Exhibit 99.1
Execution Copy
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of November 21, 2002 between Charter Municipal Mortgage
Acceptance Company, a Delaware business trust (the "Company") and Meridian
Investments, Inc., a Massachusetts corporation (the "Placement Agent").
This Agreement is made pursuant to the Agency Agreement, dated
November 20, 2002 (the "Agency Agreement"), between the Company, as issuer of
the Series A Convertible Community Reinvestment Act Preferred Shares Convertible
into Common Shares (the "CRA Preferred Shares"), and the Placement Agent, which
provides for, among other things, the sale by the Company directly to investors
whose offer to purchase CRA Preferred Shares has been solicited by the Placement
Agent as an agent of the Company. In order to induce the Placement Agent to
enter into the Agency Agreement, the Company has agreed to provide the
registration rights set forth in this Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
"Advice" shall have the meaning set forth in the last paragraph of
Section 3 hereof.
"Affiliate" has the same meaning as given to that term in Rule 405 under
the Securities Act or any successor rule thereunder.
"Agency Agreement" shall have the meaning set forth in the preamble to
this Agreement.
"Business Day" means any day other than a Saturday, a Sunday, or a day
on which banking institutions in The City of New York are authorized or required
by law, executive order or regulation to remain closed.
"Closing Time" shall mean the Closing Time, as defined in the Agency
Agreement.
"Common Shares" means the shares of beneficial interest of the Company.
"Company" shall have the meaning set forth in the preamble to this
Agreement and also includes the Company's successors and assigns.
"CRA Preferred Shares" shall have the meaning set forth in the preamble
to this Agreement.
"Effectiveness Period" shall have the meaning set forth in Section 2(a)
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Holders" shall mean holders of Registrable Securities.
"Inspectors" shall have the meaning set forth in Section 3(l) hereof.
"Issue Date" shall mean November 21, 2002, the date of original issuance
of the CRA Preferred Shares.
"Majority Holders" shall mean the Holders of a majority in interest of
the outstanding Registrable Shares.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, limited liability corporation, or a government or
agency or political subdivision thereof.
"Placement Agent" shall have the meaning set forth in the preamble to
this Agreement.
"Prospectus" shall mean the prospectus included in a Shelf Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements thereto, including post-effective amendments,
and, in each case, including all documents incorporated by reference therein.
"Records" shall have the meaning set forth in Section 3(l) hereof.
"Registrable Securities" shall mean the Securities; provided, however,
that Securities shall cease to be Registrable Securities when the earlier of the
following occurs (i) a Shelf Registration Statement with respect to the
Securities for the registration and resale thereof shall have been declared
effective under the Securities Act and such Securities shall have been disposed
of pursuant to such Shelf Registration Statement, (ii) the CRA Preferred Shares
or the related Securities shall have been sold to the public pursuant to Rule
144(k) (or any similar provision then in force, but not Rule 144A) under the
Securities Act or the Securities are eligible to be sold without restriction as
contemplated by Rule 144(k) or (iii) the CRA Preferred Shares or the related
Securities shall have ceased to be outstanding.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC or National Association of Securities Dealers,
Inc. (the "NASD") registration and filing fees, (ii) all fees and expenses
incurred in connection with compliance with state securities or blue sky laws
(including reasonable fees and disbursements of one counsel for all underwriters
or Holders as a group in connection with blue sky qualification of any of the
Registrable Securities) and compliance with the rules of the NASD, (iii) all
expenses incurred in connection with preparing, word processing, printing and
distributing any Shelf Registration Statement, any Prospectus and any amendments
or supplements thereto, and in preparing or assisting in preparing any other
documents relating to the performance of and compliance with this Agreement,
(iv) any rating agency fees, (v) the fees and disbursements of counsel for the
Company and of the independent certified public accountants of the Company,
including the expenses of any "cold comfort" letters required by or incident to
the performance of and compliance with this Agreement, and (vi) the reasonable
fees and expenses of any special experts retained by the Company in connection
with the Shelf Registration Statement.
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"Rule 144(k) Period" shall mean the period of two years (or such shorter
period as may hereafter be referred to in Rule 144(k) under the Securities Act
(or similar successor rule)) from the later of the date the CRA Preferred Shares
were acquired from the Company or from an Affiliate of the Company.
"SEC" shall mean the Securities and Exchange Commission.
