REGISTRATION RIGHTS AGREEMENT
Exhibit
4.3
EXECUTION
COPY
THIS
REGISTRATION RIGHTS AGREEMENT (the “Agreement”
)
is made
and entered into as of August 2, 2006 among XXXXXXXXXX REALTY INVESTORS, a
Texas
real estate investment trust (the “Company”)
and the
several initial purchasers (the “Initial
Purchasers”)
named
in Schedule A to the Purchase Agreement (as defined below), for whom Citigroup
Global Markets Inc., is acting as representative (the “Representative”).
This
Agreement is made pursuant to the Purchase Agreement, dated July 28, 2006 (the
“Purchase
Agreement”),
between the Company, as the issuer of the 3.95% Convertible Senior Notes Due
2026 (the “Notes”)
and the
Initial Purchasers, which provides for, among other things, the sale of the
Notes by the Company to the Initial Purchasers.
In
order
to induce the Initial Purchasers to enter into the Purchase Agreement, the
Company has agreed to provide to the Initial Purchasers and their respective
direct and indirect transferees the registration rights set forth in this
Agreement.
In
consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
Capitalized
terms used herein without definition shall have the respective meanings ascribed
to them in the Purchase Agreement. As used in this Agreement, the following
capitalized defined 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.
“Automatic
Shelf Registration Statement”
shall
mean a Registration Statement filed by a Well-Known Seasoned Issuer which shall
become effective upon filing thereof pursuant to General Instruction I.D. of
Form S-3.
“Business
Day”
means
any day other than a Saturday, a Sunday, or a day on which banking institutions
in New York, New York are authorized or required by law or executive order
to
remain closed.
“Common
Shares”
means
the common shares of beneficial interest of the Company, par value $0.03 per
share, initially issuable upon conversion of the Notes.
“Company”
shall
have the meaning set forth in the preamble to this Agreement and also includes
the Company’s successors and permitted assigns.
“Closing
Time”
shall
mean the Closing Time as defined in the Purchase Agreement.
“Effective
Date”
shall
mean the date the initial Shelf Registration Statement becomes effective or,
in
the case of designation of an Automatic Shelf Registration Statement as the
Shelf Registration Statement, the date a Prospectus is first made available
thereunder for use by the Holders.
“Effectiveness
Deadline”
shall
mean (i) for purposes of Section 2(a)(i) hereof, the 180th day following the
Issue Date, (ii) for
purposes of the filing of any post-effective amendment pursuant to Section
2(a)(iii) hereof, the 30th day after the obligation to make such filing
arises,
(iii)
for purposes of the filing of any Shelf Registration Statement pursuant to
Section 2(a)(iii) hereof, the 60th day after the obligation to make such filing
arises, and (iv) for purposes of any filing made pursuant to Section 2(a)(iv)
hereof, the tenth Business Day after the obligation to make such filing
arises.
“Effectiveness
Period”
shall
have the meaning set forth in Section 2(a)(iv) hereof.
“Exchange
Act”
shall
mean the Securities Exchange Act of 1934, as amended from time to
time.
“Filing
Deadline”
shall
mean (i) for purposes of Section 2(a)(i) hereof, the 90th day following the
Issue Date, (ii) for purposes of Section 2(a)(iii) hereof, the tenth Business
Day after the date of receipt by the Company of the information specified
therein (or, if a Suspension Period is then in effect or initiated within five
Business Days following the date of receipt of such information, the tenth
Business Day following the end of such Suspension Period), and (iii) for
purposes of Section 2(a)(iv) hereof, the tenth Business Day after the cessation
of effectiveness of any Shelf Registration Statement (or, if a Suspension Period
is then in effect or initiated within five Business Days following the date
of
receipt of such information, the tenth Business Day following the end of such
Suspension Period).
“Holder”
shall
mean each Initial Purchaser, for so long as such Initial Purchaser owns any
Registrable Securities, and each of such Initial Purchaser’s respective
successors, assigns and direct and indirect transferees who become registered
owners of Registrable Securities.
“Indenture”
shall
mean the Indenture relating to the Securities, dated as of May 1, 1995,
between the Company and the Trustee, pursuant to which the Notes are being
issued, and in accordance with which the Common Shares may be issued, as the
same may be amended, supplemented, waived or otherwise modified from time to
time in accordance with the terms thereof.
