REGISTRATION RIGHTS AGREEMENT
BY AND BETWEEN
GMH COMMUNITIES TRUST,
GMH COMMUNITIES, LP,
GMH COMMUNITIES GP, LLC,
XXXX X. XXXXXXXX
AND
VORNADO REALTY L.P.
DATED AS OF JULY 27, 2004
TABLE OF CONTENTS
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ARTICLE I
CERTAIN DEFINITIONS
ARTICLE II
ISSUANCE REGISTRATION
Section 2.1 Issuance Registration.............................................4
ARTICLE III
REGISTRATION REQUEST
Section 3.1 Request...........................................................4
Section 3.2 Other Company Shares..............................................6
Section 3.3 Other Investor Shares.............................................6
ARTICLE IV
INCIDENTAL REGISTRATION
Section 4.1 Notice and Registration...........................................6
Section 4.2 Registration Expenses.............................................7
Section 4.3 Shelf Registration Statement......................................7
ARTICLE V
REGISTRATION PROCEDURES
Section 5.1 Registration and Qualification....................................8
Section 5.2 Underwriting.....................................................11
Section 5.3 Blackout Periods.................................................12
Section 5.4 Qualification for Rule 144 Sales.................................12
ARTICLE VI
PREPARATION; REASONABLE INVESTIGATION
Section 6.1 Preparation; Reasonable Investigation............................13
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ARTICLE VII
INDEMNIFICATION AND CONTRIBUTION
Section 7.1 Indemnification..................................................13
ARTICLE VIII
BENEFITS OF REGISTRATION RIGHTS
Section 8.1 Benefits of Registration Rights..................................16
Section 8.2 General Partner of the Partnership...............................16
ARTICLE IX
MISCELLANEOUS
Section 9.1 No Inconsistent Agreements.......................................17
Section 9.2 No Adverse Action Affecting the Eligible Securities..............17
Section 9.3 Captions.........................................................17
Section 9.4 Severability.....................................................17
Section 9.5 Governing Law....................................................18
Section 9.6 Modification and Amendment.......................................18
Section 9.7 Counterparts.....................................................18
Section 9.8 Entire Agreement.................................................18
Section 9.9 Notices..........................................................18
Section 9.10 Specific Performance............................................18
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REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT is made as of the 27th day of July,
2004 (this "Agreement"), among GMH COMMUNITIES TRUST, a Maryland real estate
investment trust (the "Company"), GMH COMMUNITIES, LP, a Delaware limited
partnership (the "Partnership"), GMH COMMUNITIES GP, LLC, a Delaware limited
liability company and the sole general partner of the Partnership (together with
any successor to general partner of the Partnership "GMH GP"), XXXX X. XXXXXXXX,
VORNADO REALTY L.P., a Delaware limited partnership ("VRLP"), and the Permitted
Transferees (as defined below) of VRLP (such entities or Permitted Transferees
are sometimes referred to herein individually as an "Investor" and collectively
as the "Investors").
W I T N E S S E T H:
WHEREAS, VRLP is receiving on the date hereof a Warrant issued by the
Company, the Partnership and GMH GP entitling it to acquire, among other things,
shares of the Company and limited partnership interests in the Partnership (the
"Common Units"), which Common Units may be exchanged for common shares of
beneficial interest of the Company (the "Common Shares") pursuant to certain
exchange rights to be set forth in the Partnership Agreement of the Limited
Partnership; and
WHEREAS, the Company has agreed to provide to the Investor certain
registration rights as set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and subject to and
on the terms and conditions herein set forth, the parties hereto agree as
follows:
ARTICLE I
CERTAIN DEFINITIONS
I.1. "Agreement" is defined in the first paragraph of this
Agreement.
I.2. "Blackout Termination Right" is defined in Section 5.3(b)
hereof.
I.3. "Business Day" means any day on which the New York Stock
Exchange or such other exchange as the Common Shares are listed is open
for trading.
I.4. "Company" is defined in the first paragraph of this
Agreement and shall include any entity that becomes the general partner
of the Partnership in connection with the establishment of an "UPREIT"
structure.
I.5. "Effectiveness Period" is defined in Section 4.3 hereof.
I.6. "Eligible Securities" means all or any portion of the
Common Shares acquired or that may be acquired by an Investor upon
exercise of the Warrant or redemption or exchange of the Common Units,
whether such Shares or Units are newly issued or acquired directly or
indirectly from Xxxx X. Xxxxxxxx. As to any proposed offer or sale of
Eligible Securities, such securities shall cease to be Eligible
Securities with respect to such proposed offer or sale when (i) a
registration statement (other than a registration statement filed
pursuant to Article II) with respect to the sale of such securities
shall have become effective under the Securities Act and such
securities shall have been disposed of in accordance with such
registration statement or (ii) such securities are permitted to be
disposed of pursuant to Rule 144(k) (or any successor provision to such
Rule) under the Securities Act as confirmed in a written opinion of
counsel to the Company addressed to the Investors, (iii) such
securities shall have been otherwise transferred pursuant to Rule 144
(or any successor rule) or pursuant to another applicable exemption
under the Securities Act, new certificates for such securities not
bearing a legend restricting further transfer shall have been delivered
by the Company and such securities shall be freely transferable to the
public without registration under the Securities Act or (iv) such
securities are no longer outstanding.