"Securities" shall mean the Common Shares into which the CRA Preferred
Shares have been converted or are convertible, as the case may be.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(a) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company filed pursuant to the provisions of Section 2(a) hereof
which covers all of the Registrable Securities on an appropriate form under Rule
415 under the Securities Act, or any similar rule that may be adopted by the
SEC, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case, including the Prospectus
contained therein, all exhibits thereto and all documents incorporated by
reference therein.
2. Registration Under the Securities Act.
(a) Shelf Registration. The Company shall file or cause to be
filed, within 180 days after November 21, 2002, a Shelf Registration Statement
providing for the registration of, and the sale on a continuous or delayed basis
by the Holders of, all of the Registrable Securities and shall use its
commercially reasonable efforts to have such Shelf Registration Statement
declared effective by the SEC as soon as practicable after filing; provided,
however the Company may delay the effectiveness of the Shelf Registration
Statement if the Company reasonably believes it is in the Company's best
interest to do so due to the occurrence of a development involving the Company
or any of its Affiliates which is material but which has not yet been publicly
disclosed. The Company will not permit any securities other than the Registrable
Securities to be included in the Shelf Registration Statement. No Holder of
Registrable Securities shall be entitled to include any of its Registrable
Securities in any Shelf Registration pursuant to this Agreement unless and until
such Holder agrees in writing to be bound by all of the provisions of this
Agreement applicable to such Holder and furnishes to the Company in writing,
within 15 days after receipt of a request therefor, such information as the
Company may, after conferring with counsel with regard to information relating
to Holders that would be required by the SEC to be included in such Shelf
Registration Statement or Prospectus included therein, reasonably request for
inclusion in any Shelf Registration Statement or Prospectus included therein.
Each Holder as to which any Shelf Registration is being effected agrees to
furnish to the Company all information with respect to such Holder necessary to
make the information previously furnished to the Company by such Holder not
materially misleading.
The Company agrees to use its commercially reasonable efforts to
keep the Shelf Registration Statement continuously effective and the Prospectus
usable for resales during the Rule 144(k) Period (subject to extension pursuant
to the last paragraph of Section 3 hereof), or
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for such shorter period which will terminate when all of the Securities covered
by the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement or otherwise cease to be Registrable Securities (the
"Effectiveness Period"). The Company will, in the event a Shelf Registration
Statement is declared effective, provide to each Holder a reasonable number of
copies of the Prospectus which is a part of the Shelf Registration Statement,
notify each such Holder when the Shelf Registration Statement has become
effective and take such other actions as are required to permit unrestricted
resales of the Registrable Securities. The Company further agrees to supplement
or amend the Shelf Registration Statement if and as required by the rules,
regulations or instructions applicable to the registration form used by the
Company for such Shelf Registration Statement or by the Securities Act or by any
other rules and regulations thereunder for shelf registrations, and the Company
agrees to furnish to the Holders of Registrable Securities copies of any such
supplement or amendment promptly after its being used or filed with the SEC.
(b) Expenses. The Company, as issuer of the Securities, shall pay
all Registration Expenses in connection with any Shelf Registration Statement
filed pursuant to Section 2(a) hereof. Each Holder shall pay all expenses of its
counsel, underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Registrable Securities
pursuant to the Shelf Registration Statement.
(c) Effective Shelf Registration Statement. A Shelf Registration
Statement will not be deemed to have become effective unless it has been
declared effective by the SEC; provided, however, that if, after it has been
declared effective, the offering of Registrable Securities pursuant to such
Shelf Registration Statement is interfered with by any stop order, injunction or
other order or requirement of the SEC or any other governmental agency or court,
such Shelf Registration Statement will be deemed not to have been effective
during the period of such interference.
(d) Listing. The Company agrees that the Securities covered by
the Shelf Registration Statement will, upon effectiveness of the Shelf
Registration Statement, be listed on the American Stock Exchange.
(e) Specific Enforcement. Without limiting the remedies available
to the Holders, the Company acknowledges that any failure by it to comply with
its obligations under Section 2(a) hereof may result in material irreparable
injury to the Holders for which there is no adequate remedy at law, that it
would not be possible to measure damages for such injuries precisely and that,
in the event of any such failure, any Holder may obtain such relief as may be
required to specifically enforce the Company's obligations under Section 2(a)
hereof.
