REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made as of
February 14, 1997 among Starwood Lodging Trust, a real estate investment trust
organized under the laws of the State of Maryland (the "Trust"), Starwood
Lodging Corporation, a Maryland corporation (the "Corporation") and the persons
and entities whose names appear under the heading "Holders" on the signature
pages hereto (the "Holders") and, with respect to Section 11 of this Agreement,
Realty Partnership and Operating Partnership (as such terms are defined below).
Unless otherwise indicated, capitalized terms used herein are used herein as
defined in Section 1.1.
RECITALS
WHEREAS, pursuant to a Contribution Agreement dated as of January
15, 1997 (the "Unit Contribution Agreement") among the Trust, the Corporation,
the entities listed on Schedule A-1 hereto (the "Unit Holders") and certain
other parties (i) on the date hereof the Unit Holders are making capital
contributions to SLT Realty Limited Partnership, a Delaware limited partnership
(the "Realty Partnership"), in return for the issuance by the Realty Partnership
to the Unit Holders of Units (as defined in the Limited Partnership Agreement of
the Realty Partnership) of the Realty Partnership (such Units issued by the
Realty Partnership to the Unit Holders on the date hereof being hereinafter
called the "Realty Units") and (ii) on the date hereof the Unit Holders are
making capital contributions to SLC Operating Limited Partnership, a Delaware
limited partnership (the "Operating Partnership"), in return for the issuance by
the Operating Partnership to the Unit Holders of Units (as defined in the
Limited Partnership Agreement of the Operating Partnership) of the Operating
Partnership (such Units issued by the Operating Partnership to the Unit Holders
on the date hereof being hereinafter called the "Operating Units");
WHEREAS, pursuant to a Contribution Agreement dated as of January
15, 1997 (the "Class A Contribution Agreement") among the Corporation, Operating
Partnership, the entities listed on Schedule A-2 hereto (the "Class A Holders")
and certain other parties, on the date hereof the Class A Holders are making
capital contributions to the Corporation and the Operating Partnership, in
return for the issuance of Class A Units (as that term is defined in the Class A
Contribution Agreement); and
WHEREAS, pursuant to the Unit Contribution Agreement and the Class A
Contribution Agreement, the parties hereto desire to set forth the rights of the
Holders and the obligations of the Trust and the Corporation to cause the
registration of the Registrable Securities pursuant to the Securities Act;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. Definitions and Usage.
1.1. Definitions. As used in this Agreement:
Beneficially Owning. "Beneficially Owning" means owning Trust Shares
directly, indirectly or constructively by a Person through the application of
Section 318(a) of the Code, as modified by Section 856(d)(5) of the Code, or
Section 544 of the Code, as modified by Section 856(h) of the Code.
Business Day. "Business Day" means any day other than Saturday,
Sunday and any day on which commercial banks are not open to do business in New
York, New York.
Class A Contribution Agreement. "Class A Contribution Agreement"
shall have the meaning set forth in the recitals.
Class A Exchange Rights Agreement. "Class A Exchange Rights
Agreement" shall refer to the agreement dated the date hereof among the
Corporation, the Operating Partnership and certain other parties.
Class A Holders. "Class A Holders" shall have the meaning set forth
in the recitals.
Class A Units. "Class A Units" shall have the meaning set forth in
the recitals.
Code. "Code" shall mean the Internal Revenue Code of
1986, and the rules and regulations promulgated thereunder, as
amended from time to time.
Commission. "Commission" shall mean the Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act.
Continuously Effective. "Continuously Effective", with respect to a
specified registration statement, shall mean that such registration statement
shall not cease to be effective and available for Transfers of Registrable
Securities thereunder for longer than either (i) any ten (10) consecutive
Business Days, or (ii) an aggregate of fifteen (15) Business Days during the
period specified in the relevant provision of this Agreement.
Corporation Shares. "Corporation Shares" shall mean the shares of
common stock, par value $.01 per share, of the Corporation.
Demand Registration. "Demand Registration" shall have the meaning
set forth in Section 2.1.
Exchange Act. "Exchange Act" shall mean the Securities Exchange Act
of 1934 and the rules and regulations of the Commission thereunder, all as the
same shall be in effect at the time.
Exchange Rights Agreements. "Exchange Rights Agreements" shall mean:
(i) the Units Exchange Rights Agreement and (ii) the Class A Exchange Rights
Agreement.
Holders. "Holders" shall have the meaning set forth in the recitals.
Issuance Percentages. "Issuance Percentage", when used with respect
to the Trust, shall mean 95% and, when used with respect to the Corporation,
shall mean 5%; provided that the Trust and the Corporation may from time to time
change the Issuance Percentages based on their joint determination of the
relative values of the Trust Shares and Corporation Shares.
Lockup Period. "Lockup Period" shall have the meaning set forth in
Section 2.5.
Majority Selling Holders. "Majority Selling Holders" means those
Selling Holders whose Registrable Securities included in such registration
represent a majority of the Registrable Securities of all Selling Holders
included therein.
Operating Partnership. "Operating Partnership" shall have the
meaning set forth in the recitals.
Operating Units. "Operating Units" shall have the meaning set forth
in the recitals.
Ownership Limit. "Ownership Limit" when used with respect to Trust
Shares, has the meaning set forth in the Declaration of Trust of the Trust and,
when used with respect to the Corporation Shares, has the meaning set forth in
the Restated Articles of Incorporation of the Corporation, in each case as
amended from time to time.
Paired Shares. "Paired Shares" shall mean the Trust Shares and
shares of Corporation Stock which are "paired" pursuant to the Pairing Agreement
dated June 25, 1980 between the Trust and the Corporation, as it may be amended
from time to time.
Person. "Person" shall mean any individual, corporation,
partnership, joint venture, association, joint-stock
company, limited liability company, trust, unincorporated organization or
government or other agency or political subdivision thereof.
Piggyback Registration. "Piggyback Registration" shall have the
meaning set forth in Section 3.
PRISA. "PRISA" shall refer to Prudential Property Investment
Separate Account II, which is a Holder.
Realty Partnership. "Realty Partnership" shall have the meaning set
forth in the recitals.
Realty Units. "Realty Units" shall have the meaning set forth in the
recitals.
Register, Registered and Registration. "Register", "registered", and
"registration" shall refer to a registration effected by preparing and filing a
registration statement or similar document in compliance with the Securities
Act, and the declaration or ordering by the Commission of effectiveness of such
registration statement or document.