I.7. "GMH GP" is defined in the first paragraph of this
Agreement and includes any Person that succeeds as general partner of
the Partnership.
I.8. "Information Blackout" is defined in Section 5.3(a) hereof.
I.9. "Investor" means any of VRLP and any of its Permitted
Transferees.
I.10. "IPO" means the Company's initial public offering of
Common Shares and any other capital stock of the Company offered
simultaneously with the Common Shares.
I.11. "IPO Date" means the date of the final prospectus used by
the Company in the IPO.
I.12. "Participating Investor" is defined in Section 3.3 hereof.
I.13. "Partnership" is defined in the first paragraph of this
Agreement.
I.14. "Partnership Agreement" means that certain Amended and
Restated Agreement of Limited Partnership of GMH Communities, LP, dated
July 20, 2004.
I.15. "Person" means an individual, a partnership (general or
limited), corporation, real estate investment trust, joint venture,
business trust, cooperative, limited liability company, association or
other form of business organization, whether or not regarded as a legal
entity under applicable law, a trust (inter vivos
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or testamentary), an estate of a deceased, insane or incompetent
person, a quasi-governmental entity, a government or any agency,
authority, political subdivision or other instrumentality thereof, or
any other entity.
I.16. "Permitted Transferees" means any affiliate of VRLP and
any Persons to whom Permitted Transfers may be made under the
Partnership Agreement or that are a permitted transferee of Common
Shares or Common Units under the warrant issued by the Company as of
the date hereof.
I.17. "VRLP" is defined in the first paragraph of this
Agreement.
I.18. "Registration Expenses" means all expenses incident to the
Company's performance of or compliance with the registration
requirements set forth in this Agreement including, without limitation,
the following: (i) the fees, disbursements and expenses of the
Company's counsel(s) (United States and foreign), accountants, experts
and other persons retained by the Company in connection with the
registration, offering and sale of Eligible Securities to be disposed
of under the Securities Act; (ii) all expenses in connection with the
preparation, printing and filing of the registration statement, any
preliminary prospectus or final prospectus, any other offering document
and amendments and supplements thereto and the mailing and delivering
of copies thereof to the underwriters and dealers; (iii) the cost of
printing or producing any agreement(s) among underwriters, underwriting
agreement(s) and blue sky or legal investment memoranda, any selling
agreements and any other documents in connection with the offering,
sale or delivery of Eligible Securities to be disposed of; (iv) all
expenses in connection with the qualification of Eligible Securities to
be disposed of for offering and sale under state securities laws,
including the fees and disbursements of counsel for the underwriters in
connection with such qualification and in connection with any blue sky
and legal investment surveys; (v) the filing fees incident to securing
any required review by the National Association of Securities Dealers,
Inc. of the terms of the sale of Eligible Securities to be disposed of;
(vi) SEC and blue sky registration fees attributable to Eligible
Securities; (vii) fees and expenses incurred in connection with the
listing of Eligible Securities on each securities exchange or quotation
system on which the Common Shares are then listed; (viii) the
reasonable fees and disbursements incurred by the Selling Investors in
connection with the offering and sale of Eligible Securities
(including, without limitation, the reasonable fees and disbursements
for one counsel or firm selected by VRLP); provided, however, that
Registration Expenses with respect to any registration pursuant to this
Agreement shall not include underwriting discounts or commissions
attributable to Eligible Securities, or transfer taxes applicable to
Eligible Securities.
I.19. "Requesting Investor" means an Investor requesting
registration of its Eligible Securities in accordance with the terms
hereof.
I.20. "Sales Blackout Period" is defined in Section 5.3(a)(iii)
hereof.
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I.21. "SEC" means the United States Securities and Exchange
Commission.
I.22. "Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations of the SEC thereunder, all as
the same shall be in effect at the relevant time.
I.23. "Selling Investor" means the Requesting Investor and each
Investor who has requested registration pursuant to Section 3 or 4
hereof, as applicable.
I.24. "Shelf Registration Statement" is defined in Section 4.3
hereof.
I.25. "Twelve Month Date" means the date that is twelve months
after the IPO Date, and if such date is not a Business Day, the next
succeeding date that is a Business Day.
ARTICLE II
ISSUANCE REGISTRATION
Section 2.1 Issuance Registration. In the event that the Warrant is
exercised for Common Units, then the Company, to the extent permitted by
applicable rules and regulations promulgated by the SEC, shall file a
registration statement with the SEC on the appropriate form for a continuous
offering to be made pursuant to Rule 415 providing for the delivery to the
Investors of Common Shares issued pursuant to such registration statement upon
the tendering of such Common Units for redemption or exchange. The Company will
use commercially reasonable best efforts to effect (at the earliest possible
date) the registration, under the Securities Act, of such Common Shares. If such
registration statement ceases to be effective for any reason at any time prior
to the delivery of all Common Shares registered thereunder, then the Company
shall use its best efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof. The Company shall be responsible for all
Registration Expenses in connection with any registration pursuant to this
Article II. The Company shall promptly supplement and amend such registration
statement and the prospectus included therein if required by the rules,
regulations or instructions applicable to the registration statement used for
such registration statement or by the Securities Act. Any registration statement
filed pursuant to this Article II shall not eliminate any right to registration
provided under other sections of this Agreement.