“Initial
Purchasers”
shall
have the meaning set forth in the preamble to this Agreement.
“Inspectors”
shall
have the meaning set forth in Section 3(m) hereof.
“Issue
Date”
shall
mean August 2, 2006, the date of original issuance of the Notes.
“Liquidated
Damages”
shall
have the meaning set forth in Section 2(e) hereof.
“Majority
Holders”
shall
mean the Holders collectively holding a majority of the aggregate principal
amount of outstanding Notes or the number of outstanding Common Shares, as
the
context requires.
“Notes”
shall
have the meaning set forth in the preamble to this Agreement.
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“Person”
shall
mean an individual, partnership, corporation, trust or unincorporated
organization, limited liability corporation, or a government or agency or
political subdivision thereof.
“Prospectus”
shall
mean the prospectus included in a Shelf Registration Statement, including any
preliminary prospectus, any issuer “free writing prospectus,” as such term is
defined in Rule 433 under the Securities Act, 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 to a prospectus, including post-effective amendments,
and, in each case, including all documents incorporated by reference
therein.
“Purchase
Agreement”
shall
have the meaning set forth in the preamble to this Agreement.
“Questionnaire”
shall
have the meaning set forth in Section 2(a)(ii) hereof.
“Records”
shall
have the meaning set forth in Section 3(m) hereof.
“Registrable
Securities”
shall
mean the Notes and the Common Shares; provided,
however, that
(i) the Notes shall cease to be Registrable Securities upon the earlier of
(1) a Shelf Registration Statement with respect thereto for the resale of
the Notes having been declared effective under the Securities Act and the Notes
having been disposed of pursuant to such Shelf Registration Statement,
(2) the Notes having become eligible to be sold without restriction as
contemplated by Rule 144(k) under the Securities Act by a Person who is not
an Affiliate of the Company, or (3) the Notes having ceased to be
outstanding, and (ii) the Common Shares shall cease to be Registrable
Securities upon the earlier of (1) a Shelf Registration Statement with
respect to such Common Shares for the resale thereof having been declared
effective under the Securities Act and such Common Shares having been disposed
of pursuant to such Shelf Registration Statement, (2) such Common Shares
having become eligible to be sold without restriction as contemplated by Rule
144(k) under the Securities Act by a Person who is not an Affiliate of the
Company, or (3) such Common Shares having 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, including, if applicable, the fees and expenses
of
any “qualified independent underwriter” (and its counsel) that is required to be
retained by any Holder of Registrable Securities in accordance with the rules
and regulations of the NASD, (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
of any Persons in preparing or assisting in 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,
printing and distributing any underwriting agreements, securities sales
agreements and other documents relating to the performance of and compliance
with this Agreement, (iv) all rating agency fees, (v) the fees and
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disbursements
of one 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.
“SEC”
shall
mean the Securities and Exchange Commission.
“Securities”
shall
mean the Notes and the Common Shares.
“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 pursuant to the provisions
of Section 2(a) hereof which covers all of the Registrable Securities on
Form S-3 or, if not then available to the Company, on another 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.
“Suspension
Period”
shall
have the meaning set forth in Section 2(a)(iv).
“Trustee”
shall
mean the trustee with respect to the Securities under the
Indenture.
“Well−Known
Seasoned Issuer” shall
have the meaning set forth in Rule 405 under the Securities Act.
2. Registration
Under the Securities Act.
(a) Shelf
Registration.
(i) The
Company shall file or cause to be filed (or otherwise designate an existing
Automatic Shelf Registration Statement previously filed with the SEC as) a
Shelf
Registration Statement providing for the sale by the Holders of all of the
Registrable Securities, as promptly as practicable but in any event on or prior
to the Filing Deadline. If the Shelf Registration Statement is not an Automatic
Shelf Registration Statement, the Company shall use its reasonable best efforts
to have such Shelf Registration Statement declared effective by the SEC as
promptly as practicable after filing thereof, but in any event on or prior
to
the Effectiveness Deadline. If
the
Shelf Registration Statement is an Automatic Shelf Registration Statement,
the
Company shall use its reasonable best efforts to prepare and file a supplement
to the Prospectus to cover resales of the Registrable Securities by the
Holders
as
promptly as practicable after filing thereof, but in any event on or prior
to
the Effectiveness Deadline.
