Exhibit 4.7
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made
and entered into 30/th/ day of October, 2001, among CP Limited Partnership, a
Maryland limited partnership (the "Operating Partnership"), and the Initial
Purchasers (as hereinafter defined).
This Agreement is made pursuant to the Purchase Agreement,
dated October 23, 2001 (the "Purchase Agreement"), among the Operating
Partnership and the Initial Purchasers, which provides for the sale by the
Operating Partnership to the Initial Purchasers of an aggregate of $150,000,000
million principal amount of the Operating Partnership's 7.125% Senior Notes due
2011 (the "Securities"). In order to induce the Initial Purchasers to enter into
the Purchase Agreement, the Operating Partnership has agreed to provide to the
Initial Purchasers and their direct and indirect transferees the registration
rights set forth in this Agreement. The execution and delivery of this Agreement
is a condition to the closing of the transactions contemplated under the
Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following
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capitalized defined terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended
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from time to time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as
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amended from time to time.
"Affiliate" shall mean, with respect to any specified Person,
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any other Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified Person. For
the purposes of this definition, "control," when used with respect to
any Person, means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise and the terms "affiliated,"
"controlling" and "controlled" have meanings correlative to the
foregoing.
"Business Day" shall mean any day, other than a Saturday or
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Sunday, that is neither a legal holiday nor a day on which commercial
banks are authorized or required by law, regulation or executive order
to be closed in The City of New York.
"Closing Date" shall mean the Closing Time as defined in the
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Purchase Agreement.
"Depositary" shall mean The Depository Trust Company, or any
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other depositary appointed by the Operating Partnership; provided,
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however, that such depositary must have an address in the Borough of
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Manhattan, in The City of New York.
"Exchange Offer" shall mean the exchange offer by the
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Operating Partnership of Exchange Securities for Registrable Securities
pursuant to Section 2.1 hereof.
"Exchange Offer Registration" shall mean a registration under
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the 1933 Act effected pursuant to Section 2.1 hereof.
"Exchange Offer Registration Statement" shall mean an exchange
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offer registration statement on Form S-4 (or, if applicable, on another
appropriate form), and all amendments and supplements to such
registration statement, including the Prospectus contained therein, all
exhibits thereto and all documents incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section
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2.1 hereof.
"Exchange Securities" shall mean the 7.125% Senior Notes due
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2011 issued by the Operating Partnership under the Indenture containing
terms identical to the Securities in all material respects (except for
references to certain interest rate provisions, restrictions on
transfers and restrictive legends), to be offered to Holders of
Securities in exchange for Registrable Securities pursuant to the
Exchange Offer.
"Holder" shall mean an Initial Purchaser, for so long as it
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owns any Registrable Securities, and each of its successors, assigns
and direct and indirect transferees who become registered owners of
Registrable Securities under the Indenture.
"Indenture" shall mean that certain indenture, dated December
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19, 1997, between the Operating Partnership and Bank One Trust Company,
N.A. (successor in interest to The First National Bank of Chicago), as
trustee, as supplemented by a supplemental indenture, dated as of
October 30, 2001, pursuant to which the Securities are to be issued, as
the same may be further amended, supplemented, waived or otherwise
modified from time to time in accordance with the terms thereof.
"Initial Purchasers" shall mean Banc One Capital Markets,
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Inc., Credit Suisse First Boston Corporation, UBS Warburg LLC, X.X.
Xxxxxxx & Sons, Inc. and each other initial purchaser as set forth in
the Purchase Agreement.
"Majority Holders" shall mean the Holders of a majority of the
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aggregate principal amount of Outstanding (as defined in the Indenture)
Registrable Securities; provided, that whenever the consent or approval
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of Holders of a specified percentage of Registrable Securities is
required hereunder, Registrable Securities held by the Operating
Partnership or any Affiliate of the Operating Partnership shall be
disregarded in determining whether such consent or approval was given
by the Holders of such required percentage amount.
"Offering Memorandum" shall mean any offering memorandum
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(whether the preliminary offering memorandum or the final offering
memorandum, or any amendments or supplements to either such document)
that has been prepared and delivered by the Operating Partnership to
the Initial Purchaser in connection with the offering of the
Securities.
"Operating Partnership" shall have the meaning set forth in
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the preamble and shall also include the Operating Partnership's
successors.
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"Participating Broker-Dealer" shall mean Banc One Capital
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Markets, Inc., Credit Suisse First Boston Corporation, UBS Warburg LLC,
X.X. Xxxxxxx & Sons, Inc. and any other broker-dealer which makes a
market in the Securities and exchanges Registrable Securities in the
Exchange Offer for Exchange Securities.
"Person" shall mean an individual, partnership (general or
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limited), corporation, limited liability company, trust or incorporated
organization, or a government or agency or political subdivision
thereof.
"Prospectus" shall mean the prospectus included in a
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Registration Statement, including any preliminary prospectus, and any
such prospectus as amended or supplemented by any prospectus
supplement, including any such 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 material incorporated by reference
therein.
"Purchase Agreement" shall have the meaning set forth in the
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preamble.
"Registrable Securities" shall mean the Securities; provided,
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however, that such Securities shall cease to be Registrable Securities
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when (i) a Registration Statement with respect to such Securities shall
have been declared effective under the 1933 Act and such Securities
shall have been disposed of pursuant to such Registration Statement,
(ii) such Securities can be sold to the public pursuant to Rule 144 (or
any similar provision then in force, but not Rule 144A) under the 1933
Act, (iii) such Securities shall have ceased to be outstanding or (iv)
the Exchange Offer is consummated (except in the case of Securities
purchased from the Operating Partnership and continued to be held by an
Initial Purchaser as a result of being an unsold allotment from the
initial sale of the Securities as contemplated by the Offering
Memorandum).
"Registration Default" shall have the meaning set forth in
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Section 2.5 hereof.