ARTICLE III
REGISTRATION REQUEST
Section 3.1 Request. Upon written request from an Investor requesting
that the Company effect the registration under the Securities Act of all or part
of the Eligible Securities held by such Investor, which notice may be delivered
at any
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time and which notice shall specify the intended method or methods of
disposition of such Eligible Securities, the Company will use its reasonable
best efforts to effect (at the earliest possible date) the registration, under
the Securities Act, of such Eligible Securities for disposition in accordance
with the intended method or methods of disposition stated in such request;
provided that:
a. if the Company shall have previously effected a registration with
respect to Eligible Securities pursuant to Article IV hereof, the Company
shall not be required to effect a registration pursuant to this Article III
until a period of one hundred twenty (120) days shall have elapsed from the
effective date of the most recent such previous registration;
b. if, while a registration request is pending pursuant to this
Article III, the Company determines in the good faith judgment of the Board
of Trustees of the Company, with the advice of counsel, which determination
shall be made not more than seven Business Days after receipt by the
Company of the registration request, that the filing of a registration
statement would require the disclosure of non-public material information
the disclosure of which would have a material adverse effect on the
Company, the Company shall deliver a certificate to such effect signed by
its Chief Executive Officer, President, or any Executive Vice President to
the Investors, and the Company shall not be required to effect a
registration pursuant to this Article III until the earlier of (i) the date
upon which such material information is disclosed to the public or ceases
to be material or (ii) 30 days after the Company makes such good faith
determination; provided, that only one such certificate may be delivered in
connection with the filing of any registration statement; and
c. the Company shall not be required to effect (i) more than two
registrations pursuant to this Article III in any calendar year and (ii) a
registration of Eligible Securities, the Fair Market Value of which on the
date of the registration request is less than $2,500,000. No registration
of Eligible Securities under this Article III shall relieve the Company of
its obligation (if any) to effect registrations of Eligible Securities
pursuant to Article II or IV hereof.
d. the Company shall not be required to effect a registration pursuant
to this Article III during the period that ends six (6) months prior to the
date on which Xxxx X. Xxxxxxxx is prevented from disposing of any
securities of the Company beneficially owned by him pursuant to the
underwriters' "lock-up" set forth in the underwriting agreement used for
the Company's initial public offering; provided, however that in the event
that the underwriters' waive such lock-up then the period of time during
which the Company is not required to effect a registration pursuant to
Article III shall be similarly reduced; provided further that Xxxx X.
Xxxxxxxx agrees that in no event shall he sell or offer to sell publicly or
privately any securities of the Company beneficially owned by him for a
period of six consecutive months following the period during which the
Company is not required to effect a registration pursuant to this Article
III.
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Section 3.2 Other Company Shares. In no event shall the Company agree
to register Common Shares or any other securities for issuance by the Company or
for resale by any Persons other than the Investors in any registration statement
filed pursuant to this Article III, without the express written consent of VRLP,
which consent shall be entirely discretionary.
Section 3.3 Other Investor Shares. Upon receipt of written notice from
a Requesting Investor, the Company shall give written notice to each other
Investor of the receipt of notice from the Requesting Investor. The Company
shall include in any registration statement filed pursuant to this Article III
the Eligible Securities of any other Investor (a "Participating Investor") who
has delivered written notice to the Company within 15 Business Days of the date
of receipt by such Participating Investor of the above-referenced written notice
from the Company. A notice from a Participating Investor under this Section 3.3
shall specify the number of Eligible Securities to be included in the
registration statement and the intended method of disposition.
ARTICLE IV
INCIDENTAL REGISTRATION
Section 4.1 Notice and Registration. If the Company proposes to
register any Common Shares, any equity securities exercisable for, convertible
into or exchangeable for Common Shares, or other securities issued by it having
terms substantially similar to Eligible Securities ("Other Securities") for
public sale under the Securities Act (whether proposed to be offered for sale by
the Company or by any other Person) on a form and in a manner which would permit
registration of Eligible Securities for sale to the public under the Securities
Act, it will give prompt written notice to the Investors of its intention to do
so, and upon the written request of any Investor delivered to the Company within
fifteen (15) Business Days after the giving of any such notice (which request
shall specify the number of Eligible Securities intended to be disposed of by
the Investor and the intended method of disposition thereof), the Company will
use commercially reasonable best efforts to effect, in connection with the
registration of the Other Securities, the registration under the Securities Act
of all Eligible Securities which the Company has been so requested to register
by the Selling Investor(s), to the extent required to permit the disposition (in
accordance with the intended method or methods thereof as aforesaid) of Eligible
Securities so to be registered; provided that:
a. if, at any time after giving such written notice of its intention
to register any Other Securities and prior to the effective date of the
registration statement filed in connection with such registration, the
Company shall determine for any reason not to register the Other
Securities, the Company may, at its election, give written notice of such
determination to the Selling Investors and thereupon the Company shall be
relieved of its obligation to register such Eligible Securities in
connection with the registration of such Other Securities (but not from its
obligation to pay Registration Expenses to the extent incurred in
connection therewith as provided in Section 4.2 hereof), without prejudice,
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however, to the rights (if any) of the Selling Investors immediately to
request that such registration be effected as a registration under Article
III hereof;
b. The Company shall not be required to effect any registration of
Eligible Securities under this Article IV incidental to the registration of
any of its securities in connection with mergers, acquisitions, exchange
offers, subscription offers, dividend reinvestment plans or share options
or other employee benefit plans.