3. Registration Procedures. In connection with the obligations of
the Company with respect to the Shelf Registration Statement pursuant to Section
2(a) hereof, the Company shall use its commercially reasonable efforts to:
(a) prepare and file with the SEC a Shelf Registration Statement
as prescribed by Section 2(a) hereof within the relevant time period
specified in Section 2(a) hereof on the appropriate form under the
Securities Act, which form shall (i) be selected by the Company, (ii) be
available for the sale of the Registrable Securities by the selling
Holders
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thereof, and (iii) comply as to form in all material respects with the
requirements of the applicable form and include all financial statements
required by the SEC to be filed therewith; cause such Shelf Registration
Statement to become effective and remain effective and the Prospectus
usable for resales in accordance with Section 2 hereof; provided,
however, that, before filing any Shelf Registration -------- -------
Statement or the use of the Prospectus or any amendments or supplements
thereto, the Company shall provide the Holders of the Securities covered
by such Shelf Registration Statement copies of the Registration
Statement and any amendments or supplements thereto (including copies of
any documents to be incorporated by reference therein and all exhibits
thereto) proposed to be filed or used; at least 10 days prior to such
filing or use;
(b) prepare and file with the SEC such amendments and
post-effective amendments to the Shelf Registration Statement as may be
necessary to keep such Shelf Registration Statement effective for the
Effectiveness Period; and cause each Prospectus to be supplemented, if
so determined by the Company or requested by the SEC, by any required
prospectus supplement and as so supplemented to be filed pursuant to
Rule 424 (or any similar provision then in force) under the Securities
Act, and comply with the provisions of the Securities Act, the Exchange
Act and the rules and regulations promulgated thereunder applicable to
it with respect to the disposition of all Securities covered by a Shelf
Registration Statement during the Effectiveness Period in accordance
with the intended method or methods of distribution by the selling
Holders thereof described in this Agreement;
(c) notify each Holder of Registrable Securities included in the
Shelf Registration Statement, at least three Business Days prior to
filing, that a shelf registration statement with respect to the
Registrable Securities is being filed and advising such Holder that the
distribution of Registrable Securities will be made in accordance with
the method selected by the Majority Holders; furnish to each Holder of
Securities covered by the Shelf Registration Statement and to each
underwriter of an underwritten offering of Registrable Securities, if
any, without charge, as many copies of each Prospectus, including each
preliminary prospectus, and any amendment or supplement thereto, and
such other documents as such Holder or underwriter may reasonably
request, in order to facilitate the public sale or other disposition of
the Registrable Securities; and consent to the use of the Prospectus or
any amendment or supplement thereto by each of the selling Holders of
Registrable Securities included in the Shelf Registration Statement in
connection with the offering and sale of the Registrable Securities
covered by the Prospectus or any amendment or supplement thereto;
(d) register or qualify the Registrable Securities under all
applicable state securities or "blue sky" laws of such jurisdictions by
the time the Shelf Registration Statement is declared effective by the
SEC as any Holder of Securities covered by a Shelf Registration
Statement shall reasonably request in writing in advance of such date of
effectiveness, and do any and all other acts and things which may be
reasonably necessary or advisable to enable such Holder to consummate
the disposition in each such jurisdiction of such Registrable Securities
owned by such Holder; provided, however, that the Company shall not be
required to (i) qualify as a foreign corporation or as a
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dealer in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(d), (ii) file any general
consent to service of process in any jurisdiction where it would not
otherwise be subject to such service of process, (iii) subject itself to
taxation in any such jurisdiction if it is not then so subject, or (iv)
register in any state requiring, as a condition to registration, escrow
or surrender of any Company securities held by any securityholder other
than the Holders;
(e) promptly notify each Holder of Registrable Securities and
their counsel and promptly confirm such notice in writing (i) when a
Shelf Registration Statement has become effective and when any