(ii) Notwithstanding
any other provision hereof, no Holder of Registrable Securities shall be
entitled to include any of their Registrable Securities in any Shelf
Registration Statement pursuant to this Agreement unless and until such Holder
agrees in writing to be bound
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by
all of
the provisions of this Agreement applicable to such Holder and the Holder
furnishes to the Company a fully completed notice and questionnaire in the
form
attached as Appendix A to the Offering Memorandum (the “Questionnaire”)
and
such other information in writing as the Company may reasonably request in
writing for use in connection with the Shelf Registration Statement or
Prospectus included therein and in any application to be filed with or under
state securities laws. The Company shall issue a press release through a
reputable national newswire service of its filing (or intention to designate
an
Automatic Shelf Registration Statement as) the Shelf Registration Statement
and
of the anticipated Effective Date thereof. In order to be named as a selling
securityholder in the Prospectus at the time it is first made available for
use,
each Holder must furnish the completed Questionnaire and such other information
that the Company may reasonably request in writing, if any, to the Company
in
writing no later than the tenth Business Day prior to the anticipated Effective
Date as announced in the press release. 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.
(iii) From
and
after the Effective Date, upon receipt of a completed Questionnaire and such
other information that the Company may reasonably request in writing, if any,
the Company will use its reasonable best efforts to file as promptly as
reasonably practicable but in any event on or prior to the Filing Deadline
either (i) if then permitted by the Securities Act or the rules and regulations
thereunder (or then-current SEC interpretations thereof), a supplement to the
Prospectus naming such Holder as a selling securityholder and containing such
other information as necessary to permit such Holder to deliver the Prospectus
to purchasers of the Holder's Securities, or (ii) if it is not then permitted
under the Securities Act or the rules and regulations thereunder (or
then-current SEC interpretations thereof) to name such Holder as a selling
securityholder in a supplement to the Prospectus, a post-effective amendment
to
the Shelf Registration Statement or an additional Shelf Registration Statement
as necessary for such Holder to be named as a selling securityholder in the
Prospectus contained therein to permit such Holder to deliver the Prospectus
to
purchasers of the Holder's Securities (subject, in the case of either clause
(i)
or clause (ii), to the Company’s right to suspend use of the Shelf Registration
Statement as described in Section 2(a)(iv) hereof). If a post-effective
amendment or additional Shelf Registration Statement is required to be filed,
the Company shall use its reasonable best efforts to have such post-effective
amendment or additional Shelf Registration Statement declared effective by
the
SEC as promptly as practicable after filing thereof, but in any event on or
prior to the Effectiveness Deadline. The Company shall not be required to file
more than three supplements to the Prospectus, post-effective amendments or
additional Shelf Registration Statements in any fiscal quarter for all such
Holders.
(iv) The
Company agrees to use its reasonable best efforts to keep the Shelf Registration
Statement continuously effective and the Prospectus usable for resales until
there are no Registrable Securities outstanding (the “Effectiveness
Period”);
provided,
however,
that
for 30 days or less (whether or not consecutive) in any three-month period,
and for 90 days or less in any 12-month period, the Company shall be permitted,
by giving written notice to the Holders of Registrable Securities, to suspend
sales thereof if the Shelf Registration Statement is no longer effective or
usable for
resales due
to
circumstances relating to pending developments, public filings with the SEC
and
similar events, or because the Prospectus contains an untrue statement of a
material fact or omits to state a material fact required to be stated therein
or
5
necessary
in order to make statements therein not misleading (any period of suspension
hereunder, a “Suspension
Period”).