c. Notwithstanding any request under Section 4.1(a) hereof, a Selling
Investor may elect in writing prior to the effective date of a registration
under this Article IV, not to register its Eligible Securities in
connection with such registration.
d. No registration of Eligible Securities effected under this Article
IV shall relieve the Company of its obligation (if any) to effect
registration of Eligible Securities pursuant to Article II or III hereof.
e. None of the Company, the Partnership or GMH GP shall enter into any
agreement that limits the ability of Investors to include Eligible
Securities in any registration statement to be filed by the Company.
f. The Company will not be required to effect any registration
pursuant to this Section 4.1 if the Company shall have been advised in
writing (with a copy to the Selling Investors) by a nationally recognized
independent investment banking firm selected by the Company to act as lead
underwriter in connection with the pubic offering of securities by the
Company that, in such firm's opinion, a registration of Eligible Securities
requested to be registered at that time would materially and adversely
affect the Company's own scheduled offering of securities; provided,
however, that if an offering of some but not all of the Eligible Securities
requested to be registered by the Investor(s) would not materially
adversely affect the Company's offering of securities, the aggregate number
of Eligible Securities requested to be included in such offering by the
Investors shall be reduced pro rata according to the total number of
Eligible Securities requested to be registered by such Persons.
Section 4.2 Registration Expenses. The Company shall be responsible
for the payment of all Registration Expenses in connection with any registration
pursuant to this Article IV.
Section 4.3 Shelf Registration Statement.
(a) Shelf Registration Statement. The Company shall as promptly as
reasonably practicable subsequent to the Twelve Month Date file with the SEC a
registration statement for an offering to be made on a continuous basis pursuant
to Rule 415 covering all of the Eligible Securities (the "Shelf Registration
Statement"). The Shelf Registration Statement shall be on the appropriate form
permitting registration of
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such Eligible Securities for resale by Investors in the manner or manners
designated by them (including, without limitation, one ore more underwritten
offerings). The Company will notify each Investor when such Shelf Registration
Statement has become effective.
The Company shall use its best efforts to cause the Shelf Registration
Statement to be declared effective under the Securities Act as promptly as
practicable after the filing of the Shelf Registration Statement and (subject to
compliance with the restrictions on registrations set forth in Articles III and
IV hereof which shall be applicable with respect to the Shelf Registration) to
keep the Shelf Registration Statement continuously effective under the
Securities Act until the date ("Effectiveness Period") when all Eligible
Securities covered by the Shelf Registration Statement have been sold in the
manner set forth and as contemplated in the Shelf Registration Statement.
(b) Withdrawal of Stop Orders. If the Shelf Registration Statement
ceases to be effective for any reason at any time during the Effectiveness
Period (other than because of the sale of all of the securities registered
thereunder), the Company shall use its best efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof.
(c) Supplement and Amendments. The Company shall promptly supplement
and amend the Shelf Registration Statement and the prospectus included therein
if required by the rules, regulations or instructions applicable to the
registration form used for such Shelf Registration Statement or by the
Securities Act.
(d) Other Shares. In no event shall the Company agree to register
Common Shares or any other securities for issuance by the Company or resale by
any Persons other than the Investors in any registration statement filed
pursuant to this Section 4.3 without the express written consent of VRLP, which
consent shall be entirely discretionary.
ARTICLE V
REGISTRATION PROCEDURES
Section 5.1 Registration and Qualification. If and whenever the
Company is required to use all commercially reasonable best efforts to effect
the registration of any Eligible Securities under the Securities Act as
provided in Articles II, III or IV hereof, the Company will, as promptly as is
practicable:
a. prepare, file and use all commercially reasonable best efforts to
cause to become effective and its best efforts to remain continuously
effective a registration statement under the Securities Act regarding the
Eligible Securities to be offered;
b. prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective and to
comply with
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the provisions of the Securities Act with respect to the disposition of all
Eligible Securities until such time as all of such Eligible Securities have
been disposed of in accordance with the intended methods of disposition by
the Selling Investors set forth in such registration statement;
c. furnish to the Selling Investors and to any underwriter of such
Eligible Securities such number of conformed copies of such registration
statement and of each such amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus included
in such registration statement (including each preliminary prospectus and
any summary prospectus), in conformity with the requirements of the
Securities Act, such documents incorporated by reference in such
registration statement or prospectus, and such other documents as the
Selling Investors or such underwriter may reasonably request;
d. use all commercially reasonable best efforts to register or qualify
all Eligible Securities covered by such registration statement under such
other securities or blue sky laws of such jurisdictions as the Selling
Investors or any underwriter of such Eligible Securities shall be
reasonably request, and do any and all other acts and things which may be
reasonably requested by the Selling Investors or any underwriter to
consummate the disposition in such jurisdictions of the Eligible Securities
covered by such registration statement, except the Company shall not for
any such purpose be required to qualify generally to do business as a
foreign corporation in any jurisdiction wherein it is not so qualified, or
to subject itself to taxation on its income in any jurisdiction where it is
not then subject to taxation, or to consent to general service of process
in any jurisdiction where it is not then subject to service of process;
e. use all commercially reasonable best efforts to list the Eligible
Securities on each national securities exchange or quotation system on
which the Common Shares are then listed, if the listing of such securities
is then permitted under the rules of such exchange;