post-effective amendments thereto become effective, (ii) of any request
by the SEC or any state securities authority for amendments or
supplements to a Shelf Registration Statement or Prospectus or for
additional information after the Shelf Registration Statement has become
effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a Shelf
Registration Statement or the qualification of the Registrable
Securities in any jurisdiction described in Section 3(d) hereof or the
initiation of any proceedings for that purpose, (iv) if, between the
effective date of a Shelf Registration Statement and the closing of any
sale of Registrable Securities covered thereby, the representations and
warranties of the Company contained in any purchase agreement, agency
agreement, securities sales agreement or other similar agreement cease
to be true and correct in all material respects, (v) of the happening of
any event or the failure of any event to occur or the discovery of any
facts, during the Effectiveness Period, which makes any statement made
in a Shelf Registration Statement or the related Prospectus untrue in
any material respect or which causes such Shelf Registration Statement
or Prospectus to omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, and (vi) of the reasonable
determination of the Company that a post-effective amendment to the
Shelf Registration Statement would be appropriate;
(f) obtain the withdrawal of any order suspending the
effectiveness of the Shelf Registration Statement at the earliest
possible moment;
(g) furnish to each Holder of Registrable Securities covered by
the Shelf Registration Statement, without charge, at least one conformed
copy of the Shelf Registration Statement relating to such Shelf
Registration and any post-effective amendment thereto (without documents
incorporated therein by reference or exhibits thereto, unless
requested);
(h) cooperate with the selling Holders of Registrable Securities
to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any
restrictive legends and registered in such names as the selling Holders
or the underwriters may reasonably request at least two Business Days
prior to the closing of any sale of Registrable Securities pursuant to
the Shelf Registration Statement;
(i) promptly after the occurrence of any event specified in
Section 3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, prepare a
supplement or amendment to the Shelf
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Registration Statement or the Prospectus or any document incorporated
therein by reference or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable Securities,
such Prospectus will not include any untrue statement of a material fact
or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; and shall notify each Holder to suspend use of the
Prospectus as promptly as practicable after the occurrence of such an
event, and each Holder hereby agrees to suspend use of the Prospectus
until the Company has amended or supplemented the Prospectus to correct
such misstatement or omission;
(j) a reasonable time prior to the filing of any document which
is to be incorporated by reference into the Shelf Registration Statement
or the Prospectus, provide a reasonable number of copies of such
document to the Holders and make such of the representatives of the
Company as shall be reasonably requested by the Holders of Registrable
Securities available for discussion of such document;
(k) if requested by Holders of at least 50% of the aggregate
offering price of the Registrable Securities covered thereby: (i) make
such representations and warranties to Holders of such Registrable
Securities and the underwriters (if any), with respect to the business
of the Company and its subsidiaries as then conducted and with respect
to the Shelf Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference therein, in each
case, as are customarily made by issuers to underwriters in underwritten
offerings, and confirm the same if and when requested; (ii) furnish
customary closing documentation in form and substance reasonably
requested and reasonably satisfactory to the managing underwriters (if
any) and the Holders of a majority in amount of the Registrable
Securities being sold; (iii) obtain "cold comfort" letters and updates
thereof in form and substance reasonably satisfactory to the managing
underwriters from the independent certified public accountants of the
Company (and, if necessary, any other independent certified public
accountants of any business acquired by the Company for which financial
statements and financial data are, or are required to be, included in
the Registration Statement), addressed to each of the underwriters, such
letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
underwritten offerings and such other matters as reasonably requested by
such underwriters in accordance with Statement on Auditing Standards No.