If any
Shelf Registration Statement ceases to be effective or usable for resales by
Holders for any reason (other than by reason of any such Holder’s failure to
provide a Questionnaire, in which case the provisions of Section 2(a)(ii) or
2(a)(iii) hereof shall apply) at any time during the Effectiveness Period,
the
Company shall, subject to the proviso contained in the immediately preceding
sentence, use its reasonable best efforts to promptly cause such Shelf
Registration Statement to become effective under the Securities Act, and in
any
event shall, within ten Business Days of such cessation of effectiveness or
usability, (i) file with the SEC one or more supplements to the Prospectus,
post-effective amendments or reports under the Exchange Act in a manner
reasonably expected to obtain the withdrawal of any order suspending the
effectiveness of such Shelf Registration Statement, or (ii) file with the SEC
an
additional Shelf Registration Statement. If a post-effective amendment or an
additional Shelf Registration Statement is filed, the Company shall use its
reasonable best efforts to (A) cause such post-effective amendment or Shelf
Registration Statement to become effective under the Securities Act as promptly
as practicable after such filing, but in no event later than the applicable
Effectiveness Deadline, and (B) keep such post-effective amendment or Shelf
Registration Statement continuously effective until the end of the Effectiveness
Period.
(v) If
the
Shelf Registration Statement is not an Automatic Shelf Registration Statement,
the Company shall not permit any securities other than (i) the Company’s
issued and outstanding securities currently possessing incidental registration
rights and (ii) the Registrable Securities to be included in the Shelf
Registration. The Company will provide to each Holder named therein a reasonable
number of copies of the Prospectus which is a part of the Shelf Registration
Statement, notify each such Holder of the Effective Date and take such other
actions as are required to permit unrestricted resales of the Registrable
Securities by such Holder. The Company further agrees to supplement or amend
the
Shelf Registration Statement or supplement the Prospectus 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) Listing.
The
Company shall use its reasonable best efforts to maintain the approval of the
Common Shares for listing on the New York Stock Exchange.
(c) Expenses.
The
Company shall pay all Registration Expenses in connection with any Shelf
Registration Statement filed pursuant to Section 2(a) hereof (including the
reasonable fees and disbursements of counsel for the Holders of the Registrable
Securities in connection with the review of any Shelf Registration Statement,
Prospectus or amendment or supplement thereto in accordance with the provisions
of Section 3(a) hereof, which counsel shall be reasonably satisfactory to the
Company). Except as provided herein, 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.
(d) Effective
Shelf Registration Statement. If,
after
the Effective Date the offering of Registrable Securities pursuant to a Shelf
Registration Statement is interfered with by any stop
6
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, until the offering of
Registrable Securities pursuant to such Shelf Registration Statement may legally
resume. The Company will be deemed not to have used its reasonable best efforts
to cause a Shelf Registration Statement to become, or to remain, effective
during the requisite period if it voluntarily takes any action that would result
in any such Shelf Registration Statement not being declared effective or that
would result in the Holders of Registrable Securities covered thereby not being
able to offer and sell such Registrable Securities during that period, unless
such action is required by applicable law.
(e) Liquidated
Damages. In
the
event that:
(i) a
Shelf
Registration Statement is not filed with the SEC or designated as such by the
Company on or prior to the Filing Deadline pursuant to Section 2(a)(i), then
liquidated damages (“Liquidated
Damages”)
shall
accrue on the principal amount of the Securities at a rate equal to 0.25% per
annum for the first 90-day period from the day following such Filing Deadline,
and thereafter at a rate per annum of 0.50% of the principal amount of the
Securities;
(ii) (x)
a
Shelf Registration Statement is not declared effective by the SEC, or (y) if
the
Company shall have designated a previously filed and effective Automatic Shelf
Registration Statement as the Shelf Registration Statement for purposes of
this
Agreement, the Company shall not have filed a supplement to the Prospectus
to
cover resales of the Registrable Securities by the Holders, in the case of
either (x) or (y), on or prior to the Effectiveness Deadline pursuant to Section
2(a)(i), then Liquidated Damages shall accrue on the principal amount of the
Securities at a rate equal to 0.25% per annum for the first 90-day period from
the day following such Effectiveness Deadline, and thereafter at a rate per