f. (i) furnish to the Selling Investors opinions of counsel for the
Company, addressed to them, dated the date of the closing under the
underwriting agreement, (ii) upon such Selling Investor's request, to
furnish to the Selling Investors a "comfort letter" signed by the
independent public accountants who have audited the Company's financial
statements included in such registration statement, addressed to them and,
subject to the Selling Investors providing to the independent public
accountants such information and representations as reasonably requested by
such independent public accountants to render such "comfort letter";
provided that with respect to such opinion and "comfort letter," the
following shall apply: (A) the opinion and "comfort letter" shall cover
substantially the same matters with respect to such registration statement
(and the prospectus included therein) as are customarily covered in
opinions of issuer's counsel and in accountants' letter delivered to
underwriters in underwritten public
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offerings of securities and such other matters as the Selling Investors may
reasonably request; and (B) the "comfort letter" also shall cover events
subsequent to the date of such financial statements and (iii) furnish to
the Selling Investors such other certificates and documents, dated the date
of closing under the underwriting agreement, as are customarily delivered
at closing;
g. notify the Selling Investors immediately and, if requested by any
such person, confirm such notice in writing:
(i) (A) when a prospectus or any prospectus supplement or
post-effective amendment is proposed to be filed in respect of a
registration statement filed pursuant to this Agreement, and (B) with
respect to such registration statement or any post-effective amendment
thereto, when the same has become effective;
(ii) of any written comments from the SEC with respect to any
filing and of any request by the SEC or any other federal or state
governmental authority for amendments or supplements to such
registration statement or related prospectus or for additional
information related thereto;
(iii) of the issuance by the SEC, any state securities
commission, any other governmental agency or any court of any stop
order, order or injunction suspending or enjoining the use or
effectiveness of any registration statement filed pursuant to this
Agreement or the initiation of any proceedings for that purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of qualification or exemption from
qualification of any of the Eligible Securities for sale in any
jurisdiction, or the initiation or threatening of any proceeding for
such purpose;
(v) of the existence of, any fact or the happening of any event
that makes any statement of material fact made in any registration
statement filed pursuant to this Agreement or related prospectus untrue
in any material respect, or that requires the making of any changes in
such registration statement or prospectus so that, in the case of the
registration statement, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and
that, in the case of the prospectus, such prospectus will not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; and
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(vi) of the determination by the Company that a post-effective
amendment to a registration statement filed pursuant to this Agreement
will be filed with the SEC; and
h. upon the occurrence of any event contemplated by Section 5.1 (g)(v)
hereof, at the request of a Selling Investor, prepare and furnish to the
Selling Investors as many copies as requested of a supplement or amendment,
including, if appropriate, a post-effective amendment to the registration
statement or a supplement to the related prospectus or any document
incorporated or deemed to be incorporated therein by reference, and file
any other required document so that, as thereafter delivered, such
prospectus will not 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, in light of the circumstances under which they were
made, not misleading.
The Company may require the Selling Investors to furnish the Company such
information regarding the Selling Investors and the distribution of such
securities as the Company may from time to time reasonably request in writing
and as shall be required by law or by the SEC in connection with any
registration.
Section 5.2 Underwriting. (a) As determined by the Selling Investors,
the Company and the Partnership shall be required to participate in underwritten
offerings to effect the disposition of Eligible Securities. If requested by the
underwriters for any underwritten offering of Eligible Securities pursuant to a
registration described in this Agreement, the Company and the Partnership will
enter into and perform their obligations under an underwriting agreement with
such underwriters for such offering, such agreement to contain such
representations and warranties by the Company and the Partnership and such other
terms and provisions as are customarily contained in underwriting agreements
with respect to secondary distributions, including, without limitation,
indemnities and contribution to the effect and to the extent provided in Article
VII hereof and the provision of opinions of counsel and accountants' letters to
the effect and to the extent provided in Section 5.1(f) hereof. The holders of
Eligible Securities on whose behalf Eligible Securities are to be distributed by
such underwriters shall be parties to any such underwriting agreement and the
representations and warranties by, and the other agreements on the part of, the
Company to and for the benefit of such underwriters shall also be made to and
for the benefit of such holders of Eligible Securities.
(b) In the event that any registration pursuant to Section 4.1 hereof
shall involve, in whole or in part, an underwritten offering, the Company may
require Eligible Securities requested to be registered pursuant to Article IV
hereof to be included in such underwriting on the same terms and conditions as
shall be applicable to the Other Securities being sold through underwriters
under such registration. In such case, the holders of Eligible Securities on
whose behalf Eligible Securities are to be distributed by such underwriters
shall be parties to any such underwriting agreement. Such agreement shall
contain such representations and warranties by the Company and the Selling
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Investors and such other terms and provisions as are customarily contained in
underwriting agreements with respect to secondary distributions, including,
without limitation, indemnities and contribution to the effect and to the extent
provided in Article VII hereof. The representations and warranties in such
underwriting agreement by, and the other agreements on the part of, the Company
to and for the benefit of such underwriters shall also be made to and for the
benefit of such holders of Eligible Securities.