72; (iv) if an underwriting agreement is entered into, the same shall
contain indemnification provisions and procedures no less favorable than
those set forth in Section 4 hereof (or such other provisions and
procedures acceptable to Holders of a majority in amount of the
Registrable Securities being sold and the managing underwriters)
customary for such agreements with respect to all parties to be
indemnified pursuant to said Section (including, without limitation,
such underwriters and selling Holders); and in the case of an
underwritten registration, the above requirements shall be satisfied at
each closing under the related underwriting agreement or as and to the
extent required thereunder;
(l) make reasonably available for inspection by any selling
Holder of Registrable Securities who certifies to the Company that it
has a current intention to sell Registrable Securities pursuant to the
Shelf Registration, any underwriter participating in
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any such disposition of Registrable Securities, if any, and any
attorney, accountant or other agent retained by any such selling Holder
or underwriter (collectively, the "Inspectors"), at the offices where
normally kept, during the Company's normal business hours, all financial
and other records, pertinent organizational and operational documents
and properties of the Company and its subsidiaries (collectively, the
"Records") as shall be reasonably necessary to enable them to exercise
any applicable due diligence responsibilities, and cause the officers,
trustees, employees, agents and other representatives of the Company and
its subsidiaries to supply all relevant information in each case
reasonably requested by any such Inspector in connection with such Shelf
Registration; records and information which the Company notifies the
Inspectors are confidential shall not be disclosed to any Inspector
except where (i) the disclosure of such Records or information is
necessary to avoid or correct a material misstatement or omission in the
Shelf Registration Statement, (ii) the release of such Records or
information is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction or is necessary in connection with any
action, suit or proceeding or (iii) such Records or information
previously has been made generally available to the public; each
Inspector will be required to agree in writing that Records and
information obtained by it as a result of such inspections shall be
deemed confidential and shall not be used by it as the basis for any
market transactions in the securities of the Company unless and until
such is made generally available to the public through no fault of such
Inspector; and each Inspector will be required to further agree in
writing that it will, upon learning that disclosure of such Records or
information is sought in a court of competent jurisdiction, or in
connection with any action, suit or proceeding, give notice to the
Company and allow the Company at its expense to undertake appropriate
action to prevent disclosure of the Records and information deemed
confidential;
(m) comply with all applicable rules and regulations of the SEC
so long as any provision of this Agreement shall be applicable and make
generally available to its securityholders earning statements satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar rule promulgated under the Securities Act) no
later than 45 days after the end of any twelve-month period (or 90 days
after the end of any twelve-month period if such period is a fiscal
year) commencing on the first day of the first fiscal quarter of the
Company after the effective date of a Shelf Registration Statement,
which statements shall cover said twelve-month periods, provided that
the obligations under this Section 3(m) shall be satisfied by the timely
filing of quarterly and annual reports on Forms 10-Q and 10-K under the
Exchange Act;
(n) cooperate with each seller of Securities covered by the Shelf
Registration Statement and each underwriter, if any, participating in
the disposition of such Registrable Securities and their respective
counsel in connection with any filings required to be made with the
NASD;
(o) take all other steps necessary to effect the registration,
and the sale on a continuous or delayed basis, of the Registrable
Securities covered by the Shelf Registration Statement contemplated
hereby; and
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(p) the Company may require each seller of Registrable Securities
as to which any registration is being effected to furnish to it such
information regarding such seller as may be required by the staff of the
SEC to be included in the Shelf Registration Statement; the Company may
exclude from such registration the Registrable Securities of any seller
who unreasonably fails to furnish such information within a reasonable
time after receiving such request; and the Company shall have no
obligation to register under the Securities Act the Registrable
Securities of a seller who so fails to furnish such information.
Each Holder agrees that, upon receipt of any notice from the
Company of the occurrence of any event specified in Section 3(e)(ii), 3(e)(iii),
3(e)(v) or 3(e)(vi) hereof, such Holder will forthwith discontinue disposition
of Registrable Securities pursuant to the Shelf Registration Statement until
such Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(i) hereof or until it is advised in writing (the
"Advice") by the Company that the use of the Prospectus in such Holder's
possession may be resumed, and, if so directed by the Company, such Holder will
deliver to the Company (at the Company's expense) all copies in such Holder's
possession, other than permanent file copies then in such Holder's possession,
of the Prospectus covering such Registrable Securities current at the time of
receipt of such notice. If the Company shall give any such notice to suspend the
disposition of Registrable Securities pursuant to the Shelf Registration
Statement, the Company shall use its commercially reasonable efforts to file and
have declared effective (if an amendment) as soon as practicable after the
resolution of the related matters an amendment or supplement to the Shelf
Registration Statement and the Prospectus and shall extend the period during
which such Shelf Registration Statement is required to be maintained effective
and the Prospectus usable for resales pursuant to this Agreement by the number
of days in the period from and including the date of the giving of such notice
to and including the date when the Company shall have made available to the
Holders (x) copies of the supplemented or amended Prospectus necessary to resume
such dispositions or (y) the Advice.