"Registration Expenses" shall mean any and all expenses
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incident to performance of or compliance by the Operating Partnership
with this Agreement, including without limitation: (i) all SEC, stock
exchange or National Association of Securities Dealers, Inc. (the
"NASD") registration and filing fees, including, if applicable, the
reasonable fees and expenses of any "qualified independent underwriter"
(and its counsel) that is required to be retained by any Holder 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 and compliance with the rules of the NASD
(including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with "blue sky" qualification of
any of the Exchange Securities or Registrable Securities), (iii) all
expenses of any Persons in preparing or assisting in preparing, word
processing, printing and distributing any Registration Statement, any
Prospectus, any amendments or supplements thereto, any underwriting
agreements, securities sales agreements and other documents relating to
the performance of and compliance with this Agreement, (iv) all fees
and expenses incurred in connection with the listing, if any, of any of
the Registrable
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Securities on any securities exchange or exchanges, (v) all rating
agency fees, (vi) the fees and disbursements of counsel for the
Operating Partnership and of the independent public accountants of the
Operating Partnership, including the expenses of any special audits or
"cold comfort" letters required by or incident to such performance and
compliance, (vii) the fees and expenses of the Trustee (including its
counsel), and any escrow agent or custodian, (viii) the reasonable
fees and expenses of the Initial Purchasers in connection with the
Exchange Offer, including the reasonable fees and expenses of counsel
to the Initial Purchasers in connection therewith, and (ix) any
reasonable fees and disbursements of the underwriters customarily
required to be paid by issuers or sellers of securities and the
reasonable fees and expenses of any special experts retained by the
Operating Partnership in connection with any Registration Statement,
but excluding underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of Registrable
Securities by a Holder. It is understood that in no event shall the
Operating Partnership be liable for the fees and expenses of more than
one counsel (in addition to any local counsel) in connection with
registration pursuant to either Section 2.1 or 2.2.
"Registration Statement" shall mean any registration statement
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of the Operating Partnership filed with the SEC pursuant to the 1933
Act which covers any of the Exchange Securities or Registrable
Securities pursuant to the provisions of this Agreement, and all
amendments and supplements to any such Registration Statement,
including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission or any
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successor agency or government body performing the functions currently
performed by the United States Securities and Exchange Commission.
"Securities" shall have the meaning set forth in the preamble.
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"Shelf Registration" shall mean a registration effected
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pursuant to Section 2.2 hereof.
"Shelf Registration Statement" shall mean a "shelf"
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registration statement of the Operating Partnership pursuant to the
provisions of Section 2.2 of this Agreement which covers all of the
Registrable Securities on an appropriate form under Rule 415 under the
1933 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 material incorporated
by reference therein.
"Trustee" shall mean the trustee with respect to the
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Securities under the Indenture.
2. Registration Under the 1933 Act.
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2.1. Exchange Offer. The Operating Partnership shall (A)
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prepare and, as soon as practicable but not later than 90 calendar days
following the Closing Date, file with the SEC an Exchange Offer Registration
Statement under the 1933 Act with respect to a proposed
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Exchange Offer and the issuance and delivery to the Holders, in exchange for
Registrable Securities, a like principal amount of Exchange Securities, (B) use
its reasonable best efforts to cause the Exchange Offer Registration Statement
to be declared effective under the 1933 Act not later than 150 calendar days
following the Closing Date, (C) use its reasonable best efforts to keep the
Exchange Offer Registration Statement effective until the closing of the
Exchange Offer and (D) use its reasonable best efforts to cause the Exchange
Offer to be consummated within 180 calendar days following the Closing Date. The
Exchange Securities will be issued under the Indenture. Upon the effectiveness
of the Exchange Offer Registration Statement, the Operating Partnership shall
promptly commence the Exchange Offer, it being the objective of such Exchange
Offer to enable each Holder eligible and electing to exchange Registrable
Securities for Exchange Securities (assuming that such Holder (a) is not an
affiliate of the Operating Partnership within the meaning of Rule 405 under the
1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired
directly from the Operating Partnership for its own account, (c) acquired the
Exchange Securities in the ordinary course of such Holder's business or (d) has
no arrangements or understandings with any Person to participate in the Exchange
Offer for the purpose of distributing the Exchange Securities) to transfer such
Exchange Securities from and after their receipt without any limitations or
restrictions under the 1933 Act and without material restrictions under the
securities laws of a substantial proportion of the several states of the United
States.
In connection with the Exchange Offer, the Operating Partnership
shall:
(a) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement together with an appropriate letter
of transmittal and related documents;
(b) keep the Exchange Offer open for acceptance for a period of not
less than 30 calendar days after the date notice thereof is mailed to the
Holders (or longer if required by applicable law) (such period referred to
herein as the "Exchange Period");
(c) utilize the services of the Depositary for the Exchange Offer;
(d) permit Holders to withdraw tendered Registrable Securities at any
time prior to 5:00 p.m. (Eastern Time) on the last Business Day of the
Exchange Period, by sending to the institution specified in the notice, a
telegram, telex, facsimile transmission or letter setting forth the name of
such Holder, the principal amount of Registrable Securities delivered for
exchange, and a statement that such Holder is withdrawing such Holder's
election to have such Registrable Securities exchanged;
(e) notify each Holder that any Registrable Security not tendered will
remain outstanding and continue to accrue interest, but will not retain any
rights under this Agreement (except in the case of the Initial Purchasers
and Participating Broker-Dealers as provided herein); and
(f) otherwise comply in all respects with all applicable laws relating
to the Exchange Offer.
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As soon as practicable after the close of the Exchange Offer, the Operating
Partnership shall:
(i) accept for exchange all Registrable Securities duly tendered and
not validly withdrawn pursuant to the Exchange Offer in accordance with the
terms of the Exchange Offer Registration Statement and the letter of
transmittal which shall be an exhibit thereto;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver Exchange
Securities to each Holder of Registrable Securities so accepted for
exchange in a principal amount equal to the principal amount of the
Registrable Securities of such Holder so accepted for exchange.
The Operating Partnership shall use its reasonable best efforts to keep the
Exchange Offer Registration Statement effective and to amend and supplement the
Prospectus contained therein, in order to permit such Prospectus to be lawfully
delivered by all Participating Broker-Dealers subject to the prospectus delivery
requirements of the 1933 Act for such period of time as such Participating
Broker-Dealers must comply with such requirements in order to resell the
Exchange Securities; provided, however, that (i) such period shall be the lesser
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of 90 days after the consummation of the Exchange Offer and the date on which
all Participating Broker-Dealers have sold all Exchange Securities held by them
(unless such period is extended pursuant to Section 3(l) below) and (ii) the
Operating Partnership shall make such Prospectus, and any amendment or
supplement thereto, available to any such Participating Broker-Dealer for use in
connection with any resale of any Exchange Securities for a period of the lesser
of 90 days after the consummation of the Exchange Offer and the date on which
all Participating Broker-Dealers have sold all Exchange Securities held by them
(unless such period is extended pursuant to Section 3(l) below).