Section 5.3 Blackout Periods. (a) At any time when a registration
statement effected pursuant to Article III hereof relating to Eligible
Securities is effective, upon written notice from the Company to the Selling
Investors that the Company determines in the good faith judgment of the Board
Trustees of the Company, with the advice of counsel, that the Selling Investors'
sale of Eligible Securities pursuant to the registration statement would require
disclosure of non-public material information the disclosure of which would have
a material adverse effect on the Company (an "Information Blackout"), the
Selling Investors shall suspend sales of Eligible Securities pursuant to such
registration statement until the earliest of:
(i) the date upon which such material information is disclosed
to the public or ceases to be material;
(ii) 30 days after the Company makes such a good faith
determination; and
(iii) such time as the Company notifies the Selling Investors
that sales pursuant to such registration statement may be resumed.
(The number of days from such suspension of sales by the Selling Investors until
the day when such sales maybe resumed under clause (i), (ii) or (iii) hereof is
hereinafter called a "Sales Blackout Period".) In no event may the Company
deliver more than one notice of an Information Blackout in any 180 consecutive
day period.
(b) Any delivery by the Company of a written notice of an Information
Blackout during the 120 days immediately following effectiveness of any
registration statement effected pursuant to Article III hereof shall give the
Investors the right, by written notice to the Company within 20 Business Days
after the end of such Sales Blackout Period, to cancel such registration and
obtain one additional registration right during such calendar year (a "Blackout
Termination Right") under Article III hereof.
Section 5.4 Qualification for Rule 144 Sales. The Company will take
all actions necessary to comply with the filing requirements described in Rule
144(c)(1) so as to enable the Investors to sell Eligible Securities without
registration under the Securities Act and, upon the written request of any
Investor, the Company will deliver to such Investor a written statement as to
whether it has complied with such filing requirements.
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ARTICLE VI
PREPARATION; REASONABLE INVESTIGATION
Section 6.1 Preparation; Reasonable Investigation. In connection with
the preparation and filing of each registration statement registering Eligible
Securities under the Securities Act, the Company will give the Selling Investors
and the underwriters, if any, and their respective counsel and accountants,
drafts of such registration statement for their review and comment prior to
filing and such reasonable and customary access to its books and records and
such opportunities to discuss the business of the Company with its officers,
counsel and the independent public accountants who have certified its financial
statements as shall be necessary, in the opinion of the Selling Investors and
such underwriters or their respective counsel, to conduct a reasonable
investigation within the meaning of the Securities Act.
ARTICLE VII
INDEMNIFICATION AND CONTRIBUTION
Section 7.1 Indemnification. (a) In the event of any registration of
Eligible Securities hereunder, the Company and the Partnership jointly and
severally will, and hereby do, indemnify and hold harmless, each Selling
Investor, its respective directors, trustees, officers, partners, agents,
employees and affiliates and each other person who participates as an
underwriter in the offering or sale of such securities and each other Person, if
any, who controls each such Selling Investor or any such underwriter within the
meaning of the Securities Act, against any and all losses, claims, damages,
expenses or liabilities, joint or several, actions or proceedings (whether
commenced or threatened) in respect thereof, to which each such indemnified
party may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages, expenses or liabilities (or actions or proceedings,
whether commenced or threatened, in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such securities were
registered under the Securities Act, any preliminary prospectus, final
prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein in light of the circumstances in which they were made not misleading,
and the Company and the Partnership will reimburse each such Selling Investor
and each such director, trustee, officer, partner, agent, employee or affiliate,
underwriter and controlling person for any legal or any other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, expense, liability, action, or proceeding; provided,
however, that the Company and the Partnership shall not be liable in any such
case to the extent that any such loss, claim, damage, expense or liability (or
action or proceeding in respect thereof) arises out of or is based upon an
untrue statement or alleged untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement, any such
preliminary prospectus, final prospectus,
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summary prospectus, amendment or supplement in reliance upon and in conformity
with written information on furnished to the Company through an instrument duly
executed by or on behalf of such Selling Investor or underwriter specifically
stating that it is for use in the preparation thereof.
(b) Each Selling Investor severally will, and hereby does, indemnify
and hold harmless the Company, its trustees, its officers who sign the
registration statement, each person who participates as an underwriter in the
offering or sale of such securities, and each Person, if any, who controls the
Company within the meaning of the Securities Act against any and all losses,
claims, damages, expenses or liabilities, joint or several, actions or
proceedings (whether commenced or threatened) in respect thereof, to which each
such indemnified party may become subject under the Securities Act or otherwise
insofar as such losses, claims, damages, expenses or liabilities (or actions or
proceedings, whether commenced or threatened in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact in or omission or alleged omission to state a material fact in such
registration statement, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, but only
to the extent that such statement or omission was made in reliance upon and, in
conformity with written information furnished by such Selling Investor to the
Company through an instrument duly executed by or on behalf of such Selling
Investor specifically stating that it is for use in preparation thereof.
(c) Promptly after receipt by any indemnified party hereunder of
notice of the commencement of any action or proceeding involving a claim
referred to in paragraphs (a) or (b) of this Section 7.1, the indemnified party
will notify the indemnifying party in writing of the commencement thereof; but
the omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability which it may have to any indemnified party
under paragraphs (a) or (b) of this Section 7.1.