4. Indemnification and Contribution. (a) The Company hereby
agrees to indemnify and hold harmless the Placement Agent, each Holder, each
underwriter who participates in an offering of the Registrable Securities, each
Person, if any, who controls any of such parties within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act and each of their
respective directors, officers, employees and agents, as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in a Shelf
Registration Statement (or amendment thereto) or the Prospectus (or any
amendment or supplement thereto), or arises out of or is based upon any
omission or alleged omission to state a material fact required to be
stated in a Shelf Registration Statement (or amendment thereto) or the
Prospectus (or any amendment or supplement thereto) or necessary to make
the statements made therein not misleading, or arises out of or is based
upon any omission or alleged omission to state a material fact in
connection with such information required to be stated in a Shelf
Registration Statement (or amendment thereto) or the Prospectus (or any
amendment or supplement thereto) or necessary to make such information
not misleading;
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(ii) 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 any 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, provided that (subject to
Section 4(d) hereof) such settlement is effected with the prior written
consent of the Company; and
(iii) against any and all expenses whatsoever, as incurred
(including the reasonable fees and disbursements of counsel chosen by
such Holder), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such
expense is not paid under subparagraph (i) or (ii) of this Section 4(a);
provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished in writing to the Company by such
Holder or underwriter for use in the Shelf Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement thereto).
(b) Each Holder or underwriter agree, severally and not jointly,
to indemnify and hold harmless the Company, its trustees and officers (including
each officer of the Company who signed the Shelf 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 against any and all
loss, liability, claim, damage and expense whatsoever described in the indemnity
contained in Section 4(a) hereof, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Shelf Registration Statement (or any amendment thereto) or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Holder expressly for use in
such Shelf Registration Statement (or any amendment thereto) or such Prospectus
(or any amendment or supplement thereto); provided, however, that no Holder
shall be liable for any claims hereunder in excess of the amount of net proceeds
received by such Holder from the sale of its Registrable Securities.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have otherwise than on account of this indemnity
agreement unless the failure to provide such notice materially prejudices the
defense by the indemnifying party against such claim. In the case of parties
indemnified pursuant to Section 4(a) or (b) above, counsel to the indemnified
parties shall be selected by such parties. An indemnifying party may participate
at its own expense in the defense of such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent of the
indemnified parties) also be counsel to the indemnified parties. In no event
shall the
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indemnifying parties be liable for the fees and expenses of more than
one counsel (in addition to local counsel), separate from their own
counsel, for all indemnified parties in connection with any one action
or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 4 (whether or not the
indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional
written release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have validly
requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by Section 4(a)(ii) effected without
its written consent if (i) such settlement is entered into more than 45 days
after receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement set forth in this Section 4 is
for any reason held to be unenforceable by an indemnified party although
applicable in accordance with its terms, the Company, on the one hand, and the
Holders, on the other hand, 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 Holders, as incurred;
provided, however, that no Person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution
from any Person that was not guilty of such fraudulent misrepresentation. As
between the Company, on the one hand, and the Holders, on the other hand, such
parties shall contribute to such aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by such indemnity agreement in such
proportion as shall be appropriate to reflect the relative fault of the Company,
on the one hand, and the Holders, on the other hand, with respect to the
statements or omissions which resulted in such loss, liability, claim, damage or
expense, or action in respect thereof, as well as any other relevant equitable
considerations. The relative fault of the Company, on the one hand, and of the
Holders, on the other hand, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, on the one hand, or by or on behalf of the Holders, on
the other, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and the Holders of the Registrable Securities agree that it would not be just
and equitable if contribution pursuant to this Section 4 were to be determined
by pro rata allocation or by any other method of allocation that does not take
into account the relevant equitable considerations. For purposes of this
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Section 4, each Affiliate of a Holder, and each director, officer and employee
and Person, if any, who controls a Holder or such Affiliate within the meaning
of Section 15 of the Securities Act shall have the same rights to contribution
as such Holder, and each trustee and officer of the Company 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 shall have the same rights to contribution
as the Company.
5. Participation in an Underwritten Registration. No Holder may
participate in an underwritten registration hereunder unless such Holder (a)
agrees to sell such Holder's Registrable Securities on the basis provided in the
underwriting arrangement approved by the Persons entitled hereunder to approve
such arrangements and (b) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up letters and
other documents reasonably required under the terms of such underwriting
arrangements.
6. Selection of Underwriters. The Holders of Registrable
Securities covered by the Shelf Registration Statement who desire to do so may
sell the Securities covered by such Shelf Registration in an underwritten
offering, subject to the provisions of Section 3(l) hereof. In any such
underwritten offering, the underwriter or underwriters and manager or managers
that will administer the offering will be selected by the Holders of a majority
in amount of the Registrable Securities included in such offering; provided,
however, that such underwriters and managers must be reasonably satisfactory to
the Company.