Interest on the Exchange Securities will accrue from the most recent
interest payment date with respect to which interest has been paid on the
Registrable Securities surrendered in exchange therefor or, if no interest has
been paid on the Registrable Securities, from the Closing Date. The Exchange
Offer shall not be subject to any conditions, other than (i) that the Exchange
Offer, or the making of any exchange by a Holder, does not violate any
applicable law or any applicable interpretation of the staff of the SEC, (ii)
the due tendering of Registrable Securities in accordance with the Exchange
Offer, (iii) that each Holder of Registrable Securities exchanged in the
Exchange Offer shall have represented that all Exchange Securities to be
received by it shall be acquired in the ordinary course of its business and that
at the time of the consummation of the Exchange Offer it shall have no
arrangement or understanding with any Person to participate in the distribution
(within the meaning of the 0000 Xxx) of the Exchange Securities and shall have
made such other representations as may be reasonably necessary under applicable
SEC rules, regulations or interpretations to render the use of Form S-4 or other
appropriate form under the 1933 Act available and (iv) that no action or
proceeding shall have been instituted or threatened in any court or by or before
any governmental agency with respect to the Exchange Offer which, in the
Operating Partnership's
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judgment, would reasonably be expected to impair the ability of the Operating
Partnership to proceed with the Exchange Offer. The Operating Partnership shall
inform the Initial Purchasers of the names and addresses of the Holders to whom
the Exchange Offer is made, and the Initial Purchasers shall have the right to
contact such Holders and otherwise facilitate the tender of Registrable
Securities in the Exchange Offer.
If the Operating Partnership effects the Exchange Offer, it will be
entitled to close such offer at the close of business 30 calendar days after
commencement thereof, provided that it has accepted all Registrable Securities
theretofore validly tendered in accordance with the terms of the Exchange Offer.
Registrable Securities not tendered in the Exchange Offer shall bear interest at
the rate specified in the Offering Memorandum and be subject to all of the terms
and conditions specified in the Indenture with respect to the Securities and to
the transfer restrictions described therein; provided, however, that from and
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after the closing of the Exchange Offer, Holders of such Registrable Securities
shall not be entitled to the benefit of, or to retain or exercise, any of the
rights under this Agreement relating to such Registrable Securities (except in
the case of the Initial Purchasers and Participating Broker-Dealers as provided
herein).
2.2. Shelf Registration. (i) If, because of any changes in law, SEC
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rules or regulations or applicable interpretations thereof by the staff of the
SEC, the Operating Partnership is not permitted to effect the Exchange Offer as
contemplated by Section 2.1 hereof, (ii) if for any other reason (A) the
Exchange Offer Registration Statement is not declared effective within 150
calendar days following the Closing Date or (B) the Exchange Offer is not
consummated within 180 calendar days after the Closing Date, (iii) upon the
written request of any of the Initial Purchasers with respect to any Registrable
Securities which such Initial Purchaser acquired directly from the Operating
Partnership and continues to hold as a result of being an unsold allotment from
the initial sale of the Securities as contemplated by the Offering Memorandum or
(iv) upon the written request of any Holder that either (A) is not permitted
pursuant to applicable law, SEC rules and regulations or applicable
interpretations thereof by the staff of the SEC to participate in the Exchange
Offer or (B) participates in the Exchange Offer and does not receive fully
tradable Exchange Securities pursuant to the Exchange Offer (other than due
solely to the status of such Holder as an Affiliate of the Operating Partnership
within the meaning of the 1933 Act or as a broker-dealer), then in case of each
of clauses (i) through (iv) the Operating Partnership shall, at its cost:
(a) As promptly as practicable, file with the SEC, and thereafter
shall use its reasonable best efforts to cause to be declared effective as
promptly as practicable but no later than 180 calendar days after the
Closing Date, a Shelf Registration Statement relating to the offer and sale
of the Registrable Securities by the Holders from time to time in
accordance with the method of distribution selected by the Majority Holders
participating in the Shelf Registration and set forth in such Shelf
Registration Statement.
(b) Use its reasonable best efforts to keep the Shelf Registration
Statement continuously effective in order to permit the Prospectus forming
part thereof to be usable by Holders for a period ending on the earliest of
(i) two years from the date the Registrable Securities were originally
issued by the Operating Partnership, (ii) the date on which the Registrable
Securities become eligible for resale without volume limitations pursuant
to Rule 144 under the 1933 Act, or (iii) for such shorter period that will
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terminate when all Registrable Securities covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement or
cease to be outstanding or otherwise to be Registrable Securities.
(c) Notwithstanding any other provisions hereof, use its best efforts
to ensure that (i) any Shelf Registration Statement and any amendment
thereto and any Prospectus forming part thereof and any supplement thereto
complies in all material respects with the 1933 Act and the rules and
regulations thereunder, (ii) any Shelf Registration Statement and any
amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading and (iii) any Prospectus forming part of any Shelf Registration
Statement, and any supplement to such Prospectus (as amended or
supplemented from time to time), does not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements, in the light of the circumstances under which they were
made, not misleading.
The Operating Partnership further agrees, if necessary, to supplement
or amend the Shelf Registration Statement, as required by Section 3(b) below,
and to furnish to the Holders of Registrable Securities copies of any such
supplement or amendment promptly as reasonably practicable after its being used
or filed with the SEC.
2.3. Expenses. The Operating Partnership shall pay all Registration
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Expenses in connection with the registration pursuant to Section 2.1 or 2.2.
Each Holder shall pay all 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.
2.4. Effectiveness. (a) The Operating Partnership will be deemed not
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to have used its reasonable best efforts to cause the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may be,
to become, or to remain, effective during the requisite period if the Operating
Partnership voluntarily takes any action that would, or omits to take any action
which omission would, result in any such Registration Statement not being
declared effective or in the Holders of Registrable Securities covered thereby
not being able to exchange or offer and sell such Registrable Securities during
that period as and to the extent contemplated hereby, unless such action is
required by applicable law.
(b) An Exchange Offer Registration Statement pursuant to Section 2.1
hereof or a Shelf Registration Statement pursuant to Section 2.2 hereof 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
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offering of Registrable Securities pursuant to a 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 Registration Statement
will be deemed not to have become effective during the period of such
interference until the offering of Registrable Securities pursuant to such
Registration Statement may legally resume.