annum of 0.50% of the principal amount of the Securities;
(iii) following
the Effective Date, (A) the Company fails to make any filing required pursuant
to Section 2(a)(iii) hereof prior to the Filing Deadline applicable thereto,
or
(B) in the event such filing is a post-effective amendment or additional Shelf
Registration Statement, such post-effective amendment or Shelf Registration
Statement fails to become effective on or prior to the Effectiveness Deadline
applicable thereto, then Liquidated Damages shall accrue on the principal amount
of the Securities at a rate equal to 0.25% per annum for the first 90-day period
from the day following such Filing Deadline or Effectiveness Deadline, as
applicable, and thereafter at a rate per annum of 0.50% of the principal amount
of the Securities;
(iv) following
the Effective Date, a Shelf Registration Statement ceases to be effective
(without being succeeded immediately by an additional Shelf Registration
Statement that is filed and immediately becomes effective) or usable for the
offer and sale of the Registrable Securities, other than in connection with
(A)
a Suspension Period or (B) as a result of a requirement to file a post-effective
amendment or supplement to the Prospectus to make changes to the information
regarding selling securityholders or the plan of distribution provided for
therein, and the Company does not cure the lapse of effectiveness or usability
within ten Business Days (or, if a Suspension Period is then in effect, within
ten Business Days following the expiration of such Suspension Period), then
Liquidated Damages shall accrue on the principal
7
amount
of
the Securities at a rate equal to 0.25% per annum for the first 90-day period
from the day following such tenth Business Day, and thereafter at a rate per
annum of 0.50% of the principal amount of the Securities;
(v) any
Suspension Period or Periods exceed 30 days in any three-month period or 90
days
in any 12-month period, then, commencing with the 31st day in such three-month
period or the 91st day in such 12-month period, as the case may be, then
Liquidated Damages shall accrue on the principal amount of the Securities at
a
rate equal to 0.25% per annum for the first 90-day period from the day following
the 31st or 91st day, as the case may be, and thereafter at a rate per annum
of
0.50% of the principal amount of the Securities; or
(vi) if
the
Company fails to name as a selling securityholder any Holder that had complied
timely with its obligations hereunder in a manner to entitle such Holder to
be
so named in (A) any Shelf Registration Statement at the time it first becomes
effective or (B) any Prospectus at the later of time of filing thereof or the
time the Shelf Registration Statement of which the Prospectus forms a part
becomes effective, then Liquidated Damages will accrue on the principal amount
of Securities held by such Holder at a rate equal to 0.25% per annum for the
first 90-day period from the day following the effective date of such Shelf
Registration Statement or the time of filing of such Prospectus, as the case
may
be, and thereafter at a rate per annum of 0.50% of the principal amount of
the
Securities held by such Holder;
provided,
however, that in
no event shall Liquidated Damages accrue at a rate per annum exceeding 0.50%
of
the principal amount of the Securities; and provided
further
that
Liquidated Damages on the principal amount of the Securities as a result thereof
shall cease to accrue:
(1) upon
the
filing or designation of a Shelf Registration Statement (in the case of clause
(i) above);
(2) upon
the
Effective Date (in the case of clause (ii) above);
(3) upon
the
filing of a supplement to the Prospectus (in the case of clause (iii)(A) above)
or upon the Effective Date (in the case of clause (iii)(B) above);
(4) upon
such
time as the Shelf Registration Statement which had ceased to remain effective
or
usable for resales again becomes effective and usable for resales (in the case
of clause (iv) above);
(5) upon
such
time as the Shelf Registration Statement which had ceased to remain effective
or
usable for resales again becomes effective and usable for resales (in the case
of clause (v) above); or
(6) upon
the
time such Holder is permitted to sell its Registrable Securities pursuant to
any
Shelf Registration Statement and Prospectus in accordance with applicable law
(in the case of clause (vi) above).
Any
amounts of Liquidated Damages due pursuant to Section 2(e) will be payable
in cash on the next succeeding interest
payment date to Holders entitled to receive such Liquidated Damages on the
relevant record dates for the payment of interest.
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Notwithstanding
any provision in this Agreement, in no event shall Liquidated Damages accrue
to
holders of Common Shares issued upon conversion of Notes. If any Note ceases
to
be outstanding during any period for which Liquidated Damages are accruing,
the
Company will prorate the Liquidated Damages payable with respect to such
Note.