Registrable Securities. "Registrable Securities" shall mean: (i) the
Paired Shares issued upon exchange of Realty Units and Operating Units pursuant
to the Units Exchange Rights Agreement, (ii) the Paired Shares issued upon
exchange of the Class A Units of the Operating Partnership pursuant to the Class
A Exchange Rights Agreement; (iii) any Paired Shares or other securities issued
as (or issuable upon the conversion or exercise of any warrant, right or other
security which is issued as) a dividend or other distribution with respect to,
or in exchange by the Trust and the Corporation generally for, or in replacement
by the Trust and the Corporation generally of, such Paired Shares; and (iv) any
securities issued in exchange for Paired Shares in any merger or reorganization
of the Trust and the Corporation; provided, however, that Registrable Securities
shall not include any securities which have theretofore been registered and sold
pursuant to the Securities Act or which have been sold to the public pursuant to
Rule 144 or any similar rule promulgated by the Commission pursuant to the
Securities Act, and, provided further, the Trust and the Corporation shall have
no obligation under Sections 2 and 3 to register any Registrable Securities if
the Trust and the Corporation shall deliver to the Holders of such Registrable
Securities an opinion of counsel to the effect that the proposed sale or
disposition of all of the Registrable Securities for which registration was
requested does not require registration under the Securities Act for a sale or
disposition in a single public sale, and offers to remove any and all legends
restricting transfer from the certificates evidencing such Registrable
Securities.
Registrable Securities then outstanding. "Registrable Securities
then outstanding" shall mean, with respect to a specified determination date,
the Registrable Securities owned by all Holders on such date and the Registrable
Securities which are issuable upon exchange of Realty Units, Operating Units and
Class A Units owned by all Holders on such date.
Registration Expenses. "Registration Expenses" shall have the
meaning set forth in Section 6.1.
REIT Requirements. "REIT Requirements" shall mean the requirements
for the Trust to (i) qualify as a real estate investment trust ("REIT") under
the Internal Revenue Code of 1986, as amended from time to time, and the rules
and regulations promulgated thereunder, (ii) avoid any federal income or excise
tax liability, (iii) retain its status as grandfathered pursuant to Section
136(c)(3) of the Deficit Reduction Act of 1984 and (iv) retain the benefits of
that certain private letter ruling issued by the Internal Revenue Service to the
Trust dated as of January 4, 1980.
Required Holders. "Required Holders" shall have the meaning set
forth in Section 2.1.
Securities Act. "Securities Act" shall mean the Securities Act of
1933 and the rules and regulations of the Commission thereunder, all as the same
may be in effect at the time.
Selling Holders. "Selling Holders" shall mean, with respect to a
specified registration pursuant to this Agreement, Holders whose Registrable
Securities are included in such registration.
Shelf Registration. "Shelf Registration" shall have
the meaning set forth in Section 2.2.
Tender Registration. "Tender Registration" shall have the meaning
set forth in Section 2.3.
Transfer. "Transfer" shall mean and include the act of selling,
giving, transferring, creating a trust (voting or otherwise), assigning or
otherwise disposing of (other than pledging, hypothecating or otherwise
transferring as security) (and correlative words shall have correlative
meanings); provided however, that any transfer or other disposition upon
foreclosure or other exercise of remedies of a secured creditor after an event
of default under or with respect to a pledge, hypothecation or other transfer as
security shall constitute a "Transfer".
Trust Shares. "Trust Shares" shall mean the shares of beneficial
interest, $.01 par value, of the Trust.
Underwriters' Representative. "Underwriters' Representative" shall
mean the managing underwriter, or, in the case of a co-managed underwriting, the
managing underwriter designated as the Underwriters' Representative by the co-
managers.
Units. "Units" shall mean Realty Units, Operating Units and Class A
Units.
Unit Contribution Agreement. "Unit Contribution Agreement" shall
have the meaning set forth in the recitals.
Units Exchange Rights Agreement. "Units Exchange Rights Agreement"
shall refer to the agreement dated the date hereof among the Trust, the
Corporation, the Realty Partnership, the Operating Partnership and certain other
parties.
Unit Holders. "Unit Holders" shall have the meaning set forth in the
recitals.
Violation. "Violation" shall have the meaning set forth in Section
7.1.
1.2. Usage.
(i) References to a Person are also references to its assigns and
successors in interest (by means of merger, consolidation or sale of all or
substantially all the assets of such Person or otherwise, as the case may be).
(ii) References to Registrable Securities "owned" by a Holder shall
include Registrable Securities beneficially owned by such Person but which are
held of record in the name of a nominee, trustee, custodian, or other agent, but
shall exclude Paired Shares held by a Holder in a fiduciary capacity for
customers of such Person.
(iii) References to a document are to it as amended, waived and
otherwise modified from time to time and references to a statute or other
governmental rule are to it as amended and otherwise modified from time to time
(and references to any provision thereof shall include references to any
successor provision).
(iv) References to Sections or to Schedules or Exhibits are to
sections hereof or schedules or exhibits hereto, unless the context otherwise
requires.
(v) The definitions set forth herein are equally applicable both to
the singular and plural forms and the feminine, masculine and neuter forms of
the terms defined.
(vi) The term "including" and correlative terms shall be deemed to
be followed by "without limitation" whether or not followed by such words or
words of like import.
(vii) The term "hereof" and similar terms refer to this Agreement as
a whole.
(viii) The "date of" any notice or request given pursuant to this
Agreement shall be determined in accordance with Section 12.
Section 2. Demand, Shelf and Tender Registrations.
2.1. Subject to Section 2.7, from and after expiration of the
applicable Lockup Period, if the holders of at least 25% of the Registrable
Securities (the "Required Holders") shall make a written request to the Trust
and the Corporation to effect any registration (a "Demand Registration") with
respect to all or any portion of the Registrable Securities, then the Trust and
the Corporation shall (i) promptly give written notice of the proposed
registration to all other Holders of Registrable Securities and (ii) as soon as
practicable cause there to be filed with the Commission a registration statement
under the Securities Act and (subject to Section 2.10) the Trust and the
Corporation shall include therein all or any portion of the Registrable
Securities requested by the Required Holders, together with all or such portion
of the Registrable Securities of any Holder or Holders joining in such request
as are specified in a written request received by the Trust and the Corporation
within ten (10) Business Days after written notice from the Trust and the
Corporation is given above; provided, however, that no request may be made
pursuant to this Section 2.1 if within 90 days prior to the date of such request
a Demand Registration statement pursuant to this Section 2.1 shall have been
declared effective by the Commission. Any request made pursuant to this Section
2.1 shall be addressed to the attention of the Secretary of each of the Trust
and the Corporation, and shall specify the number of Registrable Securities to
be registered, the intended methods of disposition thereof and that the request
is for a Demand Registration pursuant to this Section 2.1.
2.2. Subject to Section 2.7, from and after the expiration of the
applicable Lockup Period, if the Required Holders shall make a written request
to the Trust and the Corporation to effect a registration on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act (a "Shelf
Registration") with respect to all or any portion of the
Registrable Securities, then the Trust and the Corporation shall (i) promptly
give written notice of the proposed registration to all other Holders of
Registrable Securities and (ii) as soon as practicable cause there to be filed
with the Commission such Shelf Registration. The Trust and the Corporation shall
include therein all or any portion of the Registrable Securities requested by
the Required Holders, together with all or such portion of the Registrable
Securities of any Holder or Holders joining in such request as are specified in
a written request received by the Trust and the Corporation within ten (10)
Business Days after written notice from the Trust and the Corporation is given
above; provided, however, that no request may be made pursuant to this Section
2.2 if within ninety (90) days prior to the date of such request a Shelf
Registration statement pursuant to this Section 2.2 shall have been declared
effective by the Commission. Any request made pursuant to this Section 2.2 shall
be addressed to the attention of the Secretary of each of the Trust and the
Corporation, and shall specify the number of Registrable Securities to be
registered, the possible intended methods of disposition thereof and that the
request is for a Shelf Registration pursuant to this Section 2.2.