2.5. Interest. In the event that (i) the Exchange Offer Registration
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Statement is not filed with the SEC on or prior to the 90/th/ calendar day
following the Closing Date, (ii) the Exchange Offer Registration Statement has
not been declared effective on or prior to the 150/th/
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calendar day following the Closing Date, (iii) the Exchange Offer is not
consummated or, if applicable, a Shelf Registration Statement is not declared
effective, in either case, on or prior to the 180/th/ calendar day following the
Closing Date or (iv) either (A) the Exchange Offer Registration Statement is
declared effective but thereafter ceases to be effective at any time prior to
the time that the Exchange Offer is consummated or (B) if applicable, the Shelf
Registration Statement has been declared effective and such Shelf Registration
Statement ceases to be effective (at any time that the Operating Partnership
shall be obligated to maintain the effectiveness thereof pursuant to this
Agreement) without being succeeded within 30 days by an additional registration
statement or amendment, which, in either case, causes an effective Shelf
Registration Statement to exist (each such event referred to in clauses (i)
through (iv) above, a "Registration Default"), then the interest rate borne by
the Registrable Securities shall be increased by one-quarter of one percent
(0.25%) per annum immediately upon the occurrence of each Registration Default,
which rate will increase by one-quarter of one percent (0.25%) per annum at the
beginning of each 90-day period (or portion thereof) that such additional
interest continues to accrue under any such circumstance; provided, that the
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aggregate amount of such increases in the interest rate on the Registrable
Securities shall not exceed one-half of one percent (0.50%) per annum until each
Registration Default has been cured; provided, further, that if the Exchange
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Offer Registration Statement is not declared effective on or prior to the
150/th/ day following the Closing Date and the Operating Partnership shall
request holders of the Registrable Securities to provide the information called
for by this Agreement for inclusion in the Shelf Registration Statement, then
Registrable Securities owned by Holders who do not deliver such information to
the Operating Partnership or who do not provide comments on the Shelf
Registration Statement when required pursuant to this Agreement will not be
entitled to any such increase in the interest rate for any day after the 180/th/
day following the Closing Date. Upon (v) the filing of the Exchange Offer
Registration Statement after the 90-day period described in clause (i) above,
(w) the effectiveness of the Exchange Offer Registration Statement after the
150-day period described in clause (ii) above, (x) the consummation of the
Exchange Offer or the effectiveness of a Shelf Registration Statement, as the
case may be, after the 180-day period described in clause (iii) above, (y) the
cure of any Registration Default described in clause (iv) above, or (z) the date
on which all Registrable Securities are saleable pursuant to Rule 144(k) under
the 1933 Act (or any successor provision), the interest rate borne by the
Registrable Securities from the date of such filing, effectiveness, consummation
or cure, as the case may be, will be reduced to the original interest rate if
the Operating Partnership is otherwise in compliance with this paragraph;
provided, however, that if, after any such reduction in interest rate, a
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different event specified in clause (i), (ii), (iii) or (iv) above occurs, the
interest rate will again be increased pursuant to the foregoing provisions;
provided, further, with respect to any Registrable Securities included in any
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Shelf Registration Statement, that the interest rate borne by such Registrable
Securities from the date of effectiveness of the related Shelf Registration
Statement will be the interest rate set forth on the cover page of the Offering
Memorandum and from and after the effective date so long as such Shelf
Registration Statement remains in full force and effect, no Registration Default
shall exist with respect to such Registrable Securities.
If the Operating Partnership issues a notice that any Shelf Registration
Statement is unusable pending the announcement of a material corporate
transaction or otherwise pursuant to Section 3(l) of this Agreement, or such a
notice is required under applicable securities laws to be issued by the
Operating Partnership, and the aggregate number of days in any consecutive
twelve-month period for which all such notices are issued or required to be
issued exceeds 30
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days in the aggregate in any 90-day period or 60 days in the aggregate in any
365-day period, then the interest rate borne by the Registrable Securities will
be increased by one-quarter of one percent (0.25%) per annum following the date
that such Shelf Registration Statement ceases to be usable beyond the 30-day or
60-day period, as applicable, permitted above until the earlier of (i) the date
that the Shelf Registration Statement is again deemed effective or is useable,
(ii) the date on which all Registrable Securities are saleable pursuant to Rule
144(k) under the 1933 Act (or any successor provision) or (iii) the date as of
which all the Registrable Securities have been sold pursuant to the Shelf
Registration Statement. Upon the Operating Partnership declaring that such Shelf
Registration Statement is usable after the interest rate has been increased
pursuant to the preceding sentence, the interest rate borne by the Registrable
Securities will be reduced to the original interest rate if the Operating
Partnership is otherwise in compliance with Section 2.5 of this Agreement;
provided, however, that if, after any such reduction in interest rate, any Shelf
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Registration Statement again ceases to be usable beyond the period permitted
above, the interest rate will again be increased and thereafter reduced pursuant
to the foregoing provisions.
Notwithstanding the foregoing, in no event shall the interest rate
borne by the Registrable Securities be increased pursuant to this Section 2.5 by
an amount which exceeds an aggregate of one-half of one percent (0.50%) per
annum above the otherwise applicable per annum interest rate.
2.6. Specific Enforcement. Without limiting the remedies available
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to the Initial Purchasers and the Holders, the Operating Partnership
acknowledges that any failure by the Operating Partnership to comply with its
respective obligations under Sections 2.1 and 2.2 hereof may result in material
irreparable injury to the Initial Purchasers or the Holders for which there is
no adequate remedy at law, that it will not be possible to measure damages for
such injuries precisely and that, in the event of any such failure, the Initial
Purchasers or any Holder may obtain such relief as may be required to
specifically enforce the Operating Partnership's obligations under Sections 2.1
and 2.2 hereof.