(d) If for any reason the indemnity under this Section 7.1 is
unavailable or is insufficient to hold harmless any indemnified party under
paragraphs (a) or (b) of this Section 7.1, then the indemnifying parties shall
contribute to the amount paid or payable to the indemnified party as a result of
any loss, claim, expense, damage or liability (or actions or proceedings,
whether commenced or threatened, in respect thereof), and legal or other
expenses reasonably incurred by the indemnified party in connection with
investigating or defending any such loss, claim, expense, damage, liability,
action or proceeding, in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and the indemnified
party on the other. The relative fault 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 or the Selling Investor and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. If, however, the allocation provided
in the second preceding sentence is not permitted by applicable law, or if the
allocation provided in the second preceding sentence provides a lesser sum to
the
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indemnified party than the amount hereinbefore calculated, then the indemnifying
party shall contribute to the amount paid or payable by the indemnified party in
such proportion as is appropriate to reflect not only such relative fault but
also the relative benefits of the indemnifying party and the indemnified party
as well as any other relevant equitable considerations. The parties hereto agree
that it would not be just and equitable if contributions pursuant to this
paragraph (d) of Section 7.1 were to be determined by pro rata allocation or by
any other method of allocation which does not take account of the equitable
considerations referred to in the preceding sentences of this paragraph (d) of
Section 7.1.
(e) Notwithstanding any other provision of this Section 7.1, to the
extent that any director, trustee, officer, partner, agent, employee, affiliate,
or other representative (current or former) of any indemnified party is a
witness in any action or proceeding, the indemnifying party agrees to pay to the
indemnified party all expenses reasonably incurred by, or on the behalf of, the
indemnified party and such witness in connection therewith.
(f) All legal and other expenses incurred by or on behalf of any
Selling Investor in connection with investigating or defending any loss, claim,
expense, damage, liability, action or proceeding shall be paid by the Company or
the Partnership in advance of the final disposition of such investigation,
defense, action or proceeding within twenty days after the receipt by the
Company or the Partnership of a statement or statements from the Selling
Investor requesting from time to time such payment, advance or advances. The
entitlement of each Selling Investor to such payment or advancement of expenses
shall include those incurred in connection with any action or proceeding by the
Selling Investor seeking an adjudication or award in arbitration pursuant to
this Section 7.1. Such statement or statements shall reasonably evidence such
expenses incurred by the Selling Investor in connection therewith.
(g) The termination of any proceeding by judgment, order, settlement
or conviction, or upon a plea of nolo contendere or its equivalent, shall not,
of itself, adversely affect the rights of any indemnified party to
indemnification hereunder or create a presumption that any indemnified party
violated any federal or state securities laws.
(h) (i) In the event that advances are not made pursuant to this
Section 7.1 or payment has not otherwise been timely made, each indemnified
party shall be entitled to seek a final adjudication in an appropriate court of
competent jurisdiction of the entitlement of the indemnified party to
indemnification or advances hereunder.
(ii) The Company, the Partnership and the Selling Investors
agree that they shall be precluded from asserting that the procedures and
presumptions of this Section 7.1 are not valid, binding and enforceable.
The Company, the Partnership and the Selling Investors further agree to
stipulate in any such court that the Company, the Partnership, and the
Selling Investors are
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bound by all the provisions of this Section 7.1 and are precluded from
making any assertion to the contrary.
(iii) To the extent deemed appropriate by the court, interest
shall be paid by the indemnifying party to the indemnified party at a
reasonable interest rate for amounts which the indemnifying party has not
timely paid as the result of its indemnification and contribution
obligations hereunder.
(i) In the event that any indemnified party is a party to or
intervenes in any proceeding to which the validity or enforceability of this
Section 7.1 is at issue or seeks an adjudication to enforce the rights of any
indemnified party under, or to recover damages for breach of, this Section 7.1,
the indemnified party, if the indemnified party prevails in whole in such
action, shall be entitled to recover from the indemnifying party and shall be
indemnified by the indemnifying party against, any expenses incurred by the
indemnified party. If it is determined that the indemnified party is entitled to
indemnification for part (but not all) of the indemnification so requested,
expenses incurred in seeking enforcement of such partial indemnification shall
be reasonably prorated among the claims, issues or matters for which the
indemnified party is entitled to indemnification and for such claims, issues or
matters for which the indemnified party is not so entitled.
(j) The indemnity agreements contained in this Section 7.1 shall be in
addition to any other rights (to indemnification, contribution or otherwise)
which any indemnified party may have pursuant to law or contract and shall
remain operative and in full force and effect regardless of any investigation
made or omitted by or on behalf of any indemnified party and shall survive the
transfer of any Eligible Securities by any Investor.
ARTICLE VIII
BENEFITS OF REGISTRATION RIGHTS
Section 8.1 Benefits of Registration Rights. The Investors and the
transferees of Eligible Securities may severally or jointly exercise the
registration rights hereunder in such proportion as they shall agree among
themselves. Except as an Investor and transferee shall otherwise agree, no
consent of any Investor shall be required for a transferee to exercise
registration rights under this Agreement or otherwise to be entitled to the
benefits of this Agreement as applicable to all Investors. In the event that the
Company receives conflicting direction from Investors with respect to actions to
be taken hereunder, the direction of VRLP shall be the only direction the
Company shall be required to follow. The Company and the Partnership agree that
monetary damages would not compensate the Investors for a breach by the Company
hereof and the Investors shall be entitled to specific performance of this
Agreement.
