condition (financial or other), properties or business of the
Company. The performance of this Agreement and the consummation of the
transactions herein contemplated will not conflict with the Articles of
Incorporation, Bylaws or other governing documents of the Company, or
result in a breach of, or default under, any agreement, indenture,
mortgage, deed of trust, lease or other instrument to which the Company is
a party or by which it is bound, or any law, rule, administrative
regulation or decree of any court, or governmental agency or body having
jurisdiction over the Company or its properties or result in the creation
or imposition of any lien, charge, claim or encumbrance upon any property
or asset of the Company, except as any of the foregoing would not
reasonably be expected to have a material adverse effect on the business,
operations, properties, assets, condition (financial or other), results of
operations or prospects of the Company.
(c) Issuance. The Common Stock, when issued and delivered by the
Company to SCG upon exercise of Warrants, will be duly authorized, validly
issued and, when paid for, will be fully paid and non-assessable, free and
clear of any security interest, lien, charge or encumbrance whatsoever and
will have the voting powers, preferences and other rights, and will be
subject to qualifications and restrictions, as set forth in the Articles of
Incorporation.
(d) Authority. The Company has full right, power and authority to
enter into this Agreement and to carry out its obligations hereunder. This
Agreement has been duly authorized, executed and delivered by the Company
and constitutes a valid and binding agreement of the Company enforceable
against it in accordance with its terms, except to the extent that its
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other laws affecting the enforcement of creditors' rights
generally and judicial limitations on the right of specific performance or
by general equitable principles, and except as enforceability of
indemnification provisions hereof may be limited by federal securities
laws.
(e) No Violation. The Company is not in violation of any law,
ordinance, governmental rule or regulation or court decree to which it may
be subject nor has it failed to obtain any license, permit, franchise or
other governmental authorization necessary to the ownership of its property
or to the conduct of its business, which violation or failure to obtain is
reasonably expected to have a material adverse effect on the business,
operations, properties, assets, condition (financial or other), results of
operations or prospects of the Company.
(f) Investment Company Act. The Company is not required to be
registered under the Investment Company Act of 1940, as amended.
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4. Representations and Warranties of SCG. SCG hereby represents and
warrants to the Company as follows:
(a) Organization and Standing. SCG has been duly organized and is
validly existing as a corporation in good standing under the laws of the
State of Maryland, with corporate power and authority to own its properties
and conduct its business as now conducted.
(b) Authorization. SCG has full right, power and authority to enter
into this Agreement and to carry out its obligations hereunder. This
Agreement has been duly authorized, executed and delivered by SCG and
constitutes a valid and binding agreement of SCG enforceable against it in
accordance with its terms, except to the extent that its enforceability may
be limited by applicable bankruptcy, insolvency, reorganization or other
laws affecting the enforcement of creditors' rights generally and judicial
limitations on the right of specific performance or by general equitable
principles. The performance by SCG of all of its obligations under this
Agreement and the consummation of the transactions herein contemplated will
not conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument to which SCG is a
party or by which SCG is bound or to which any of the property or assets of
SCG is subject, nor will any such action result in any violation of the
provisions of the Articles of Incorporation or the By-Laws of SCG or any
applicable law or statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over SCG or any of its
properties.
(c) Investment Company Act. SCG is not required to be registered
under the Investment Company Act of 1940, as amended.
5. Conditions to the Obligations of SCG. The obligations of SCG to
exercise any Warrants under this Agreement are subject to the fulfillment at
each time of exercise of each of the following conditions:
(a) Representations and Warranties. The representations and
warranties in this Agreement made by the Company shall have been true in
all material respects when made, and shall be true in all material respects
on the date of exercise of the Warrants as though such representations and
warranties were made at such date.
(b) Performance. The Company shall have performed and complied in
all material respects with all agreements, covenants, obligations and
conditions required by this Agreement to be performed or complied with by
it.
(c) Casualty and Other Calamity. The Company shall not have
sustained any loss on account of fire, explosion, flood, accident, calamity
or any other cause, of such
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character as materially adversely affects its business or property
considered as an entire entity, whether or not such loss is covered by
insurance.
(d) Litigation and Other Proceedings. There shall be no litigation
instituted or threatened against the Company and there shall be no
proceeding instituted or threatened against the Company before or by any
federal or state commission, regulatory body or administrative agency or
other governmental body, domestic or foreign, wherein an unfavorable
ruling, decision or finding would materially adversely affect the business,
franchise, licenses, patents, operations or financial condition or income
of the Company.