3. Registration Procedures. In connection with the obligations
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of the Operating Partnership with respect to Registration Statements pursuant to
Sections 2.1 and 2.2 hereof, the Operating Partnership shall:
(a) prepare and file with the SEC a Registration Statement, within the
relevant time period specified in Section 2, on the appropriate form under
the 1933 Act, which form (i) shall be selected by the Operating
Partnership, (ii) shall in the case of a Shelf Registration, be available
for the sale of the Registrable Securities by the selling Holders thereof,
(iii) shall comply as to form in all material respects with the
requirements of the applicable form and include or incorporate by reference
all financial statements required by the SEC to be filed therewith or
incorporated by reference therein, (iv) shall comply in all respects with
the requirements of Regulation S-T under the 1933 Act, and (v) shall use
its best efforts to cause such Registration Statement to become effective
and remain effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary under
applicable law to keep such Registration Statement effective for the
applicable period; and cause each
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Prospectus to be supplemented by any required prospectus supplement, and as
so supplemented to be filed pursuant to Rule 424 under the 1933 Act and
comply with the provisions of the 1933 Act applicable to them with respect
to the disposition of all securities covered by each Registration Statement
during the applicable period in accordance with the intended method of
distribution selected by the Majority Holders participating therein;
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Securities, at least five Business Days prior to filing, that a
Shelf Registration Statement with respect to the Registrable Securities is
being filed and advise such Holders that the distribution of Registrable
Securities will be made in accordance with the method selected by the
Majority Holders participating in the Shelf Registration; (ii) furnish to
each Holder of Registrable Securities 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, including financial statements and
schedules (it being understood, however, that any such Holder may not
request any document or financial statement or schedule not required, under
the applicable rules and regulations promulgated by the SEC, to be filed
with the SEC by the Operating Partnership), and, if the Holder so requests,
all exhibits in order to facilitate the public sale or other disposition of
the Registrable Securities; and (iii) hereby consent to the use of the
Prospectus or any amendment or supplement thereto by each of the selling
Holders of Registrable Securities in connection with the offering and sale
of the Registrable Securities covered by the Prospectus or any amendment or
supplement thereto;
(d) in the case of a Shelf Registration, use its best efforts to
register or qualify the Registrable Securities under all applicable state
securities or "blue sky" laws of such jurisdictions as any Holder of
Registrable Securities covered by a Registration Statement and each
underwriter of an underwritten offering of Registrable Securities shall
reasonably request in writing by the time the applicable Registration
Statement is declared effective by the SEC, and do any and all other acts
and things which may be reasonably necessary or advisable to enable each
such Holder and underwriter to consummate the disposition in each such
jurisdiction of such Registrable Securities owned by such Holder; provided,
--------
however, that the Operating Partnership shall not be required to (i)
-------
qualify as a foreign limited partnership or as a dealer in securities in
any jurisdiction where it would not otherwise be required to qualify but
for this Section 3(d), or (ii) take any action which would subject it to
general service of process or taxation in any such jurisdiction where it is
not then so subject;
(e) notify promptly each Holder of Registrable Securities under a
Shelf Registration or any Participating Broker-Dealer who has notified the
Operating Partnership that it is utilizing the Exchange Offer Registration
Statement as provided in paragraph (f) below, and, if requested in writing
by such Holder or Participating Broker-Dealer, confirm such advice in
writing promptly (i) when a Registration Statement has become effective and
when any post-effective amendments and supplements thereto become
effective, (ii) of any request by the SEC or any state securities authority
for post-
11
-
effective amendments and supplements to a Registration Statement and
Prospectus or for additional information after the 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
Registration Statement or the initiation of any proceedings for that
purpose, (iv) in case of a Shelf Registration, if, between the effective
date of a Registration Statement and the closing of any sale of Registrable
Securities covered thereby, the representations and warranties of the
Operating Partnership contained in any underwriting agreement, securities
sales agreement or other similar agreement, if any, relating to the
offering cease to be true and correct in all material respects, (v) of the
happening of any event or the discovery of any facts during the period a
Shelf Registration Statement is effective which makes any statement made in
such Registration Statement or related Prospectus untrue in any material
respect or which requires the making of any changes in such Registration
Statement or Prospectus in order to make the statements therein not
misleading and (vi) of the receipt by the Operating Partnership of any
notification with respect to the suspension of the qualification of the
Registrable Securities or the Exchange Securities, as the case may be, for
sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose;
(f) (A) in the case of the Exchange Offer (i) include in the Exchange
Offer Registration Statement a section entitled "Plan of
Distribution" which section shall include all information that
the Initial Purchasers may reasonably request, and which shall
contain a summary statement of the positions taken or policies
made by the staff of the SEC with respect to the potential
"underwriter" status of any broker-dealer that holds Registrable
Securities acquired for its own account as a result of
market-making activities or other trading activities and that
will be the beneficial owner (as defined in Rule 13d-3 under the
Exchange Act) of Exchange Securities to be received by such
broker-dealer in the Exchange Offer, whether such positions or
policies have been publicly disseminated by the staff of the SEC
or such positions or policies, in the reasonable judgment of the
Initial Purchasers and their counsel, represent the prevailing
views of the staff of the SEC, including a statement that any
such broker-dealer who receives Exchange Securities for
Registrable Securities pursuant to the Exchange Offer may be
deemed a statutory underwriter and must deliver a Prospectus
meeting the requirements of the 1933 Act in connection with any
resale of such Exchange Securities, (ii) furnish to each
Participating Broker-Dealer who has delivered to the Operating
Partnership the notice referred to in Section 3(e), without
charge, as many copies of each Prospectus included in the
Exchange Offer Registration Statement, including any preliminary
Prospectus, and any amendment or supplement thereto, as such
Participating Broker-Dealer may reasonably request, (iii) hereby
consent to the use of the Prospectus forming part of the Exchange
Offer Registration Statement or any amendment or supplement
thereto, by any Person subject to the prospectus delivery
requirements of the SEC, including all Participating
Broker-Dealers, in connection with the sale or transfer of the
Exchange Securities covered by the Prospectus or any amendment or
supplement thereto, and (iv) include in the transmittal letter or
12
similar documentation to be executed by an exchange offeree in
order to participate in the Exchange Offer (x) the following
provision:
"if the exchange offeree is a broker-dealer holding
Registrable Securities acquired for its own account
as a result of market-making activities or other
trading activities, it will deliver a prospectus
meeting the requirements of the 1933 Act in
connection with any resale of Exchange Securities
received in respect of such Registrable Securities
pursuant to the Exchange Offer;" and
(y) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (x) and by delivering a
Prospectus in connection with the exchange of Registrable
Securities, the broker-dealer will not be deemed to admit that it
is an underwriter within the meaning of the 1933 Act; and
(B) in the case of any Exchange Offer, the Operating Partnership
agrees to deliver to the Participating Broker-Dealers upon the
effectiveness of the Exchange Offer Registration Statement (i) an
opinion of counsel or opinions of counsel substantially in the form
attached hereto as Exhibit A, (ii) an officers' certificate
---------
substantially in the form customarily delivered in a public offering
of debt securities and (iii) a comfort letter or comfort letters in
customary form if permitted by Statement on Auditing Standards No. 72
of the American Institute of Certified Public Accounts ("SAS 72"), or
if such a comfort letter is not permitted by SAS 72, an agreed upon
procedures letter in customary form at least as broad in scope and
coverage as the comfort letter or comfort letters delivered to the
Initial Purchasers in connection with the initial sale of the
Securities to the Initial Purchasers;
(g) The Operating Partnership may require each seller of Registrable
Securities as to which any registration is being effected to (i) agree in
writing to be bound by all of the provisions of this Agreement applicable
to such seller and (ii) furnish to the Operating Partnership, in writing,
within 15 days after receipt of a request therefor, with such information
as the Operating Partnership may, after conferring with counsel, reasonably
request for inclusion in any Shelf Registration Statement or Prospectus
included therein. The Operating Partnership shall have no obligation to
register under the 1933 Act the Registrable Securities of any seller who
fails to comply with the obligations set forth in (i) and (ii) above. Each
seller agrees to furnish to the Operating Partnership all information with
respect to such seller necessary to make the information previously
furnished to the Operating Partnership by such seller not materially
misleading.
(h) (i) in the case of an Exchange Offer, furnish counsel for the
Initial Purchasers and (ii) in the case of a Shelf Registration, furnish
counsel for the Holders of Registrable Securities copies of any comment
letters received from the SEC or any other request by the SEC or any state
securities authority for amendments or supplements to a Registration
Statement and Prospectus or for additional information;
13
(i) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible moment;
(j) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, and each underwriter, if any, without charge, at
least one conformed copy of each Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules (without documents incorporated therein by reference and all
exhibits thereto, unless requested);
(k) in the case of a Shelf Registration, 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 enable such Registrable Securities
to be in such denominations (consistent with the provisions of the
Indenture) and registered in such names as the selling Holders or the
underwriters, if any, may reasonably request at least three Business Days
prior to the closing of any sale of Registrable Securities;
(l) in the case of a Shelf Registration, upon the occurrence of any
event or the discovery of any facts, each as contemplated by Sections
3(e)(iv) and 3(e)(v) hereof, use its best efforts to prepare a supplement
or post-effective amendment to the 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 or Participating Broker-Dealers, such
Prospectus will not contain at the time of such delivery 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 or will remain so qualified;
(m) in the case of a Shelf Registration, a reasonable time prior to
the filing of any Registration Statement, any Prospectus, any amendment to
a Registration Statement or amendment or supplement to a Prospectus or any
document which is to be incorporated by reference into a Registration
Statement or a Prospectus after initial filing of a Registration Statement,
provide copies of such document to the Initial Purchasers on behalf of such
Holders; and make representatives of the Operating Partnership as shall be
reasonably requested by the Holders of Registrable Securities, or the
Initial Purchasers on behalf of such Holders, available for discussion of
such document;
(n) obtain a CUSIP number of all Exchange Securities or Registrable
Securities, as the case may be, not later than the effective date of a
Registration Statement, and provide the Trustee with printed certificates
for the Exchange Securities or the Registrable Securities, as the case may
be, in a form eligible for deposit with the Depositary;
(o) (i) cause the Indenture to be qualified under the Trust Indenture
Act of 1939 (the "TIA") in connection with the registration of the Exchange
Securities or Registrable Securities, as the case may be, (ii) cooperate
with the Trustee and the Holders to effect such changes to the Indenture as
may be required for the Indenture to be so qualified in accordance with the
terms of the TIA and (iii) execute, and use its reasonable
14
best efforts to cause the Trustee to execute, all documents as may be
required to effect such changes, and all other forms and documents required
to be filed with the SEC to enable the Indenture to be so qualified in a
timely manner;
(p) in the case of a Shelf Registration, enter into agreements
(including underwriting agreements) and take all other customary and
appropriate actions in order to expedite or facilitate the disposition of
such Registrable Securities and in such connection whether or not an
underwriting agreement is entered into and whether or not the registration
is an underwritten registration:
(i) make such representations and warranties to the Holders of
such Registrable Securities and the underwriters, if any, in form,
substances and scope as are customarily made by issuers to
underwriters in similar underwritten offerings as may be reasonably
requested by them;
(ii) obtain opinions of counsel to the Operating Partnership and
updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the managing
underwriters, if any, and the Majority Holders 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 sales of securities or underwritten offerings
and such other matters as may be reasonably requested by such Holders
and underwriters;
(iii) obtain "cold comfort" letters and updates thereof from the
Operating Partnership's independent certified public accountants
addressed to the underwriters, if any, and use reasonable efforts to
have such letter addressed to the selling Holders of Registrable
Securities (to the extent consistent with SAS 72), such letters to be
in customary form and covering matters of the type customarily covered
in "cold comfort" letters to underwriters in connection with similar
underwritten offerings;
(iv) enter into a securities sales agreement with the Holders
and an agent of the Holders providing for, among other things, the
appointment of such agent for the selling Holders for the purpose of
soliciting purchases of Registrable Securities, which agreement shall
be in form, substances and scope customary for similar offerings;
(v) if an underwriting agreement is entered into cause the same
to set forth indemnification provisions and procedures substantially
in the form customarily provided to such underwriters in similar types
of transactions; and
(vi) deliver such documents and certificates as may be
reasonably requested and as are customarily delivered in similar
offerings to the Holders of a majority in principal amount of the
Registrable Securities being sold and the managing underwriters, if
any.
15
The above shall be done at (i) the effectiveness of such Registration
Statement (and each post-effective amendment thereof) and (ii) each
closing under any underwriting or similar agreement as and to the
extent required thereunder;
(q) in the case of a Shelf Registration, make reasonably
available for inspection by representatives of the Holders of the
Registrable Securities and any underwriters participating in any
disposition pursuant to a Shelf Registration Statement and any counsel
or accountant retained by such Holders or underwriters at the offices
where normally kept, during the Operating Partnership's normal
business hours, all financial and other records, pertinent corporate
documents and properties of the Operating Partnership reasonably
requested by any such Persons and use its reasonable best efforts to
cause the respective officers, directors, employees and any other
agents of the Operating Partnership to supply all information
reasonably requested by any such representative, underwriter, special
counsel or accountant in connection with a Registration Statement, and
make such representatives of the Operating Partnership available for
discussion of such documents as shall be reasonably requested by the
Initial Purchasers; provided, however, that the foregoing inspection
-------- -------
and information gathering shall be coordinated on behalf of such
Holders and underwriters by one counsel and accountant designated by
or on behalf of such underwriters and by no more than one additional
counsel and accountant designated by or on behalf of such Holders. Any
records, documents or information which the Operating Partnership
determines, in good faith, to be confidential shall not be disclosed
by such Holders, underwriters or representatives unless (i) the
disclosure of such records, documents or information is necessary to
avoid or correct a material misstatement or omission in such
Registration Statement, (ii) the release of such records, documents 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, documents or
information previously has been made generally available to the
public; provided, however, that each selling Holder of such
-------- -------
Registrable Securities and any other relevant party participating in
such Registration Statement will be required to agree in writing with
the Operating Partnership that any records, documents or other
information obtained by it as a result of such inspections shall be
deemed confidential, shall not be communicated to any third party
(other than its agents and affiliates (who shall also be subject to
the confidentiality requirements of this paragraph) on a "need to
know" basis) and shall not be used by it as the basis for any market
transactions in the securities of the Operating Partnership or its
Affiliates unless and until such is made generally available to the
public; provided, further, that each selling Holder of such
-------- -------
Registrable Securities and any other relevant party participating in
such Registration Statement will be required to further agree in
writing with the Operating Partnership that such Person will, upon
learning that disclosure of such documents, records or information
deemed confidential by the Operating Partnership is sought in a court
of competent jurisdiction, or in connection with any action, suit or
proceeding, give notice to the Operating Partnership and allow the
Operating Partnership, at its expense, to undertake appropriate action
to prevent disclosure of any such documents, records or other
information deemed confidential;
16
(r) (i) in the case of an Exchange Offer, a reasonable time prior
to the filing of any Exchange Offer Registration Statement, any
Prospectus forming a part thereof, any amendment to an Exchange Offer
Registration Statement or amendment or supplement to such Prospectus,
provide copies of such document to the Initial Purchasers and make
such changes in any such document prior to the filing thereof as the
Initial Purchasers may reasonably request and, except as otherwise
required by applicable law, not file any such document in a form to
which the Initial Purchasers on behalf of the Holders of Registrable
Securities shall reasonably object, and make the representatives of
the Operating Partnership available for discussion of such documents
as shall be reasonably requested by the Initial Purchasers; and
(ii) in the case of a Shelf Registration, a reasonable time
prior to filing any Shelf Registration Statement, any Prospectus
forming a part thereof, any amendment to such Shelf Registration
Statement or amendment or supplement to such Prospectus, provide
copies of such document to the Holders of Registrable Securities,
to the Initial Purchasers, to counsel on behalf of the Holders
and to the underwriter or underwriters of an underwritten offering
of Registrable Securities, if any, make such changes in any such
document prior to the filing thereof as the Initial Purchasers, the
counsel to the Holders or the underwriter or underwriters reasonably
request and not file any such document in a form to which the Majority
Holders or the Initial Purchasers on behalf of the Holders of
Registrable Securities or any underwriter shall reasonably object;
provided, however, that any request for comments to or objections to
-------- -------
the filing of any such document shall be coordinated on behalf of such
Holders and underwriters by one counsel designated by or on behalf of
such underwriters and by no more than one additional counsel
designated by or on behalf of such Holders, and make the
representatives of the Operating Partnership available for discussion
of such document as shall be reasonably requested by the Holders of
Registrable Securities, the Initial Purchasers on behalf of such
Holders, or any underwriter.
(s) in the case of a Shelf Registration, use its reasonable best
efforts to cause all Registrable Securities to be listed on any securities
exchange on which similar debt securities issued by the Operating
Partnership are then listed if requested in writing by the Majority Holders
or by the underwriter or underwriters of an underwritten offering of
Registrable Securities, if any;
(t) in the case of a Shelf Registration, use its reasonable best
efforts to cause the Registrable Securities to be rated by the appropriate
rating agencies, if so requested in writing by the Majority Holders or by
the underwriter or underwriters of an underwritten offering of Registrable
Securities, if any;
(u) otherwise to comply with all applicable rules and regulations of
the SEC and make available to its security holders, as soon as reasonably
practicable, an earnings statement covering at least 12 months which shall
satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158
thereunder;
17
(v) cooperate and assist in any filings required to be made with the
NASD and, in the case of a Shelf Registration, in the performance of any
due diligence investigation by any underwriter and its counsel (including
any "qualified independent underwriter" that is required to be retained in
accordance with the rules and regulations of the NASD); and
(w) upon consummation of an Exchange Offer, obtain a customary opinion
of counsel to the Operating Partnership addressed to the Trustee for the
benefit of all Holders of Registrable Securities participating in the
Exchange Offer, and which includes an opinion that (i) the Operating
Partnership has duly authorized, executed and delivered the Exchange
Securities and the related indenture, and (ii) each of the Exchange
Securities and related indenture constitute a legal, valid and binding
obligation of the Operating Partnership, enforceable against the Operating
Partnership in accordance with its respective terms (with customary
exceptions).
In the case of a Shelf Registration Statement, the Operating
Partnership may (as a condition to such Holder's participation in the Shelf
Registration) require each Holder of Registrable Securities to furnish to the
Operating Partnership such information regarding the Holder and the proposed
distribution by such Holder of such Registrable Securities as the Operating
Partnership may from time to time reasonably request in writing for use in
connection with any Shelf Registration Statement or Prospectus included therein,
including, without limitation, information specified in item 507 of Regulation
S-K under the 1933 Act. Each Holder as to which any Shelf Registration is being
effected agrees to furnish promptly to the Operating Partnership all information
required to be disclosed with respect to such Holder in order to make any
information with respect to such Holder previously furnished to the Operating
Partnership by such Holder not materially misleading.
In the case of a Shelf Registration Statement, each Holder agrees
that, upon receipt of any notice from the Operating Partnership of the happening
of any event or the discovery of any facts, each of the kind described in
Section 3(e)(v) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to a Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 3(k) hereof, and, if so directed by the Operating Partnership, such
Holder will deliver to the Operating Partnership (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 any of the Registrable Securities covered by any Shelf Registration
Statement are to be sold in an underwritten offering, the underwriter or
underwriters and manager or managers that will manage such offering will be
selected by the Majority Holders of such Registrable Securities included in such
offering and shall be acceptable to the Operating Partnership. No Holder of
Registrable Securities may participate in any underwritten registration
hereunder unless such Holder (a) agrees to sell such Holder's Registrable
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes
and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements.
18
4. Indemnification; Contribution. (a) The Operating Partnership agrees to
-----------------------------
indemnify and hold harmless the Initial Purchasers, each Holder, each
Participating Broker-Dealer, each Person who participates as an underwriter (any
such Person being an "Underwriter") and each Person, if any, who controls any
Holder or Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act 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 any Registration Statement
(or any amendment or supplement thereto) pursuant to which Exchange
Securities or Registrable Securities were registered under the 1933 Act,
including all documents incorporated therein by reference, or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading, or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(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) below) any such settlement is effected with the written consent of the
Operating Partnership; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by any indemnified party as
provided herein), reasonably incurred in investigating, preparing to defend
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) above;
provided, however, that this indemnity agreement shall not apply to any loss,
-------- -------
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Operating
Partnership by the Initial Purchasers, any selling Holder or any Underwriter
expressly for use in a Registration Statement (or any amendment thereto) or any
Prospectus (or any amendment or supplement thereto).
(b) Each Holder severally, but not jointly, agrees to indemnify and hold
harmless the Operating Partnership, the Initial Purchasers, each Underwriter and
the other selling Holders, and each of their respective directors and officers,
and each Person, if any, who controls the Operating Partnership, the Initial
Purchasers, any Underwriter or any other selling Holder
19
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act,
against any and all loss, liability, claim, damage and expense 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 any
Prospectus included therein (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the Operating
Partnership expressly for use in the Shelf Registration Statement (or any
amendment thereto) or such Prospectus (or any amendment or supplement thereto);
provided, however, that no such 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 pursuant to such Shelf Registration Statement.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action or proceeding
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 hereunder to the extent it is not materially prejudiced
as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. 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 party or parties be liable
for the fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action of 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 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 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 60 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 45 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) If the indemnification provided for in this Section 4 is
for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect
20
the relative benefits received by the Operating Partnership on the one hand, the
Holders on another hand, and the Initial Purchasers on another hand, from the
offering of the Securities, the Exchange Securities and the Registrable
Securities (taken together) included in such offering or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Operating Partnership on the one
hand, the Holders on another hand and the Initial Purchasers on another hand in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Operating Partnership
from the offering of the Securities, the Exchange Securities and the Registrable
Securities (taken together) included in such offering shall in each case be
deemed to include the proceeds received by the Operating Partnership in
connection with the offering of the Securities pursuant to the Purchase
Agreement. Any underwriting discount or commission or reimbursement of fees paid
to the Initial Purchasers pursuant to the Purchase Agreement shall be deemed to
be a benefit received by the Initial Purchasers in connection with the offering
contemplated thereunder.