2.3. If (i) there is a Paired Share Tender Reduction (as defined in
Section 6 of the Exchange Rights Agreements) and (ii) the tendering Holder of
Delayed Payment Units (as defined in Section 6 of the Exchange Rights
Agreements) shall make a written request to the Trust and the Corporation, then
the Trust and the Corporation shall cause there to be filed with the Commission
a registration statement under the Securities Act (a "Tender Registration"), and
the Trust and the Corporation shall register and sell pursuant thereto a number
of Paired Shares (such Paired Shares being considered to be "Registrable
Securities" for purposes of this Agreement) equal to the number of Unissued
Paired Shares (as defined in Section 6 of the Exchange Rights Agreements) that
such Holder(s) shall request in such written request. The Trust and the
Corporation shall pay the net proceeds of such sale (after underwriting
discounts and commissions) to the tendering holder of the Delayed Payment Units
(as defined in Section 6 of the Exchange Rights Agreements) pursuant to the
Exchange Rights Agreements. Any request made pursuant to this Section 2.3 shall
be addressed to the attention of the Secretary of each of the Trust and the
Corporation, and shall specify the number of Reduced Paired Shares to be
registered, the intended methods of disposition thereof and that the request is
for a Tender Registration pursuant to this Section 2.3.
2.4. In lieu of the registration rights set forth in Sections 2.1
and 2.2 above, the Trust and the Corporation shall, prior to the expiration of
the Lockup Period, file a registration statement under Rule 415 under the
Securities Act relating to the
issuance to Holders of Paired Shares upon redemption or exchange of their Units
(including the Paired Shares issued to PRISA upon the conversion of Units
immediately following the closing of the transactions contemplated by the Unit
Contribution Agreement, as set forth in and contemplated by the penultimate
sentence of Section 8.02(j) of the Unit Contribution Agreement) (the "HEI/PRISA
Registration Statement"). The Trust and the Corporation shall use reasonable
efforts to cause the HEI/PRISA Registration Statement to be declared effective
by the Commission for all Paired Shares covered thereby. The Corporation and the
Trust agree to use their reasonable efforts to keep the HEI/PRISA Registration
Statement Continuously Effective until the date on which all the Registrable
Securities under the HEI/PRISA Registration Statement have been disposed of in a
manner described in such registration statement. In the event that the Trust and
the Corporation are unable to cause the HEI/PRISA Registration Statement to be
declared effective by the Commission or are unable to keep such Registration
Statement effective for such period, then the rights of the Holders set forth in
Sections 2.1 and 2.2 above shall be restored.
2.5. (i) The Trust and the Corporation shall be entitled to postpone
for up to 90 days the filing of any registration statement otherwise required to
be prepared and filed pursuant to this Section 2, if the Trust and the
Corporation shall furnish to the Selling Holders a certificate signed by the
Secretary of each of the Trust and the Corporation stating that the Board of
Trustees of the Trust and the Board of Directors of the Corporation has in good
faith determined that such registration and the Transfer of Registrable
Securities contemplated thereby would interfere with, or require premature
disclosure of, any material financing, acquisition, disposition, reorganization
or other transaction involving the Realty Partnership, the Operating
Partnership, the Trust or the Corporation or any of their respective
subsidiaries and the Trust or the Corporation, as the case may be, promptly
gives the Holders requesting such registration notice of such determination. If
a disclosure of such transactions occurs prior to the end of the 90-day period,
such postponement shall terminate on such earlier day. Such Holder or Holders
hereby acknowledge that any notice given by the Trust or the Corporation
pursuant to this Section 2.5(i) shall constitute material non-public information
and that the United States securities laws prohibit any Person who has material
non-public information about a company from purchasing or selling securities of
such company or from communicating such information to any other Person under
circumstances in which it is reasonably foreseeable that such Person is likely
to purchase or sell such securities.
(ii) The Trust and the Corporation shall not be obligated to file
any Demand Registration statement or any Tender
Registration statement pursuant to this Section 2 if, within twenty (20) days
after their receipt of the written request of the requesting Holders, the Trust
and the Corporation notify such Holders that, prior to their receipt of such
request, they had a plan or intention promptly to register equity securities
under the Securities Act. The Trust and the Corporation shall not be obligated
to file any Demand Registration statement or any Tender Registration statement
pursuant to the preceding sentence, only if the Trust and the Corporation are
actively employing in good faith all reasonable efforts to cause such
registration statements to become effective. Holders of Registrable Securities
shall have rights to participate in any such registration on the terms provided
in Section 3 hereof.
(iii) Notwithstanding anything to the contrary contained in this
Agreement, (x) with respect to Holders other than PRISA, such Holders shall have
no right to cause the Trust and the Corporation to effect a registration
pursuant to Section 2 or 3 prior to the first anniversary of the date of this
Agreement without the consent of the Trust and the Corporation, and (y) with
respect to PRISA, PRISA shall have no right to cause the Trust and the
Corporation to effect a registration pursuant to Section 2 or 3 prior to the
date 6 months after the date of this Agreement without the consent of the Trust
and the Corporation (the applicable period being referred to herein as the
"Lockup Period"). No Holder shall be entitled to participate in any Piggyback
Registration pursuant to which securities registered thereunder are to be
offered or sold prior to expiration of the Lockup Period.
2.6. Following receipt of a request for a Demand Registration, a
Shelf Registration or a Tender Registration, the Trust and the Corporation
shall:
(i) File the registration statement with the Commission as promptly
as practicable, and shall use their respective reasonable efforts to have the
registration declared effective under the Securities Act as soon as reasonably
practicable, in each instance giving due regard to the need to prepare current
financial statements, conduct due diligence and complete other actions that are
reasonably necessary to effect a registered public offering.
(ii) Use their respective reasonable efforts to keep the relevant
registration statement Continuously Effective (x) if a Demand Registration or a
Tender Registration, for up to sixty (60) days or until such earlier date as of
which all the Registrable Securities under the Demand Registration statement or
Tender Registration statement shall have been disposed of in the manner
described in the registration statement and (y) if a Shelf Registration, until
such date as of which all the Registrable
Securities under the Shelf Registration statement have been disposed of in a
manner described in the registration statement. Notwithstanding the foregoing,
if for any reason the effectiveness of a registration pursuant to this Section 2
is suspended or, in the case of a Demand Registration or a Tender Registration,
postponed as permitted by Section 2.5(i), the relevant foregoing period shall be
extended by the aggregate number of days of such suspension or postponement.
2.7. Notwithstanding anything in this Agreement to the contrary, (a)
in no event will the Trust or the Corporation be obligated to effect more than a
total of four Demand Registrations, (b) in no event will the Trust or the
Corporation be obligated to effect any Demand Registration for less than the
number of Paired Shares to be issued upon exchange of at least 10% of all Units
issued pursuant to the Unit Contribution Agreement and Class A Contribution
Agreement, (c) in no event will the Trust or the Corporation be obligated to
effect any Shelf Registration unless the Holder(s) of Registrable Securities
requesting registration propose to dispose of Paired Shares with a market value
of at least $5,000,000 (based upon the closing trading price of the Paired
Shares on the date of such request), (d) in no event will the Trust or the
Corporation be obligated to effect a Demand Registration or a Tender
Registration if the Registrable Securities proposed to be registered therein
shall be covered by a Shelf Registration statement, (e) no registration shall be
effected under this Agreement and no Transfer of Registrable Securities may be
effected if as a result thereof the Trust would not satisfy the REIT
Requirements in any respect or if such registration or Transfer would result in
any Person Beneficially Owning Paired Shares in excess of the Ownership Limit
and (f) the Trust and the Corporation will not be obligated to effect a Shelf
Registration or Demand Registration if the effect of such a registration is that
more than 50% of the Paired Shares issuable to PRISA pursuant to the Exchange
Rights Agreements will have been sold in the first six-month period following
the Lockup Period applicable to PRISA. For purposes of the preceding sentence,
registration shall not be deemed to have been effected (i) unless a registration
statement with respect thereto has become effective, or (ii) if after such
registration statement has become effective, the related offer, sale or
distribution of Registrable Securities thereunder is prohibited by any stop
order, injunction or other order or requirement of the Commission or other
governmental agency or court for any reason not attributable to the Selling
Holders and such prohibition is not thereafter eliminated. If the Trust and the
Corporation shall have complied with their respective obligations under this
Agreement, a right to demand a registration pursuant to this Section 2 shall be
deemed to have been satisfied (A) if a Demand Registration or a Tender
Registration, upon the earlier of (x) the date as of which all of the
Registrable Securities
included therein shall have been disposed of pursuant to the Registration
Statement, and (y) the date as of which such Demand Registration shall have been
Continuously Effective for a period of 60 days, and (B) if a Shelf Registration,
upon the effective date of such Shelf Registration, provided no stop order or
similar order, or proceedings for such an order, is thereafter entered or
initiated.
2.8. A registration pursuant to this Section 2 shall be on such
appropriate registration form of the Commission as shall be selected by the
Trust and the Corporation and shall permit the disposition of the Registrable
Securities in accordance with the intended method or methods of disposition
specified in the request pursuant to Sections 2.1, 2.2 or 2.3, respectively.
2.9. If any Demand Registration or Shelf Registration pursuant to
Section 2 involves an underwritten offering (whether on a "firm commitment",
"best efforts" or "all reasonable efforts" basis or otherwise), the Majority
Selling Holders shall select the underwriter or underwriters and manager or
managers to administer such underwritten offering; provided, however, that each
Person so selected shall be acceptable to the Trust and the Corporation.
2.10. Whenever the Trust and the Corporation shall effect a
registration pursuant to this Section 2 in connection with an underwritten
offering by one or more Selling Holders of Registrable Securities: (i) if such
Selling Holders have requested the inclusion therein of more than one class of
Registrable Securities and the Underwriters' Representative advises the Selling
Holders that, in its opinion, the inclusion of more than one class of
Registrable Securities would adversely affect such offering, the Majority
Selling Holders shall decide which class of Registrable Securities shall be
included therein in such offering and the related registration and the other
class shall be excluded and (ii) if the Underwriters' Representative advises the
Selling Holders that, in its opinion, the amount of securities requested to be
included in such offering (whether by Selling Holders or others, including the
Trust and the Corporation) exceeds the amount which can be sold in such offering
within a price range acceptable to the Majority Selling Holders, securities
shall be included in such offering and the related registration, to the extent
of the amount which can be sold within such price range in the following order
of priority: first, the Registrable Securities requested to be included in such
registration pursuant to this Section 2, pro rata based on the estimated gross
proceeds from the sale thereof; and second all other securities requested to be
included in such registration.
Section 3. Piggyback Registration.
3.1. If at any time the Trust and the Corporation propose to
register securities (either for itself or for another holder of the securities
of the Trust, and the Corporation pursuant to registration rights granted by the
Trust and the Corporation to such holder pursuant to a registration rights or
similar agreement) under the Securities Act in connection with the public
offering solely for cash on Form X-0, X-0, X-0, or S- 11 (or any replacement or
successor forms), the Trust and the Corporation shall promptly give the Holders
written notice of such registration. Upon the written request of each Holder
given as promptly as practicable but in any event within twenty (20) days
following the date of such notice, the Trust and the Corporation shall cause to
be included in such registration statement and use their respective reasonable
efforts to be registered under the Securities Act all the Registrable Securities
that each such Holder shall have requested to be registered; provided, however,
that such right of inclusion shall not apply to any registration statement
covering an offering of debt securities or convertible debt securities (any such
registration in which Holders participate pursuant to this Section 3.1 being
referred to as a "Piggyback Registration"). The Trust and the Corporation shall
have the absolute right to delay, withdraw or cease to prepare or file any
registration statement for any offering referred to in this Section 3 without
any obligation or liability to any Holder, it being understood that any
Registrable Securities previously included in any such withdrawn Registration
Statement shall not cease to be Registrable Securities by reason of such
inclusion or withdrawal. Any Holder of Registrable Securities who has requested
inclusion of such securities in a Piggyback Registration may withdraw therefrom
by written notice to the Trust, the Corporation and the underwriter and the
other Selling Holders, provided such withdrawal is made prior to the effective
date of the relevant registration statement.
3.2. If the Underwriters' Representative shall advise the Trust and
the Corporation that, in its opinion, the amount or type of Registrable
Securities requested to be included in a Piggyback Registration would adversely
affect such offering, or the timing thereof, then the Trust and the Corporation
will include in such registration, to the extent of the amount and class which
the Trust and the Corporation are so advised can be sold without such adverse
effect in such offering: first, all securities, if any, requested to be included
in a registration statement pursuant to the exercise of demand registration
rights granted by the Trust and the Corporation; second, all securities proposed
to be sold by the Trust and the Corporation for their own accounts; and third,
the Registrable Securities requested to be included in such registration by
Holders pursuant to this
Section 3 and all other securities requested to be included in such registration
pursuant to the exercise of piggyback rights granted pursuant to registration
rights agreements with Starwood Capital Group, L.P., a Delaware limited
partnership, and Philadelphia HSR Limited Partnership, a Massachusetts limited
partnership, and other entities pro rata based on the estimated gross proceeds
from the sale thereof.
Section 4. Registration Procedures. Whenever required under Section
2 or Section 3 to effect the registration of any Registrable Securities, the
Trust and the Corporation shall, as expeditiously as practicable:
4.1. Prepare and file with the Commission a registration statement
with respect to such Registrable Securities and use their respective reasonable
efforts to cause such registration statement to become effective; provided,
however, that before filing a registration statement or prospectus or any
amendments or supplements thereto, the Trust and the Corporation shall furnish
to one firm of counsel for the Selling Holders, copies of all such documents in
the form substantially as proposed to be filed with the Commission and provide
reasonable opportunity to comment.
4.2. Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act and rules thereunder with respect to the
disposition of all securities covered by such registration statement. If the
registration is for an underwritten offering, the Trust and the Corporation
shall amend the registration statement or supplement the prospectus whenever
required by the terms of the underwriting agreement entered into pursuant to
Section 4.5. If the registration statement is for a Shelf Registration, the
Trust and the Corporation shall amend the registration statement or supplement
the prospectus so that it will remain current and in compliance with the
requirements of the Securities Act for the period specified in Section 2.6(ii),
and if during such period any event or development occurs as a result of which
the registration statement or prospectus contains a misstatement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, the Trust or the
Corporation shall promptly notify each Selling Holder, amend the registration
statement or supplement the prospectus so that each will thereafter comply with
the Securities Act and furnish to each Selling Holder of Registrable Securities
such amended or supplemented prospectus, which each such Holder shall thereafter
use in the Transfer of Registrable Securities covered by such registration
statement. Pending any such amendment or supplement described in this
Section 4.2, each such Holder shall cease making offers or Transfers of
Registrable Shares pursuant to the prior prospectus. In the event that any
Registrable Securities included in a registration statement subject to, or
required by, this Agreement remain unsold at the end of the period during which
the Trust and the Corporation are obligated to use their respective reasonable
efforts to maintain the effectiveness of such registration statement, the Trust
and the Corporation may file a post-effective amendment to the registration
statement for the purpose of removing such Registrable Securities from
registered status.
4.3. Furnish to each Selling Holder of Registrable Securities,
without charge, such numbers of copies of the registration statement, any
pre-effective or post-effective amendment thereto, the prospectus, including
each preliminary prospectus and any amendments or supplements thereto, in each
case in conformity with the requirements of the Securities Act and the rules
thereunder, and such other related documents as any such Selling Holder may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by such Selling Holder.
4.4. Use their respective reasonable efforts (i) to register and
qualify the securities covered by such registration statement under such other
securities or Blue Sky laws of such states where an exemption from registration
is not available and as shall be reasonably requested by the Underwriters'
Representative and (ii) to obtain the withdrawal of any order suspending the
effectiveness of a registration statement, or the lifting of any suspension of
the qualification (or exemption from qualification) of the offer and transfer of
any of the Registrable Securities in any state, at the earliest possible moment;
provided, however, that neither the Trust nor the Corporation shall be required
in connection therewith or as a condition thereto to qualify to do business or
to consent to general service of process in any state.
4.5. In the event of any underwritten offering, use their respective
reasonable efforts to enter into and perform their respective obligations under
an underwriting agreement (including indemnification and contribution
obligations of underwriters), in usual and customary form, with the managing
underwriter or underwriters of such offering. The Trust and the Corporation
shall also cooperate with the Majority Selling Holders, and the Underwriters'
Representative for such offering in the marketing of the Registerable
Securities, including making available the officers, accountants, counsel,
premises, books and records of the Trust and the Corporation for such purpose;
provided, however, that neither the Trust nor the Corporation shall be required
to incur any material out-of-pocket expense pursuant to this sentence and;
provided, further, that the
officers of the Trust and the Corporation will not be required to participate in
more than one "roadshow" in any twelve month period.
4.6. Promptly notify each Selling Holder of any stop order issued or
threatened to be issued by the Commission in connection therewith and take all
reasonable actions required to prevent the entry of such stop order or to remove
it if entered.
4.7. Make available for inspection by any Selling Holder, any
underwriter participating in such offering and the representatives of such
Selling Holder and Underwriter (but not more than one firm of counsel to such
Selling Holders), all financial and other information as shall be reasonably
requested by them, and provide any Selling Holder, any underwriter participating
in such offering and the representatives of such Selling Holder and Underwriter
the reasonable opportunity to discuss the business affairs of the Trust and the
Corporation with their principal executives and independent public accountants
who have certified the audited financial statements included in such
registration statement, in each case all as necessary to enable them to exercise
their due diligence responsibility under the Securities Act; provided, however,
that information that the Trust or the Corporation determine to be confidential
and which the Trust or the Corporation advise such Person in writing, is
confidential shall not be disclosed unless such Person signs a confidentiality
agreement reasonably satisfactory to the Trust and the Corporation or the
related Selling Holder of Registrable Securities agrees to be responsible for
such Person's breach of confidentiality on terms reasonably satisfactory to the
Trust and the Corporation.
4.8. Use their respective reasonable efforts to obtain a so-called
"comfort letter" from the independent public accountants of the Trust and the
Corporation, and legal opinions of counsel to the Trust and the Corporation
addressed to the Selling Holders, in customary form and covering such matters of
the type customarily covered by such letters, and in a form that shall be
reasonably satisfactory to the Majority Selling Holders. Delivery of any such
opinion or comfort letter shall be subject to the recipient furnishing such
written representations or acknowledgments as are customarily provided by
selling shareholders who receive such comfort letters or opinions.
4.9. Use their respective reasonable efforts to cause the
Registrable Securities covered by such registration statement (i) if the Paired
Shares are then listed on a securities exchange or included for quotation in a
recognized trading market, to continue to be so listed or included for a
reasonable period of time after the offering, and (ii) to be registered with or
approved by such other United States or state governmental
agencies or authorities as may be necessary by virtue of the business and
operations of the Trust and the Corporation to enable the Selling Holders of
Registrable Securities to consummate the disposition of such Registrable
Securities.
4.10. Take such other actions as are reasonably required in order to
expedite or facilitate the disposition of Registrable Securities included in
each such registration.
Section 5. Holders' Obligations. It shall be a condition precedent
to the obligations of the Trust and the Corporation to take any action pursuant
to this Agreement with respect to the Registrable Securities of any Selling
Holder of Registrable Securities that such Selling Holder shall:
5.1. Furnish to the Trust and the Corporation such information
regarding such Selling Holder, the number of the Registrable Securities owned by
it, and the intended method of disposition of such securities as shall be
required to effect the registration of such Selling Holder's Registrable
Securities, and to cooperate fully with the Trust and the Corporation in
preparing such registration.
5.2. Except as set forth in Sections 2.10 and 3.1, agree to sell
their Registrable Securities to the underwriters at the same price and on
substantially the same terms and conditions as the Trust and the Corporation or
the other Persons on whose behalf the registration statement was being filed
have agreed to sell their securities, and to execute the underwriting agreement
agreed to by the Majority Selling Holders (in the case of a registration under
Section 2) or the Trust and the Corporation and the Majority Selling Holders (in
the case of a registration under Section 3).
Section 6. Expenses of Registration. Expenses in connection with
registrations pursuant to this Agreement shall be allocated and paid as follows:
6.1. With respect to each Demand Registration, Shelf Registration
and Tender Registration, each of the Trust and the Corporation shall bear and
pay all expenses incurred in connection with any registration, filing, or
qualification of Registrable Securities with respect to such Registration for
each Selling Holder, including all registration, filing and National Association
of Securities Dealers, Inc. fees, all fees and expenses of complying with
securities or blue sky laws, all printing expenses, messenger and delivery
expenses, the reasonable fees and disbursements of counsel for the Trust and the
Corporation, and of the independent public accountants for the Trust and the
Corporation, including the expenses of "cold comfort" letters required by or
incident to such performance and
compliance (the "Registration Expenses"), but excluding underwriting discounts
and commissions relating to Registrable Securities (which shall be paid on a pro
rata basis by the Selling Holders) and all fees and expenses of counsel for the
Selling Holders; provided, however, that the Trust and the Corporation shall not
be required to pay for any expenses of any registration proceeding begun
pursuant to Section 2 if the registration is subsequently withdrawn as a result
of the failure of the Selling Holders to satisfy their obligations under this
Agreement (in which case the Selling Holders that fail to satisfy their
obligations under this Agreement shall bear such expenses), unless, in the case
of a Demand Registration or a Shelf Registration, Holders whose Registrable
Securities constitute a majority of the Registrable Securities then outstanding
agree that such withdrawn registration shall have constituted one of the Demand
or Shelf Registrations available to them under Section 2 hereof. The Trust and
the Corporation each agree between themselves that they shall bear and pay
Registration Expenses in an amount equal to their respective Issuance Percentage
of such Registration Expenses and that they shall reimburse each other to the
extent necessary to cause each of them to so bear and pay such respective
amounts.
6.2. The Trust and the Corporation shall bear and pay all
Registration Expenses incurred in connection with any Piggyback Registrations
pursuant to Section 3, but excluding underwriting discounts and commissions
relating to Registrable Securities (which shall be paid on a pro rata basis by
the Selling Holders) and all fees and expenses of counsel for the Selling
Holders.
Section 7. Indemnification; Contribution. If any Registrable
Securities are included in a registration statement under this Agreement:
7.1. To the extent permitted by applicable law, each of the Trust
and the Corporation, severally and not jointly, shall indemnify and hold
harmless each Selling Holder, each Person, if any, who controls such Selling
Holder within the meaning of the Securities Act, and each officer, director,
partner and employee of such Selling Holder and such controlling Person, against
any and all losses, claims, damages, liabilities and expenses (joint or
several), including reasonable attorneys' fees and disbursements and reasonable
expenses of investigation, incurred by such party pursuant to any actual or
threatened action, suit, proceeding or investigation, or to which any of the
foregoing Persons may otherwise become subject under the Securities Act, the
Exchange Act or other federal or state laws, insofar as such losses, claims,
damages, liabilities and expenses arise out of or are based upon any of the
following statements, omissions or violations (collectively a "Violation"):
(i) Any untrue statement or alleged untrue statement of a material
fact contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein, or any amendments or
supplements thereto; or
(ii) The omission or alleged omission to state therein a material
fact required to be stated therein, or necessary to make the statements therein
not misleading;
provided, however, that the indemnification required by this Section 7.1 shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or expense if such settlement is effected without the consent of the
Trust or the Corporation (which consent shall not be unreasonably withheld), nor
shall the Trust or the Corporation be liable in any such case for any such loss,
claim, damage, liability or expense to the extent that it arises out of or is
based upon a Violation which occurs in reliance upon and in conformity with
information furnished to the Trust or the Corporation by the indemnified party
in writing expressly for use in connection with such registration; and provided,
further, that the indemnity agreement contained in this Section 7 shall not
apply to the extent that any such loss is based on or arises out of an untrue
statement or alleged untrue statement of a material fact, or an omission or
alleged omission to state a material fact, contained in or omitted from any
preliminary prospectus if the final prospectus shall correct such untrue
statement or alleged untrue statement, or such omission or alleged omission, and
a copy of the final prospectus has not been sent or given to such person at or
prior to the confirmation of sale to such person if an underwriter or Selling
Holder was under an obligation to deliver such final prospectus and failed to do
so.
7.2. To the extent permitted by applicable law, each Selling Holder
shall indemnify and hold harmless the Trust, the Corporation, each of the
Trustees of the Trust, each of the directors of the Corporation, each of the
officers of the Trust or the Corporation who shall have signed the registration
statement, each Person, if any, who controls the Trust or the Corporation within
the meaning of the Securities Act, any other Selling Holder, any controlling
Person of any such other Selling Holder and each officer, director, partner, and
employee of such other Selling Holder and such controlling Person, against any
and all losses, claims, damages, liabilities and expenses (joint and several),
including reasonable attorneys' fees and disbursements and reasonable expenses
of investigation, incurred by such party pursuant to any actual or threatened
action, suit, proceeding or investigation, or to which any of the foregoing
Persons may otherwise become subject under the Securities Act, the Exchange Act
or other federal or state laws, but only insofar as such losses, claims,
damages, liabilities and expenses arise out of or are based upon any Violation,
in each case to the extent that
such Violation arises out of or is based upon information furnished by such
Selling Holder in writing expressly for use in connection with such
registration; provided, however, that (x) the indemnification required by this
Section 7.2 shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or expense if such settlement is effected without the
consent of the relevant Selling Holder (which consent shall not be unreasonably
withheld) and (y) in no event shall the amount of any indemnity under this
Section 7.2 exceed the gross proceeds from the applicable offering received by
such Selling Holder.
7.3. Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, suit, proceeding,
investigation or threat thereof made in writing for which such indemnified party
may make a claim under this Section 7, such indemnified party shall deliver to
the indemnifying party a written notice thereof and the indemnifying party shall
have the right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to assume
the defense thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party shall have the right to retain its own
counsel, with the fees and disbursements and expenses to be paid by the
indemnifying party, if representation of such indemnified party by the counsel
retained by the indemnifying party would be inappropriate due to actual or
potential differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time following the
commencement of any such action, if prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 7 to the extent of such prejudice but shall
not relieve the indemnifying party of any liability that it may have to any
indemnified party otherwise than pursuant to this Section 7. Any fees and
expenses incurred by the indemnified party (including any fees and expenses
incurred in connection with investigating or preparing to defend such action or
proceeding) shall be paid to the indemnified party, as incurred, within thirty
(30) days of written notice thereof to the indemnifying party (regardless of
whether it is ultimately determined that an indemnified party is not entitled to
indemnification hereunder). Any such indemnified party shall have the right to
employ separate counsel in any such action, claim or proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be the expenses of such indemnified party unless (i) the indemnifying
party has agreed to pay such fees and expenses or (ii) the indemnifying party
shall have failed to promptly assume the defense of such action, claim or
proceeding or (iii) the named parties to any such action, claim or proceeding
(including any impleaded
parties) include both such indemnified party and the indemnifying party, and
such indemnified party shall have been advised by counsel that there may be one
or more legal defenses available to it which are different from or in addition
to those available to the indemnifying party and that the assertion of such
defenses would create a conflict of interest such that counsel employed by the
indemnifying party could not faithfully represent the indemnified party (in
which case, if such indemnified party notifies the indemnifying party in writing
that it elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the defense of
such action, claim or proceeding on behalf of such indemnified party, it being
understood, however, that the indemnifying party shall not, in connection with
any one such action, claim or proceeding or separate but substantially similar
or related actions, claims or proceedings in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys (together with
appropriate local counsel) at any time for all such indemnified parties, unless
in the reasonable judgment of such indemnified party a conflict of interest may
exist between such indemnified party and any other of such indemnified parties
with respect to such action, claim or proceeding, in which event the
indemnifying party shall be obligated to pay the fees and expenses of such
additional counsel or counsels).
7.4. If the indemnification required by this Section 7 from the
indemnifying party is unavailable to an indemnified party hereunder in respect
of any losses, claims, damages, liabilities or expenses referred to in this
Section 7:
(i) The indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified parties in connection with the actions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such indemnifying party
and indemnified parties shall be determined by reference to, among other things,
whether any Violation has been committed by, or relates to information supplied
by, such indemnifying party or indemnified parties, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such Violation. The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in Section 7.1 and Section 7.2,
any legal or other fees or expenses
reasonably incurred by such party in connection with any investigation or
proceeding.
(ii) The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 7.4 were determined by pro
rata allocation or by any other method of allocation which does not take into
account the equitable considerations referred to in Section 7.4(i). No Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
7.5. If indemnification is available under this Section 7, the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in this Section 7 without regard to the relative fault of such
indemnifying party or indemnified party or any other equitable consideration
referred to in Section 7.4.
7.6. The obligations of the Trust, the Corporation and the Selling
Holders of Registrable Securities under this Section 7 shall survive the
completion of any offering of Registrable Securities pursuant to a registration
statement under this Agreement, and otherwise.
Section 8. Holdback. (a) Each Holder, if so requested by the
Underwriters' Representative in connection with an offering of any securities
covered by a registration statement filed by Trust and the Corporation, whether
or not Holder's securities are included therein, shall not effect any public
sale or distribution of Paired Shares or any securities convertible into or
exchangeable or exercisable for Paired Shares, including a sale pursuant to Rule
144 under the Securities Act (except as part of such underwritten registration),
during the 15-day period prior to, and during the 90-day period beginning on,
the date such registration statement is declared effective under the Securities
Act by the Commission. In order to enforce the foregoing covenant, the Trust and
the Corporation shall be entitled to impose stop-transfer instructions with
respect to the Registrable Securities of each Holder until the end of such
period. Holders of Registrable Securities shall have the right to participate in
any such registration on the terms provided in Section 3 hereof.
(b) Each of the Trust and the Corporation agrees not to effect any
public sale or distribution of its equity securities, or any securities
convertible into or exchangeable or exercisable for such securities, during the
15-day period prior to and during the 90-day period beginning on the effective
date of any underwritten Demand Registration (except pursuant to (i)
registrations on Form S-8 or any successor form, (ii) registrations on Form S-4
or any successor form and (iii) registrations of securities in connection with a
dividend reinvestment plan on form(s) applicable to such securities) unless the
underwriters managing the registered public offering otherwise agree.
Section 9. Amendment, Modification and Waivers; Further Assurances.
(i) This Agreement may be amended with the consent of the Trust and
the Corporation and the Trust and the Corporation may take any action herein
prohibited, or omit to perform any act herein required to be performed by it,
only if the Trust and the Corporation shall have obtained the written consent of
the Required Holders to such amendment, action or omission to act and no consent
or agreement of any Holder shall be required for such amendment, action or
omission to act.
(ii) No waiver of any terms or conditions of this Agreement shall
operate as a waiver of any other breach of such terms and conditions or any
other term or condition, nor shall any failure to enforce any provision hereof
operate as a waiver of such provision or of any other provision hereof. No
written waiver hereunder, unless it by its own terms explicitly provides to the
contrary, shall be construed to effect a continuing waiver of the provisions
being waived and no such waiver in any instance shall constitute a waiver in any
other instance or for any other purpose or impair the right of the party against
whom such waiver is claimed in all other instances or for all other purposes to
require full compliance with such provision.
(iii) Each of the parties hereto shall execute all such further
instruments and documents and take all such further action as any other party
hereto may reasonably require in order to effectuate the terms and purposes of
this Agreement.
Section 10. Assignment; Benefit. This Agreement shall be binding
upon and inure to the benefit of and be enforceable by the parties hereto and
their respective successors and assigns. In addition, and whether or not any
express assignment shall have been made, the provisions of this Agreement which
are for the benefit of the parties hereto other than the Corporation and the
Trust, shall also be for the benefit of and enforceable by any subsequent holder
of any Registrable Securities, subject to all the provisions herein, including
those respecting the minimum numbers or percentages of shares of Registrable
Securities required in order to be entitled to certain rights, or take certain
actions, contained herein.
Section 11. Condition Precedent to Paired Share Election and
Combined Election under the Exchange Rights Agreement. The (i) Trust and the
Corporation, individually and as the general partners of the Realty Partnership
and the Operating Partnership, respectively and (ii) the Realty Partnership and
the Operating Partnership, acknowledge and agree that, notwithstanding anything
in the Exchange Rights Agreement to the contrary, the rights of the Trust or the
Corporation under the Exchange Rights Agreement to issue Paired Shares pursuant
to a Paired Share Election or Combined Election (each as defined in the Exchange
Rights Agreement) shall be conditioned upon the Paired Shares issued in exchange
for tendered Units having been registered pursuant to a registration statement
that has been declared effective by the Commission under the Securities Act. In
the event that such registration statement has not been declared effective by
the Commission as of the date of issuance of the Paired Shares pursuant to such
Paired Share or Combined Election, the tender date shall be extended until the
date on which such registration statement has been so declared effective;
provided that, if such registration statement has not been declared effective
within sixty (60) days following the delivery of the Letter of Transmittal (as
defined in the Exchange Rights Agreement), such Letter of Transmittal may be
withdrawn in the sole discretion of the tendering Holder of Units.
Section 12. Miscellaneous.
12.1. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New
York, without giving regard to the conflict of laws principles
thereof.
12.2. Notices. All notices and requests given pursuant to this
Agreement shall be in writing and shall be made by hand-delivery, first-class
mail (registered or certified, return receipt requested), confirmed facsimile or
overnight air courier guaranteeing next Business Day delivery to the relevant
address specified in the Unit Contribution Agreement or Class A Contribution
Agreement, as the case may be. Except as otherwise provided in this Agreement,
the date of each such notice and request shall be deemed to be, and the date on
which each such notice and request shall be deemed given shall be: at the time
delivered, if personally delivered or mailed; when receipt is acknowledged, if
sent by facsimile; and the next Business Day after timely delivery to the
courier, if sent by overnight air courier guaranteeing next Business Day
delivery.
12.3. Entire Agreement; Integration. This Agreement supersedes all
prior agreements between or among any of the parties hereto with respect to the
subject matter contained herein and therein, and such agreements embody the
entire understanding among the parties relating to such subject matter.
12.4. Section Headings. Section headings are for convenience of
reference only and shall not affect the meaning of any provision of this
Agreement.