(f) 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 best efforts to:
(a) prepare
and file with the SEC or designate a Shelf Registration Statement as prescribed
by Section 2(a)(i) hereof within the relevant time period specified in
Section 2(a)(i) 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 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; the Company shall use its reasonable best efforts to 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 Prospectus or any amendments
or supplements thereto, the Company shall furnish to and afford the Holders
of
the Registrable Securities covered by such Shelf Registration Statement, their
counsel and the managing underwriters, if any, a reasonable opportunity to
review copies of all such documents (including copies of any documents to be
incorporated by reference therein and all exhibits thereto) proposed to be
filed; and the Company shall not file any Shelf Registration Statement or
Prospectus or any amendments or supplements thereto in respect of which the
Holders must be afforded an opportunity to review prior to the filing of such
document if the Majority Holders, their counsel or the managing underwriters,
if
any, shall reasonably object in a timely manner;
(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 provisions 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;
9
(c) (i)
furnish to each Holder of Registrable Securities included in 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 (ii) 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 applicable Shelf
Registration Statement has become effective under the Securities Act as any
Holder of Registrable Securities covered by a Shelf Registration Statement
and
each underwriter of an underwritten offering of Registrable Securities 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 and underwriter 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 entity or as a
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 or (iii) subject itself to taxation
in any such jurisdiction if it is not then so subject;
(e) promptly
notify each Holder of Registrable Securities, its counsel and the managing
underwriters, if any, 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 and 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 and the closing of any sale of Registrable Securities covered
thereby, any of the representations and warranties of the Company contained
in
any purchase 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;
10
(g) furnish
to each Holder of Registrable Securities included within the coverage of a
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) (subject to the respective grace periods set forth in Section 2(a)(iv))
or 3(e)(vi) hereof, prepare a supplement or post-effective amendment to the
Shelf Registration Statement or the related 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 the Company
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 a Shelf Registration Statement or a Prospectus after the
initial filing of a Shelf Registration Statement, 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 or any Initial Purchaser on behalf of such Holders available for
discussion of such document;
(k) subject
to Section 5 hereof, enter into such agreements (including underwriting
agreements) as are customary in underwritten offerings and take all such other
appropriate actions in connection therewith as are reasonably requested by
the
Holders collectively holding at least 25% in aggregate principal amount or
number, as the context requires, of the Registrable Securities in order to
expedite or facilitate the registration or the disposition of the Registrable
Securities;
(l) whether
or not an underwriting agreement is entered into and whether or not the
registration is an underwritten registration, if requested by (x) any Initial
Purchaser, in the case where such Initial Purchaser holds Securities acquired
by
it as part of its initial placement and (y) Holders collectively holding at
least 25% in aggregate principal amount or number, as the context requires,
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
11
underwriters
in underwritten offerings, and confirm the same if and when requested;
(ii) obtain opinions of counsel to the Company and updates thereof (which
may be in the form of a reliance letter) in form and substance reasonably
satisfactory to the managing underwriters (if any) and the Holders collectively
holding a majority in aggregate principal amount or number, as the context
requires, of the Registrable Securities being sold, addressed to each selling
Holder and the underwriters (if any) covering the matters customarily covered
in
opinions requested in underwritten offerings and such other matters as may
be
reasonably requested by such underwriters (it being agreed that the matters
to
be covered by such opinion may be subject to customary qualifications and
exceptions); (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; and
(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 collectively holding a majority in aggregate principal amount or number,
as the context requires, of Registrable Securities covered by such Shelf
Registration Statement 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;
(m) 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 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, trust managers and employees
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 Statement; Records and information which the Company, in good
faith, deems to be confidential and any Records and information which it
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 such 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 selling Holder of such Registrable Securities
will
be required to agree in writing that Records and information obtained by it
as a
result of such inspections shall
12
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 an Inspector or a selling
Holder; and each selling Holder of such Registrable Securities 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;
(n) 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) (i) commencing at the
end of any fiscal quarter in which Registrable Securities are sold to
underwriters in a firm commitment or best efforts underwritten offering and
(ii) if not sold to underwriters in such an offering, commencing on the
first day of the first fiscal quarter of the Company after the Effective Date,
which statements shall cover said twelve-month periods, provided that the
obligations under this Section 3(n) shall be satisfied by the timely filing
of quarterly and annual reports on Forms 10-Q and 10-K under the Exchange
Act;
(o) cooperate
with each seller of Registrable Securities covered by a Shelf Registration
Statement and each underwriter, if any, participating in the disposition of
such
Registrable Securities and its respective counsel in connection with any filings
required to be made with the NASD;
(p) take
all
other steps necessary to effect the registration of the Registrable Securities
covered by a Shelf Registration Statement contemplated hereby; and
(q) 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 a 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 a 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 applicable Prospectus may be resumed, and, if so
directed by the Company, such Holder will deliver to the Company (at its
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
13
Company
shall give any such notice to suspend the disposition of Registrable Securities
pursuant to a Shelf Registration Statement, the Company shall use its reasonable
best 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 related Prospectus.