7. Miscellaneous.
(a) Rule 144. For so long as the Company is subject to the
reporting requirements of Section 13 or 15 of the Exchange Act and any CRA
Preferred Shares or Registrable Securities remain outstanding, the Company will
file the reports required to be filed by it under the Securities Act and Section
13(a) or 15(d) of the Exchange Act and the rules and regulations adopted by the
SEC thereunder; provided, however, that if the Company ceases to be so required
to file such reports, it will (a) make publicly available such information as is
necessary to permit sales of its securities pursuant to Rule 144 under the
Securities Act and (b) take such further action that is reasonable in the
circumstances, in each case, to the extent required from time to time for the
conversion of the CRA Preferred Shares or the sale of the Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144 under the Securities Act, as such rule may be
amended from time to time, or any similar rules or regulations hereafter adopted
by the SEC. Upon the request of any Holder of Registrable Securities, the
Company will deliver to such Holder a written statement as to whether it has
complied with such requirements.
(b) No Inconsistent Agreements. The Company has not entered into,
and will not enter into, any agreement which is inconsistent with the rights
granted to the Holders of Registrable Securities in this Agreement or otherwise
conflicts with the provisions hereof. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Company's other issued and outstanding
securities under any such agreements.
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(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of
Majority Holders affected by such amendment, modification, supplement, waiver or
departure; provided that no amendment, modification or supplement or waiver or
consent to the departure with respect to the provisions of Section 4 hereof
shall be effective as against any Holder of Registrable Securities unless
consented to in writing by such Holder of Registrable Securities.
Notwithstanding the foregoing sentence, (i) this Agreement may be amended,
without the consent of any Holder of Registrable Securities, by written
agreement signed by the Company and the Placement Agent, to cure any ambiguity,
correct or supplement any provision of this Agreement that may be inconsistent
with any other provision of this Agreement or to make any other provisions with
respect to matters or questions arising under this Agreement which shall not be
inconsistent with other provisions of this Agreement, (ii) this Agreement may be
amended, modified or supplemented, and waivers and consents to departures from
the provisions hereof may be given, by written agreement signed by the Company
and the Placement Agent to the extent that any such amendment, modification,
supplement, waiver or consent is, in their reasonable judgment, necessary or
appropriate to comply with applicable law (including any interpretation of the
Staff of the SEC) or any change therein and (iii) to the extent any provision of
this Agreement relates to the Placement Agent, such provision may be amended,
modified or supplemented, and waivers or consents to departures from such
provisions may be given, by written agreement signed by the Placement Agent and
the Company.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of this
Section 7(d), which address initially is, with respect to the Placement Agent,
the address set forth in the Agency Agreement; and (ii) if to the Company,
initially at the Company's address set forth in the Agency Agreement and
thereafter at such other address, notice of which is given in accordance with
the provisions of this Section 7(d).
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied; and
on the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of the
Placement Agent, including, without limitation and without the need for an
express assignment, subsequent Holders purchasing CRA Preferred Shares directly
from the Company through the Placement Agent. If any 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 such Registrable Securities,
such Person shall be conclusively deemed to have agreed to be bound by and to
perform all of the terms and provisions of this Agreement and such Person shall
be entitled to receive the benefits hereof.
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(f) Third Party Beneficiaries. The registered holders of the CRA
Preferred Shares and the Holders shall be third party beneficiaries of the
agreements made hereunder among the Company and the Placement Agent, and the
Placement Agent shall have the right to enforce such agreements directly to the
extent it deems such enforcement necessary or advisable to protect their rights
or the rights of such registered holders or Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN
MADE IN THE STATE OF NEW YORK. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS. EACH OF THE
PARTIES HERETO AGREES TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF
THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR ANY OF THE MATTERS CONTEMPLATED HEREBY, IRREVOCABLY WAIVES ANY
DEFENSE OF LACK OF PERSONAL JURISDICTION AND IRREVOCABLY AGREES THAT ALL CLAIMS
IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY
SUCH COURT. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(k) Securities Held by the Company or its Affiliates. Whenever
the consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the Company or
any Affiliates shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
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IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
Very truly yours,
CHARTER MUNICIPAL MORTGAGE
ACCEPTANCE COMPANY
By:
--------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first
above written:
MERIDIAN INVESTMENTS, INC.
By:
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Name:
Title:
