Exhibit 10-5
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made
and entered into as of July 9, 1998 by and between American Real Estate
Investment Corporation, a Maryland corporation (the "Company"), and the holders
of shares of common stock listed on Schedule A attached hereto including their
respective successors, assigns and transferees (herein referred to individually
as a "Holder" and collectively as the "Holders").
WHEREAS, on the date hereof, each Holder is receiving such
number of shares of common stock, par value $.001 per share (the "Common
Stock"), of the Company set forth opposite such Holder's name on Schedule A
attached hereto (the "Registrable Securities");
WHEREAS, in connection therewith, the Company has agreed to
grant to Holders the Registration Rights (as defined in Section 1 hereof);
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 hereby are
acknowledged, hereby agree as follows:
Section 1. Registration Rights
Each Holder shall be entitled to offer for sale from time to
time pursuant to a shelf registration statement the Registrable Securities,
subject to the terms and conditions set forth herein (the "Registration
Rights").
1.1 Registration Rights.
(a) Registration Procedure. The Company will cause to
be filed with the Securities and Exchange Commission (the "SEC") within
ten (10) days of the date of this Agreement a shelf registration
statement and related prospectus, including any preliminary prospectus
and documents incorporated by reference (the "Shelf Registration
Statement") that complies as to form in all material respects with
applicable SEC rules providing for the sale by each of the Holders of
such Holder's Registrable Securities, and agrees (subject to Section
1.2 hereof) to use its commercially reasonable best efforts to cause
such Shelf Registration Statement to be declared effective by the SEC
as soon as practicable thereafter. Each Holder agrees to provide in a
timely manner information regarding the proposed distribution by such
Holder of the Registrable Securities and such other information
reasonably requested by the Company in connection with the preparation
of and for inclusion in the Shelf Registration Statement. The Company
agrees (subject to Section 1.2 hereof) to use its commercially
reasonable best efforts to keep the Registration Statement effective
and free of material misstatements or omissions (including the
preparation and filing of any amendments and supplements necessary for
that purpose) until the earlier of (i) the first date on which all
Holders have consummated the sale of all of such Holders' Registrable
Securities registered under the Shelf Registration Statement, (ii) the
date on which all of the Registrable Securities are eligible for sale
pursuant to Rule 144(k) (or any successor provision) or in a single
transaction pursuant to Rule 144(e) (or any successor provision) under
the Securities Act of 1933, as amended (the "Securities Act") or (iii)
the second anniversary of the date of this
Agreement. The Company agrees to provide to each Holder a reasonable
number of copies of the final Shelf Registration Statement and the
related prospectus (including any preliminary prospectus) and any
amendments or supplements thereto. The Company further agrees that it
will use commercially reasonable efforts to obtain the withdrawal of
any order suspending the effectiveness of the Shelf Registration
Statement at the earliest possible moment.
(b) Offers and Sales. All offers and sales by each
Holder under the Shelf Registration Statement referred to in this
Section 1.1, if any, shall be completed within the period during which
the Registration Statement is required to remain effective pursuant to
Section 1.1(a), and, upon expiration of such period, no Holder will
offer or sell any Registrable Securities under the Registration
Statement. If directed by the Company, each Holder will return all
undistributed copies of the Prospectus in its possession upon the
expiration of such period. Each Holder shall promptly, but in any event
no later than two (2) business days after a sale by such Holder of
Registrable Securities, notify the Company of any sale or other
transfer by such Holder of Registrable Securities and include in such
notice the number of Registrable securities sold or transferred by
Holder.
(c) Limitations. Each Holder agrees not to offer,
sell, offer or contract to sell, transfer, assign, grant any option for
the sale of, pledge or encumber, or otherwise convey any shares of
Common Stock until the first business day after the first anniversary
of this Agreement.
1.2 Suspension of Offering.
(a) If the Company determines in its good faith
judgment that the filing of the Shelf Registration Statement under
Section 1.1 hereof or the use of any prospectus would materially
impede, delay or interfere with any pending material financing,
acquisition or corporate reorganization or other material corporate
development involving the Company or any of its subsidiaries, or
require the disclosure of important information which the Company has a
material business purpose for preserving as confidential or the
disclosure of which would materially impede the Company's ability to
consummate a significant transaction, upon written notice of such
determination by the Company, the rights of each Holder to offer, sell
or distribute any Registrable Securities pursuant to the Shelf
Registration Statement or to require the Company to take action with
respect to the registration or sale of any Registrable Securities
pursuant to the Shelf Registration Statement (including any action
contemplated by Section 1.1 hereof) will be suspended until the date
upon which the Company notifies the Holders in writing that suspension
of such rights for the grounds set forth in this Section 1.2(a) is no
longer necessary, but, in any event, no such period shall extend for
longer than 45 days; provided the Company may deliver only two such
notices in any twelve month period.