The relative fault of the Operating Partnership on the one
hand, the Holders on another hand, and the Initial Purchasers on another hand
shall be determined by reference to, among other things, whether any such untrue
or alleged untrue statement of a material fact or omission or alleged omission
to state a material fact relates to information supplied by the Operating
Partnership, the Holders or the Initial Purchasers and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Operating Partnership, the Holders and the Initial
Purchasers agree that it would not be just and equitable if contribution
pursuant to this Section 4 were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this Section 4. The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 4 shall be deemed to include any
legal and other expenses reasonably incurred by such indemnified party 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 or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 4, the Initial
Purchasers shall not be required to contribute any amount in excess of the
amount by which the total price at which the Securities sold by it were offered
exceeds the amount of any damages which such Initial Purchasers have otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission.
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 who was not guilty of such fraudulent misrepresentation.
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For purposes of this Section 4, each Person, if any, who controls an
Initial Purchasers or Holder within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Initial Purchasers or Holder, and each director of the Operating Partnership,
and each Person, if any, who controls the Operating Partnership within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as the Operating Partnership.
5. Miscellaneous.
-------------
5.1. Rule 144 and Rule 144A. For so long as the Operating Partnership is
----------------------
subject to the reporting requirements of Sections 13 or 15 of the 1934 Act, the
Operating Partnership covenants that it will file the reports required to be
filed by it under the 1933 Act and Sections 13(a) or 15(d) of the 1934 Act and
the rules and regulations adopted by the SEC thereunder. If the Operating
Partnership ceases to be so required to file such reports, the Operating
Partnership covenants that it will upon the request of any Holder of Registrable
Securities (a) make publicly available such information as is necessary to
permit sales pursuant to Rule 144 under the 1933 Act, (b) deliver such
information to a prospective purchaser as is necessary to permit sales pursuant
to Rule 144A under the 1933 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 1933 Act within the limitation of the exemptions provided
by (i) Rule 144 under the 1933 Act, as such Rule may be amended from time to
time, (ii) Rule 144A under the 1933 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 Operating
Partnership will deliver to such Holder a written statement as to whether it has
complied with such requirements.
5.2. No Inconsistent Agreements. The Operating Partnership has not entered
--------------------------
into and the Operating Partnership will not after the date of this Agreement
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 the rights granted to the holders of the Operating
Partnership's other issued and outstanding securities under any such agreements.
5.3. 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 Operating Partnership has obtained the written consent of
Holders of at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement,
waiver or departure.
5.4. 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 (a) if to a Holder, at the most current address given by such Holder to
the Operating Partnership by means of a notice given in accordance with the
provisions of this Section 5.4, which address initially is the address set forth
in the Purchase Agreement with respect to the Initial Purchasers; and (b) if to
the Operating Partnership initially
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at the Operating Partnership's address set forth in the Purchase Agreement, and
thereafter at such other address of which notice is given in accordance with the
provisions of this Section 5.4.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; two 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.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person given the same to the Trustee under the
Indenture, at the address specified in such Indenture.
5.5. Successor and Assigns. This Agreement shall inure to the benefit of
---------------------
and be binding upon the successors, assigns and transferees of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders; provided 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. 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 any 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, including
the restrictions on resale set forth in this Agreement and, if applicable, the
Purchase Agreement, and such Person shall be entitled to receive the benefits
hereof.
5.6. Third Party Beneficiaries. The Initial Purchasers (even if the Initial
-------------------------
Purchasers are not Holders of Registrable Securities) shall be third party
beneficiaries to the agreements made hereunder between the Operating
Partnership, on the one hand, and the Holders, on the other hand, and shall have
the right to enforce such agreements directly to the extent they deem such
enforcement necessary or advisable to protect their rights or the rights of
Holders hereunder. Each Holder of Registrable Securities shall be a third party
beneficiary to the agreements made hereunder between the Operating Partnership,
on the one hand, and the Initial Purchasers, on the other hand, and shall have
the right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights hereunder.
5.7. 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.
5.8. Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
5.9. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
-------------
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS THEREOF.
23
5.10. 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
CP LIMITED PARTNERSHIP
By: Chateau Communities, Inc.
(one of its general partners)
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
and Chief Financial Officer
By: ROC Communities, Inc.
(its other general partner)
By:/s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
and Chief Financial Officer
Confirmed and accepted as of the date first above written:
BANC ONE CAPITAL MARKETS, INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
UBS WARBURG LLC
X.X. XXXXXXX & SONS, INC.
By: Banc One Capital Markets, Inc.
By: /s/ Xxxxxxxx Xxxxx
-----------------------------------
Authorized Signatory
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Exhibit A
Form of Opinion of Counsel
We are of the opinion that the Exchange Offer Registration
Statement and the Prospectus (other than the financial statements, notes or
schedules thereto and other financial data and supplemental schedules included
or incorporated by reference therein or omitted therefrom and the Form T-1, as
to which we need express no opinion), comply as to form in all material respects
with the requirements of the 1933 Act and the applicable rules and regulations
promulgated under the 1933 Act.
In addition, we have participated in the preparation of the
Registration Statement and the Prospectus and in conferences with officers and
other representatives of the Operating Partnership, representatives of the
independent public accountants of the Operating Partnership and representatives
of the Initial Purchasers, at which the contents of the Registration Statement
and the Prospectus and related matters were discussed and we have reviewed
certain corporate records, documents and proceedings and, on the basis of the
foregoing, nothing has come to our attention that leads us to believe that the
Registration Statement or any amendment thereto, at the time such Registration
Statement or any such amendment became effective, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or that the
Prospectus, as of its date or the date hereof, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading (it being understood that we express
no belief with respect to the financial statements and schedules and other
financial data included or incorporated by reference in or excluded from the
Registration Statement or the Prospectus).
The limitations inherent in the independent verification of
factual matters and the character of determinations involved in the preparation
of a disclosure document are such, however, that we do not assume any
responsibility for the accuracy, completeness, or fairness of the statements
contained in the Registration Statement or the Prospectus or any amendments or
supplements thereto (including any of the documents incorporated by reference
therein).
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