Section 8.2 General Partner of the Partnership. The parties hereto
acknowledge and agree that this Agreement was executed with the expectation that
the
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Company would become a real estate investment trust and, through a wholly owned
subsidiary, the general partner of the Partnership and the Partnership would be
the operating partnership of the Company. Accordingly, GMH GP, the Company, Xxxx
X. Xxxxxxxx and the Partnership agree not to take any actions inconsistent with
such expectation or that results in another Person becoming general partner of
the Partnership, by merger, agreement or otherwise, without causing such entity
to expressly assume all of the obligations of the Company hereunder. In the
event that GMH GP effects an initial public offering as general partner of the
Partnership, then it shall execute an instrument assuming all of the covenants,
agreements, representations and warranties of the Company hereunder..
ARTICLE IX
MISCELLANEOUS
Section 9.1 No Inconsistent Agreements. None of the Company, the
Partnership or GMH GP has entered and each of them will not enter into any
agreement that is inconsistent with the rights granted to the Investors in this
Agreement or that otherwise conflicts with the provisions hereof. The rights
granted to the Investors hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's, the
Partnership's or GMH GP's other issued and outstanding securities under any such
agreements. From and after the date of this Agreement, none of the Company, the
Partnership or GMH GP will enter into any agreement with any holder or
prospective holder of any securities of the Company, the Partnership or GMH GP
which would grant such holder or prospective holder more favorable rights than
those granted to the Investors hereunder or substantially similar or equivalent
rights to those granted to the Investors.
Section 9.2 No Adverse Action Affecting the Eligible Securities. None
of the Company, the Partnership or GMH GP shall take any action with respect to
the Eligible Securities with an intent to adversely affect or that does
adversely affect the ability of any of the Investors to include such Eligible
Securities in a registration undertaken pursuant to this Agreement or their
offer and sale.
Section 9.3 Captions. The captions or headings in this Agreement are
for convenience and reference only, and in no way define, describe, extend or
limit the scope or intent of this Agreement.
Section 9.4 Severability. If any clause, provision or section of this
Agreement shall be invalid or unenforceable, the invalidity or unenforceability
of such clause, provision or section shall not affect the enforceability or
validity of any of the remaining clauses, provisions or sections hereof to the
extent permitted by applicable law.
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Section 9.5 Governing Law. This Agreement shall be construed and
enforced in accordance with the internal laws of the State of New York, without
reference to its rules as to conflicts or choice of laws.
Section 9.6 Modification and Amendment. This Agreement may not be
changed, modified, discharged or amended, except by an instrument signed by all
of the parties hereto.
Section 9.7 Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
Section 9.8 Entire Agreement. This Agreement constitutes the entire
agreement and understanding among the parties and supersedes any prior
understandings and/or written or oral agreements among them respecting the
subject matter herein.
Section 9.9 Notices. All notices required or permitted hereunder shall
be in writing and shall be deemed effectively given: (a) upon personal delivery
to the party to be notified, (b) when sent by confirmed telex or facsimile if
sent during normal business hours of the recipient or, if not, then on the next
Business Day, (c) five (5) days after having been sent by registered or
certified mail, return receipt requested, postage prepaid, or (d) one (1)
Business Day after deposit with a nationally recognized overnight courier,
specifying next Business Day delivery, with written verification of receipt. All
notices and other communications shall be sent to the Company or the Investors,
respectively, at the address listed on the signature page hereof or at such
other address as the Company or the Investors, respectively, may designate by
ten (10) days' advance written notice to the other parties hereto.
Section 9.10 Specific Performance. The parties agree that, to the
extent permitted by law, (i) the obligations imposed on them in this Agreement
are special, unique and of an extraordinary character, and that in the event of
a breach by any such party, damages would not be an adequate remedy; and (ii)
each of the other parties shall be entitled to specific performance and
injunctive and other equitable relief in addition to any other remedy to which
it may be entitled at law or in equity.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement or caused this Agreement to be executed as of the day and year first
above written.
GMH COMMUNITIES TRUST
By: /s/ XXXX X. XXXXXXXX
Name: Xxxx X. Xxxxxxxx
Title: President and CEO
Address: 00 Xxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
(With a copy to Xxxxxx X. Xxxxxxxxx,
Facsimile No.: (000) 000-0000)
GMH COMMUNITIES, LP
By: GMH COMMUNITIES GP, LLC,
its general partner
By: /s/XXXX X. XXXXXXXX
--------------------
Name: Xxxx X. Xxxxxxxx
Title: President and CEO
Address: 00 Xxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
(With a copy to Xxxxxx X. Xxxxxxxxx,
Facsimile No.: (000) 000-0000)
GMH COMMUNITIES GP, LLC
By: /s/ XXXX X. XXXXXXXX
--------------------
Name: Xxxx X. Xxxxxxxx
Title: President and CEO
Address: 00 Xxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
(With a copy to Xxxxxx X. Xxxxxxxxx,
Facsimile No.: (000) 000-0000)
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By: /s/ XXXX X. XXXXXXXX
--------------------
Name: Xxxx X. Xxxxxxxx
Address: 00 Xxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
(With a copy to Xxxxxx X. Xxxxxxxxx,
Facsimile No.: (000) 000-0000)
VORNADO REALTY L.P.
By: VORNADO REALTY TRUST,
its general partner
By: /s/ XXXXXX XXXXXX
--------------------
Name: Xxxxxx Xxxxxx
Title: Executive Vice President - Finance and
Administration and Chief Financial
Officer
Address: 000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
ATTN: Xxx Xxxxxxxxxxx
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