(b) In the case of the registration of any
underwritten public offering proposed by the Company (other than any
registration by the Company on Form S-8, or a successor or
substantially similar form, of (A) an employee stock option, stock
purchase or compensation plan or of securities issued or issuable
pursuant to any such plan or (B) a dividend reinvestment plan), each
Holder agrees, if requested in writing by the managing underwriter or
underwriters administering such offering, not to effect any
underwritten offering for the resale of Registrable Securities (or any
option or right to acquire Registrable Securities) during the period
commencing on the 7th day prior to the expected effective date of the
registration statement covering such underwritten public offering or
the date on which the proposed offering is expected to commence (which
date shall be stated in such notice) and ending on the date specified
by such managing underwriter in such
2
written request to such Holder, which date shall not be later than 45
days after such expected date of effectiveness or the commencement of
the offering, as the case may be.
1.3 Expenses. The Company shall pay all expenses incident to
the performance by it of its registration obligations under this Section 1,
including (i) all stock exchange, SEC and state securities registration, listing
and filing fees, (ii) all expenses incurred in connection with the preparation,
printing and distributing of the Shelf Registration Statement and prospectus
(including all expenses incurred in connection with the delivery to any Holder
of such number of copies of any prospectus as such Holder may reasonably
request), and (iii) fees and disbursements of counsel for the Company and of the
independent public accountants of the Company. Each Holder shall be responsible
for the payment of any brokerage and sales commissions, fees and disbursements
of such Holder's counsel, and any transfer taxes relating to the sale or
disposition of the Registrable Securities by such Holder.
1.4 Qualification. The Company agrees to use its commercially
reasonable efforts to register or qualify the Registrable Securities by the time
the Shelf Registration Statement is declared effective by the SEC under all
applicable state securities or "blue sky" laws of such jurisdictions as any
Holder shall reasonably request in writing, to keep each such registration or
qualification effective during the period the Shelf Registration Statement is
required to be kept effective, and to do any and all other acts and things which
may be reasonably necessary or advisable to enable each Holder to consummate the
disposition in each such jurisdiction of the Registrable Securities owned by
such Holder; provided, however, that the Company shall not be required to (x)
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 Section 1.4, (y) subject itself to taxation in any such
jurisdiction, or (z) submit to the general service of process in any such
jurisdiction.
1.5 Notices to Holders. Subject to Section 1.1(a) hereof,
during the period that the Company is required to keep the Shelf Registration
Statement effective, the Company will advise the Holders within a reasonable
time (i) when the prospectus or any prospectus supplement or post-effective
amendment thereto has been filed, and when the same has become effective, (ii)
of any request by the SEC for any amendments to, or issuance by the SEC of any
stop order with respect to the Shelf Registration Statement or any prospectus or
amendment thereto, or (iii) that an amendment or supplement to the most recent
Prospectus or prospectus supplement, as the case may be, is necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
1.6 Listing. The Company agrees to use its reasonable efforts
to cause all Registrable Securities to be listed on any securities exchange on
which similar securities issued by the Company are listed.
Section 2. Indemnification
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"), as
follows:
(a) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of or based
upon any untrue statement or alleged untrue statement of a material
fact contained in any registration statement (or any amendment thereto)
pursuant to which
2
the Registrable Securities 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 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;
(b) against any and all loss, liability, claim,
damage 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, which consent shall not be unreasonably withheld; and
(c) 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 (a) or (b)
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 or
expense to the extent arising out of (i) 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 or on behalf of such Holder
expressly for use in the Shelf Registration Statement (or any amendment thereto)
or the related prospectus (or any amendment or supplement thereto), or (ii) such
Holder's failure to deliver an amended or supplemental Prospectus (provided such
Holder was notified in writing pursuant to Section 1.5, or otherwise, of the
need for an amended or supplemental Prospectus) if such loss, liability, claim,
damage or expense would not have arisen had such delivery occurred.
2.2 Indemnification by Holder. Each Holder (on a several and
not joint basis) agrees to indemnify and hold harmless the Company, and each of
its directors and officers (including each director 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:
(a) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of or based
upon any untrue statement or alleged untrue statement of a material
fact contained in any registration statement (or any amendment thereto)
pursuant to which the Registrable Securities 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 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
3
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(b) against any and all loss, liability, claim,
damage 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
Holder, which consent shall not be unreasonably withheld; and
(c) 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 (a) or (b)
above;
provided, however, that the indemnity provided pursuant to this Section 2.2
shall only apply with respect to any loss, liability, claim, damage or expense
to the extent arising out of (i) 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 or on behalf of such Holder
expressly for use in the Registration Statement (or any amendment thereto) or
the related prospectus (or any amendment or supplement thereto), or (ii) such
Holder's failure to deliver an amended or supplemental prospectus (provided such
Holder was notified in writing pursuant to Section 1.5, or otherwise, of the
need for an amended or supplemental Prospectus) if such loss, liability, claim,
damage or expense would not have arisen had such delivery occurred.
Notwithstanding the provisions of this Section 2.2, no Holder shall be required
to indemnify the Company, its officers, directors or control persons with
respect to 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 Shelf
Registration Statement (after deducting the amounts already paid to the Company
by such Holder or any person, if any, who controls such Holder pursuant to this
Section 2.2), and no Holder shall be liable under this Section 2.2 for any
statements or omissions of any other Holder.
2.3 Conduct of Indemnification Proceedings. The indemnified
party 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 2.1 or 2.2 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 or
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 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 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, as a
condition to such settlement, the indemnifying party 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
4
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 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 (i) is not so entitled to assume the defense of such
action, (ii) does not assume such defense, after having received the notice
referred to in the first sentence of this paragraph, or (iii) fails to employ
counsel that is reasonably satisfactory to the indemnified party, 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, which consent shall not be unreasonably withheld. 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. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
this Section 2 is for any reason held to be unenforceable by the indemnified
party although applicable in accordance with its terms, the Company and the
applicable 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 such Holder, (i) in such proportion as is
appropriate to reflect the relative fault of the Company on the one hand and
such Holder on the other hand, 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 such Holder
on the other hand, from the purchase and sale of the Registrable Securities, 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
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 obligations
of each Holder under this Section 2.4 are several and not joint.
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 the immediately preceding
paragraph. Notwithstanding the provisions of this Section 2.4, no Holder shall
be required to contribute any amount in excess of the amount of the total
proceeds to that Holder from sales of the Registrable Securities of such Holder
under the Shelf Registration Statement.
Notwithstanding the foregoing, no person guilty of fraudulent
misrepresentation (within the
5
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 any Holder within the meaning of Section 15 of the Securities Act shall
have the same rights to contribution as such Holder, and each director 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. Rule 144 Compliance
The Company covenants that it will file the reports required
to be filed by the Company under the Securities Act and the Exchange Act so as
to enable each Holder to sell Registrable Securities, pursuant to Rule 144 under
the Securities Act. In connection with any sale, transfer or other disposition
by any Holder of any Registrable Securities pursuant to Rule 144 under the
Securities Act, the Company shall cooperate with such Holder to facilitate the
timely preparation and delivery of certificates representing 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.
Section 4. Miscellaneous
4.1 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 the
Company and the applicable Holder.
4.2 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.
4.3 Assignment. This Agreement shall inure to the benefit of
and be binding on the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders. If any successor, assignee or transferee of any
Holder shall acquire Registrable Securities, in any manner, whether by operation
of law or otherwise, such Registrable Securities shall be held subject to all of
the terms of this Agreement, and by taking and holding Registrable Securities
such Person shall be conclusively deemed to have agreed to be bound by all of
the terms and provisions hereof.
4.4 Notices. All notices, payments, demands or other
communications given hereunder shall be deemed to have been duly given and
received (i) upon personal delivery, (ii) in the case of notices sent within,
and for delivery within, the United States, as of the date shown on the return
receipt after mailing by registered or certified mail, return receipt requested,
postage prepaid, or (iii) the second succeeding business day after deposit with
Federal Express or other equivalent air courier delivery service,
6
unless the notice is held or retained by the customs service, in which case the
date shall be the fifth succeeding business day after such deposit.
4.5 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 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.
4.6 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 New York,
without giving effect to the choice of law rules thereof. The parties agree that
all disputes between any of them arising out of, connected with, related to, or
incidental to the relationship established between them in connection with this
Agreement, and whether arising in law or in equity or otherwise, shall be
resolved by the federal or state courts located in New York, New York. Nothing
herein shall affect the right of any party to serve process in any other manner
permitted by law or to commence legal proceedings or otherwise proceed against
the other in any other jurisdiction. In addition, each of the parties hereto
consents to submit to the personal jurisdiction of any federal or state court
located in the state of New York in the event that any dispute arises out of
this Agreement. The parties, for themselves and their respective affiliates,
hereby irrevocably waive all right to a trial by jury in any action, proceeding
or counterclaim (whether based on contract, tort or otherwise) arising out of or
relating to the actions of the parties or their respective affiliates pursuant
to this Agreement in the negotiation, administration, performance or enforcement
thereof.
4.7 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.
4.8 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.
4.9 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 hereto.
4.10 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 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
7
Agreement shall remain operative and in full force and effect.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed on its behalf as of the date first hereinabove set
forth.
COMPANY:
Address: AMERICAN REAL ESTATE INVESTMENT
Plymouth Meeting Executive Campus CORPORATION
000 X. Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
By: /s/Xxxxxxx X. Butte
--------------------------------
Name: Xxxxxxx X. Butte
Title:Vice President
HOLDERS:
Address: CRA REAL ESTATE SECURITIES, L.P.,
000 Xxxxxx Xxxxxxx Xxxx, Xxxxx 000 as attorney-in-fact for
Xxxxxx, XX 00000 each of its clients set forth
in Schedule A
By: CRA Real Estate Securities, Inc.,
its general partner
By: /s/ X. Xxxxxx Xxxxxxxx
--------------------------------
Name: X. Xxxxxx Xxxxxxxx
Title: President
8
SCHEDULE A
Number of Shares
Name and Address of Common Stock
---------------- ----------------
Bellsouth Corp. 34,051
IBM Retirement Fund 20,000
PA State Employees Retirement System 23,000
TRW Investment Mgt 25,000
c/o CRA Real Estate Securities
000 Xxxxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