(e) Lack of Material Change. The Company shall not have experienced
any event (other than changes in general economic or market conditions)
which would reasonably be expected to result in a material adverse change,
individually or in the aggregate, in the business, operations, properties,
assets, liabilities, condition (financial or other), results of operations
or prospects of the Company.
6. Covenants of the Company. The Company covenants and agrees with SCG
as follows:
(a) Board Representation. From and after the date hereof and for so
long thereafter as SCG Beneficially Owns 10% or more of the outstanding
shares of Common Stock, the Company shall not increase the number of
members of its Board to more than seven (7), and SCG shall be entitled to
designate one or more Persons for nomination to the Board (such Person, a
"Nominee") as follows and the Company will use its best efforts to cause
the election of such Nominee or Nominees:
(i) So long as SCG Beneficially Owns at least 10% but less than
30% of the outstanding shares of Common Stock, one (1) Nominee;
(ii) So long as SCG Beneficially Owns 30% or more of the
outstanding shares of Common Stock, that number of Nominees as shall
bear approximately the same ratio (rounded down to the nearest whole
number) to the total number of members of the Board as the number of
shares of Common Stock Beneficially Owned by SCG bears to the total
number of outstanding shares of Common Stock, provided, that (A) SCG
shall be entitled to designate not more than two (2) Nominees so long
as the Board consists of not more than seven (7) members; and (B) any
Person who is employed by SCG or who is an employee, a 25% shareholder
or a director of any corporation of which SCG is a 25% shareholder
(except for the Company) shall be deemed to be a designee of SCG.
The Nominee or Nominees of SCG may, but need not, include the same person
or persons nominated by either PTR or Atlantic pursuant to the PTR Investor
Agreement or the Atlantic Investor Agreement.
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(b) File Reports. For as long as SCG shall continue to Beneficially Own
any shares of Common Stock, the Company shall file on a timely basis all annual,
quarterly and other reports required to be filed by it under Sections 13 and
15(d) of the Exchange Act, and the Rules and Regulations of the Commission
thereunder, as amended from time to time.
(c) Advice of Actions. Without first having consulted with the Nominee or
Nominees of SCG designated by SCG in writing, the Company will not seek approval
by the Board of any proposal relating to:
(i) Budget. The Company's annual budget.
(ii) Expenses. Incurring expenses in any year exceeding (A) any line
item in the annual budget by 20% and (B) the total expenses set forth in
the annual budget by 5%.
(iii) Assets. The acquisition or sale of any assets in any single
transaction or any series of related transactions where the aggregate
purchase price paid or received by the Company exceeds $5,000,000.
(iv) Contracts. Entering into any new contract with a service
provider (A) for investment management, property management, or leasing
services or (B) that reasonably contemplates annual contract payments by
the Company in excess of $200,000.
(v) Dividends. The declaration or payment of any dividend or other
distribution.
(vi) Benefit Plans. The adoption of any employee benefit plan
pursuant to which shares of stock of the Company or any securities
convertible into shares of stock of the Company may be issued.
(vii) Equity Securities. The offer or sale of any shares of stock of
the Company or any securities convertible into shares of stock of the
Company (other than the sale or grant of any stock of the Company or
options to purchase stock of the Company pursuant to the provisions of any
benefit plan approved by the stockholders of the Company and the exercise
of any options so granted); provided, however, that nothing contained in
this clause (vii) shall in any way restrict or impair the obligations and
rights of any party under the terms of any agreement entered into in
connection with the transactions contemplated by the Merger Agreement.
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(viii) The incurrence, restructuring, renegotiation or repayment of
indebtedness for borrowed money (including guarantees thereof) in which the
aggregate amount involved exceeds $5,000,000; provided, however, that
nothing contained in this clause (viii) shall in any way restrict or impair
the obligations and rights of any party under the terms of any agreement
entered into in connection with the transactions contemplated by the Merger
Agreement.
Notwithstanding the foregoing, the Company shall have no obligation to
accept or comply with any advice offered by SCG or its designated Nominees in
any consultation pursuant to this Section 6(c).
(d) Inspection. At any time during regular business hours and as often as
reasonably requested of the Company's officers, permit SCG or any authorized
employee, agent or representative of SCG to examine and make copies and
abstracts from the records and books of account of, and to visit the properties
of, the Company and to discuss the affairs, finances, and accounts of the
Company with any of its officers or directors; provided, that all costs and
expenses of such inspection shall be borne by SCG.
7. Registration Rights.
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(a) Demand. At any time after the first anniversary of the date on which
the Common Stock is registered under Section 12(b) or 12(g) of the Exchange Act,
SCG may request, on not more than three (3) separate occasions, registration of
all or any part of its Registrable Securities (as defined in subsection (g)
below) pursuant to Rule 415 under the Securities Act by delivering written
notice to the Company specifying the number of Registrable Securities that SCG
desires to sell and the Company shall use its reasonable efforts to effect the
registration of such Registrable Securities under the Securities Act.
(b) Registration Procedures. If and whenever the Company is required by
any of the provisions of this Section 7 to use its reasonable efforts to effect
the registration of any of the Registrable Securities under the Securities Act,
the Company shall:
(i) prepare and file with the Commission a registration statement
with respect to such securities and use its reasonable efforts to cause
such registration statement to become effective and remain effective for as
long as shall be necessary to complete the distribution of at least 90% of
the Registrable Securities so registered;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for so
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long as shall be necessary to complete the distribution of at least 90% of
the Registrable Securities so registered and to comply with the provisions
of the Securities Act with respect to the sale or other disposition of all
securities covered by such registration statement whenever SCG shall desire
to sell or otherwise dispose of the same within such period;
(iii) furnish to SCG such numbers of copies of such registration
statement, each amendment and supplement thereto, the prospectus included
in such registration statement, including any preliminary prospectus, and
any amendment or supplement thereto, and such other documents, as may be
reasonably requested in order to facilitate the sale or other disposition
of the Registrable Securities owned by SCG;
(iv) use its reasonable efforts to register and qualify the
securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as SCG shall reasonably
request, and do any and all other acts and things reasonably requested by
SCG to assist the public sale or other disposition by SCG in such
jurisdictions of the securities owned by SCG except that the Company shall
not for any such purpose be required to qualify to do business as a foreign
corporation in any jurisdiction wherein it is not so qualified or to file
therein any general consent to service of process;
(v) otherwise use its reasonable efforts to comply with all
applicable rules and regulations of the Commission, and make available to
its security holders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve months, beginning with the
first fiscal quarter beginning after the effective date of the registration
statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act;
(vi) use its reasonable efforts to list such securities on any
securities exchange or quotation system on which any securities of the
Company are then listed, if the listing of such securities is then
permitted under the rules of such exchange or quotation system; and
(vii) notify SCG, at any time when a prospectus relating to the
Registrable Securities is required to be delivered under the Securities
Act, of the happening of any event of which it has knowledge as a result of
which the prospectus included in such registration statement, as then in
effect, contains an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
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(c) Company's Ability to Postpone. The Company shall have the right to
postpone the filing of a registration statement under this Section 7 for a
reasonable period of time (not exceeding 60 days) if the Company furnishes SCG
with a certificate signed by the Chairman of the Board or the President of the
Company stating that, in its good faith judgment, the Board has determined that
effecting the registration at such time would adversely affect a material
financing, acquisition, disposition of assets or stock, merger or other
comparable transaction or would require the Company to make public disclosure of
information the public disclosure of which would have a material adverse effect
upon the Company.
(d) Expenses. All expenses incurred in the registration of Registrable
Securities under this Agreement shall be paid by the Company. The expenses
shall include, without limitation, the expenses of preparing the registration
statement and the prospectus used in connection therewith and any amendment or
supplement thereto, printing and photocopying expenses, all registration and
filing fees under Federal and state securities laws, and expenses of complying
with the securities or blue sky laws of any jurisdictions; provided, however,
that SCG shall be responsible for paying the fees and disbursements of its own
counsel.
(e) Indemnification. In the event any Registrable Securities are
included in a registration statement under this Section 7:
(i) Indemnity by Company. Without limitation of any other indemnity
provided to SCG, to the extent permitted by law, the Company will indemnify
and hold harmless SCG and its officers, directors and each Person, if any,
who controls SCG (within the meaning of the Securities Act or the Exchange
Act), against any losses, claims, damages, liabilities and expenses (joint
or several) to which they may become subject under the Securities Act, the
Exchange Act or other federal or state law, insofar as such losses, claims,
damages, liabilities and expenses (or actions in respect thereof) arise out
of or are based upon any of the following statements, omissions or
violations (collectively a "Violation"): (i) any untrue statement or
alleged untrue statement of a material fact contained in any registration
statement (including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto), (ii) the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, or (iii) any
violation or alleged violation by the Company of the Securities Act, the
Exchange Act, any state securities law or any rule or regulation
promulgated under the Securities Act, the Exchange Act or any state
securities law, and the Company will reimburse SCG and its officers,
directors and any controlling person thereof for any reasonable legal or
other expenses incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, expense or action;
provided, however, that the
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Company shall not be liable in any such case for any such loss, claim,
damage, liability, expense or action to the extent that it arises out of or
is based upon a Violation that occurs in reliance upon and in conformity
with written information furnished expressly for use in connection with
such registration by SCG or any officer, director or controlling person
thereof.
(ii) Indemnity by SCG. In connection with any registration statement
in which SCG is participating, SCG will furnish to the Company in writing
such information and affidavits as the Company reasonably requests for use
in connection with any such registration statement or prospectus and, to
the extent permitted by law, will indemnify the Company, its directors and
officers and each Person who controls the Company (within the meaning of
the Securities Act or Exchange Act) against any losses, claims, damages,
liabilities and expenses resulting from any Violation, but only to the
extent that such Violation is contained in any information or affidavit so
furnished in writing by SCG; provided, that the obligation to indemnify
will be several and not joint and several with any other Person and will be
limited to the net amount received by SCG from the sale of Registrable
Securities pursuant to such registration statement.
(iii) Notice; Right to Defend. Promptly after receipt by an
indemnified party under this Section 7(e) of notice of the commencement of
any action (including any governmental action), such indemnified party
will, if a claim in respect thereof is to be made against any indemnifying
party under this Section 7(e), deliver to the indemnifying party a written
notice of the commencement thereof and the indemnifying party shall have
the right to participate in, and, if the indemnifying party agrees in
writing that it will be responsible for any costs, expenses, judgments,
damages and losses incurred by the indemnified party with respect to such
claim, jointly with any other indemnifying party similarly noticed, to
assume the defense thereof with counsel mutually satisfactory to the
parties; provided, however, that an indemnified party shall have the right
to retain its own counsel, with the fees and expenses to be paid by the
indemnifying party, if the indemnified party reasonably believes that
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential
differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action shall relieve such indemnifying party of
any liability to the indemnified party under this Section 7(e) only if and
to the extent that such failure is prejudicial to its ability to defend
such action, and the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to
any indemnified party other than under this Section 7(e).
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(iv) Contribution. If the indemnification provided for in this
Section 7(e) is held by a court of competent jurisdiction to be
unavailable to an indemnified party with respect to any loss,
liability, claim, damage or expense referred to therein, then the
indemnifying party, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage
or expense in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the
indemnified party on the other hand in connection with the statements
or omissions which resulted in such loss, liability, claim, damage or
expense as well as any other relevant equitable considerations. The
relevant fault of the indemnifying party and the indemnified party
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission
to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. Notwithstanding the
foregoing, the amount SCG shall be obligated to contribute pursuant to
this Section 7(e)(iv) shall be limited to an amount equal to the
proceeds to SCG of the Registrable Securities sold pursuant to the
registration statement which gives rise to such obligation to
contribute (less the aggregate amount of any damages which SCG has
otherwise been required to pay in respect of such loss, claim, damage,
liability or action or any substantially similar loss, claim, damage,
liability or action arising from the sale of such Registrable
Securities).
(v) Survival of Indemnity. The indemnification provided by this
Section 7(e) shall be a continuing right to indemnification and shall
survive the registration and sale of any securities by any Person
entitled to indemnification hereunder and the expiration or
termination of this Agreement.
(f) Limitations on Registration Rights.
(i) The Company shall not, without the prior written consent of
SCG, include in any registration in which SCG has a right to
participate pursuant to this Agreement any securities of any Person
other than SCG.
(ii) SCG shall not, without the prior written consent of the
Company, effect any public sale or distribution (including sales
pursuant to Rule 144 under the Securities Act) of securities of the
Company during any period commencing 30 days prior to and ending 60
days after the effective date any registration statement filed by the
Company on behalf of any Person (including the Company), other than a
registration statement on Form S-8 or any successor form.
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(g) Registrable Security. The term Registrable Security means (i)
any shares of Common Stock issuable to SCG upon exercise of Warrants, (ii)
any other shares of Common Stock owned by SCG and (iii) any shares of
Common Stock or other securities that may subsequently be issued with
respect to such shares of Common Stock as a result of a stock split or
dividend or any sale, transfer, assignment or other transaction by the
Company involving the shares of Common Stock and any securities into which
the shares of Common Stock may thereafter be changed as a result of merger,
consolidation, recapitalization or otherwise. As to any particular
Registrable Securities, such securities will cease to be Registrable
Securities when they have been distributed to the public pursuant to an
offering registered under the Securities Act. All Registrable Securities
shall cease to be Registrable Securities when all such securities may be
sold in any three-month period pursuant to Rule 144, or any successor to
such rule, under the Securities Act.
(h) Assignment. SCG may assign without the consent of the Company
its rights under this Section 7 with respect to any Registrable Securities
to any party (a "Lender") to whom it provides a bona fide pledge,
assignment or hypothecation of such Registrable Securities. If (i) SCG
assigns its rights under this Section 7 with respect to Registrable
Securities having an aggregate offering value of at least $10,000,000 to a
Lender, (ii) any Event of Default occurs and is continuing under the
related loan agreement between SCG and the Lender and (iii) the Common
Stock is not registered under Section 12(b) or 12(g) of the Exchange Act,
the Lender may request one registration of all or part of its Registrable
Securities having an aggregate offering value of at least $10,000,000 on
Form S-1 (or any successor form) under the Securities Act by delivering
written notice to the Company specifying the number of Registrable
Securities that the Lender desires to sell and the Company shall use its
reasonable efforts to effect the registration of such Registrable
Securities under the Securities Act in accordance with and subject to the
provisions of this Section 7.
8. Reports. For so long as SCG owns any Registrable Securities, the
Company shall file on a timely basis all annual, quarterly and other reports
required to be filed by it under Section 13 and 15(d) of the Exchange Act, and
the rules and regulations of the Commission thereunder, as amended from time to
time.
9. Rule 144. From and after the time the Company has securities
registered under Section 12(b) or 12(g) of the Exchange Act, in order to permit
SCG to sell the Registrable Securities it holds, if it so desires, from time to
time pursuant to Rule 144 under the Securities Act, or any successor to such
rule, the Company shall make available adequate current public information and
file with the Commission in a timely manner all reports and other documents
required of the Company under the Exchange Act.
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10. Miscellaneous.
(a) Survival of Representations, Warranties and Covenants. All
representations, warranties and covenants contained herein shall survive the
execution of this Agreement and shall remain in full force and effect following
the exercise by SCG of all Warrants required by it to be exercised hereunder;
provided, that Sections 2 and 6 of this Agreement shall terminate and be of no
further force or effect if SCG Beneficially Owns less than 10% of the shares of
Common Stock then outstanding.
(b) Successors and Assigns. This Agreement shall be binding upon, and
inure to the benefit of, the parties hereto and their respective heirs, personal
representatives, successors, assigns and affiliates, but shall not be assignable
by any party hereto without the prior written consent of the other party hereto.
(c) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, sent via a recognized
overnight courier with delivery confirmed in writing or sent via facsimile to
the parties at the following addresses (or such other address for a party as
shall be specified by like notice):
If to the Company:
Homestead Village Incorporated
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xx, Xxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Xx.
Facsimile: (000) 000-0000
If to SCG:
Security Capital Group Incorporated
000 Xxxxxxx Xxxxxx
Xxxxx Xx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
(d) Waiver. No party may waive any of the terms or conditions of this
Agreement, except by a duly executed writing referring to the specific provision
to be waived.
(e) Amendment. This Agreement may be amended only by a writing duly
executed by both the Company and SCG.
(f) Severability. Insofar as is possible, each provision of this Agreement
shall be interpreted so as to render it valid and enforceable under applicable
law and severable from the
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remainder of this Agreement. A finding that any such provision is invalid or
unenforceable in any jurisdiction shall not affect the validity or
enforceability of any other provision or the validity or enforceability of such
provision under the laws of any other jurisdiction.
(g) Entire Agreement. This Agreement constitutes the entire agreement, and
supersedes all other prior agreements and understandings, both written and oral,
among the parties hereto and their affiliates, with respect to the subject
matter hereof.
(h) Expenses. Except as otherwise expressly contemplated herein to the
contrary, regardless of whether the transactions contemplated hereby are
consummated, each party hereto shall pay its own expenses incident to preparing
for, entering into and carrying out this Agreement and the consummation of the
transactions contemplated hereby.
(i) Captions. The Section and Paragraph captions herein are for
convenience of reference only, do not constitute part of this Agreement and
shall not be deemed to limit or otherwise affect any of the provisions hereof.
(j) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument.
(k) Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Maryland.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the day and year first above written.
HOMESTEAD VILLAGE INCORPORATED
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
--------------------------
Xxxxx X. Xxxxxxxx, Xx.
Chairman
SECURITY CAPITAL GROUP INCORPORATED
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Xxxxxxx X. Xxxxx
Senior Vice President
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