4. Indemnification
and Contribution.
(a)
The
Company hereby agrees to indemnify and hold harmless the Initial Purchasers,
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 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 any amendment thereto)
or
the Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact required to be stated therein,
in
the light of the circumstances under which they were made, not
misleading;
(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 the Initial Purchasers or 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 any Initial Purchaser through
the Representative or 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
Initial Purchaser and each Holder or underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, its trust managers 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
14
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 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 under this Section 4 to the extent that it is not materially
prejudiced by such failure as a result thereof, and in any event shall not
relieve it from liability which it may have otherwise on account of this
indemnity agreement. 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 party) also be counsel to the
indemnified party. In no event shall the 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
15
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 Securities Act) 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 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 trust manager 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. Underwritten
Registration; Participation Therein.
In no
event will the method of distribution of the Registrable Securities take the
form of an underwritten offering without the prior written consent of the
Company. 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 arrangements 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.
(a) 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 Sections 3(l) and
5 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 aggregate principal amount or number, as the context
requires, of the Registrable Securities included in such offering;
provided,
however, that
such
underwriters and managers must be reasonably satisfactory to the Company.
6. Miscellaneous.
(a) Rule 144
and Rule 144A. For
so
long as it is subject to the reporting requirements of Section 13 or 15 of
the Exchange Act and any Registrable Securities remain outstanding, the
16
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, upon the
request of any Holder of Registrable Securities (a) make publicly available
such
information as is necessary to permit sales of its securities pursuant to
Rule 144 under the Securities Act, (b) deliver such information to a
prospective purchaser as is necessary to permit sales of its securities pursuant
to Rule 144A under the Securities Act, and (c) take such further
action that is reasonable in the circumstances, in each case, to the extent
required from time to time to enable such Holder to sell its Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (i) Rule 144 under the Securities Act,
as such rule may be amended from time to time, (ii) Rule 144A under
the Securities Act, as such rule may be amended from time to time, or
(iii) 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.
(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 the Holders holding at least a majority of the aggregate
principal amount of the Registrable Securities outstanding and 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
Initial Purchasers, 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 Initial
Purchasers 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 Initial Purchasers, 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 Initial Purchasers
and the Company.
17
(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 6(d),
which address initially is, with respect to the Initial Purchasers, the
addresses of the Representative set forth in the Purchase Agreement; and
(ii) if to the Company, initially at the Company’s address set forth in the
Purchase Agreement and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section 6(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 Initial Purchasers, including, without limitation
and without the need for an express assignment, subsequent Holders;
provided,
however, that
nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Registrable Securities in violation of the terms of the Purchase
Agreement, the Indenture relating to the Notes or amended declaration of trust
of the Company. 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.
(f) Third
Party Beneficiaries. Each
Holder shall be a third party beneficiary of the agreements made hereunder
between the Company and the Initial Purchasers, and each Initial Purchaser
shall
have the right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights or the rights of
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
18
SUBMIT
TO
THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY SUIT,
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.
[Signature
Page Follows]
19
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
Very
truly yours,
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XXXXXXXXXX
REALTY INVESTORS
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By:
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/s/
Xxxxxxx X. Xxxxxxx
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Xxxxxxx
X. Xxxxxxx
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Executive
Vice President and Chief Financial
Officer
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CONFIRMED
AND ACCEPTED, as of the date first above written:
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||
|
CITIGROUP
GLOBAL MARKETS INC.
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By:
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/s/
Xxxx Xxxxxxxxx
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Xxxx
Xxxxxxxxx
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Managing
Director
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||
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For
itself and as Representative of the Initial Purchasers named in Schedule
A
to the Purchase Agreement
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20