12.5. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, and all of which shall
together constitute one and the same instrument. All signatures need not be on
the same counterpart.
12.6. Severability. If any provision of this Agreement shall be
invalid or unenforceable, such invalidity or unenforceability shall not affect
the validity and enforceability of the remaining provisions of this Agreement,
unless the result thereof would be unreasonable, in which case the parties
hereto shall negotiate in good faith as to appropriate amendments hereto.
12.7. Termination. This Agreement may be terminated at any time by a
written instrument signed by the Trust, the Corporation and the unanimous
consent of the Holders. Unless sooner terminated in accordance with the
preceding sentence, this Agreement (other than Section 7 hereof) shall terminate
in its entirety on such date as there shall be (a) no Registrable Securities
outstanding, and (b) no securities outstanding which are convertible or
exchangeable into Registrable Securities; provided that any Paired Shares
previously subject to this Agreement shall not be Registrable Securities
following the sale of any such shares in an offering registered pursuant to this
Agreement.
12.8. Starwood Lodging Trust. The parties hereto understand and
agree that the name "Starwood Lodging Trust" is a designation of the Trust and
its Trustees (as Trustees but not personally) under the Declaration of Trust,
and all persons dealing with the Trust shall look solely to the Trust's assets
for the enforcement of any claims against the Trust, and that the Trustees,
officers, agents and security holders of the Trust assume no personal liability
for obligations entered into on behalf of the Trust, and their respective
individual assets shall not be subject to the claims of any person relating to
such obligations.
12.9. Other Registration Rights. Without the prior written consent
of the Required Holders (which consent shall not be unreasonably withheld), the
Trust and the Corporation will not
in the future grant directly or indirectly to any Persons the right to request
the Trust and the Corporation to register any equity securities of the Trust and
the Corporation, or any securities convertible or exchangeable into or
exercisable for such securities if such grant conflicts with the rights of
priority granted to the Holders pursuant to Section 2.10.
12.10. Submission to Jurisdiction. Each of the parties hereto and
each of the Holders irrevocably submits and consents to the jurisdiction of the
United States District Court for the Southern District of New York in connection
with any action or proceeding arising out of or relating to this Agreement, and
irrevocably waives any immunity from jurisdiction thereof and any claim of
improper venue, forum non conveniens or any similar basis to which it might
otherwise be entitled in any such action or proceeding.
12.11. Specific Performance. Each of the parties acknowledges and
agrees that in the event of any breach of this Agreement, the non-breaching
party or parties would be irreparably harmed and could not be made whole by
monetary damages. The parties hereby agree that in addition to any other remedy
to which they may be entitled at law or in equity, they shall be entitled to
compel specific performance of this Agreement in any action instituted in any
court of the United States or any state thereof having subject matter
jurisdiction for such action.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the date first written above.
STARWOOD LODGING TRUST,
a Maryland real estate investment
trust
By: /S/ XXXXXX X. XXXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
STARWOOD LODGING CORPORATION,
a Maryland corporation
By: /S/ XXX XXXXXXXX
-------------------------------------
Name: Xxx Xxxxxxxx
Title: Vice President
HOLDERS:
THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA, on behalf of PRUDENTIAL
PROPERTY INVESTMENT SEPARATE ACCOUNT II
By: /S/ XXXX X. XXXXXXXX
-------------------------------------
Xxxx X. Xxxxxxxx
Vice President
THE XXXX XXXXXXX FAMILY TRUST
By: /S/ XXXXXXX XXXXXXX
-------------------------------------
Xxxxxxx Xxxxxxx
Trustee
/S/ XXXX X. XXXXXXX
-------------------------------------
Xxxx X. Xxxxxxx
/S/ XXXXX X. XXXXXXX
-------------------------------------
Xxxxx Xxxxxxx
/S/ XXXXX-XX XXXXXXX
-------------------------------------
Xxxxx-Xx Xxxxxxx
/S/ XXXXX X. XXXXXXXX, XX.
-------------------------------------
Xxxxx X. Xxxxxxxx, Xx.
/S/ XXXXXX X. XXXXXXXX
-------------------------------------
Xxxxxx X. Xxxxxxxx
/S/ XXXXXX X. XXX, XX
-------------------------------------
Xxxxxx X. Xxx, XX
/S/ XXXX X. XXXXXXX
-------------------------------------
Xxxx X. Xxxxxxx
/S/ XXXXXX X. XXXXX
-------------------------------------
Xxxxxx X. Xxxxx
/S/ XXXX X. XXXXXXXX
-------------------------------------
Xxxx X. Xxxxxxxx
/S/ XXXXX X. XXXXXXXX
-------------------------------------
Xxxxx X. Xxxxxxxx
/S/ XXXX XXXXX
-------------------------------------
Xxxx Xxxxx
/S/ XXXXXXX X. XXXX
-------------------------------------
Xxxxxxx X. Xxxx
/S/ XXXXXX XXXXX
-------------------------------------
Xxxxxx Xxxxx
/S/ XXXXXX XXXXXXXX
-------------------------------------
Xxxxxx Xxxxxxxx
/S/ XXX CLEARWATER
-------------------------------------
Xxx Clearwater
ZAPCO COMMUNICATIONS, INC.
By: /S/ XXXX X. XXXXXXX
-------------------------------------
Xxxx X. Xxxxxxx
Vice President
ZAPCO INTEREST HOLDINGS LIMITED
PARTNERSHIP
By: Zapco Vermont Avenue, Inc.
its General Partner
By: /S/ XXXX X. XXXXXXX
-------------------------------
Xxxx X. Xxxxxxx
Vice President
LOUDOUN INTERTECH DEVELOPMENT CORPORATION
By: /S/ XXXX X. XXXXXXX
-------------------------------------
Xxxx X. Xxxxxxx
Vice President
WESTPORT HOSPITALITY, INC.
By: /S/ XXXX X. XXXXXXX
-------------------------------------
Name: Xxxx X. Xxxxxxx
Title: President
OPERATING PARTNERSHIP AND REALTY PARTNERSHIPS (for
the purposes of acknowledging their obligations
under Section 11 of this Agreement):
SLT REALTY LIMITED PARTNERSHIP,
By: STARWOOD LODGING TRUST,
general partner
By: /S/ XXXXXX X. XXXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
SLC OPERATING LIMITED PARTNERSHIP
By: STARWOOD LODGING CORPORATION,
general partner
By: /S/ XXX XXXXXXXX
-------------------------------------
Name: Xxx Xxxxxxxx
Title: Vice President
SCHEDULE A-1
TO
REGISTRATION RIGHTS AGREEMENT
Unit Holders
Prudential Property Investment Separate Account II
The Xxxx Xxxxxxx Family Trust
Zapco Interest Holdings L.P.
Loudoun Intertech Development Corporation
Xxxx X. Xxxxxxx
Xxxxx Xxxxxxx
Xxxxxx X. Xxx, XX
Xxxxxx X. Xxxxxxxx
Xxxxx-Xx Xxxxxxx
Xxxx X. Xxxxxxx
Xxxxx X. Xxxxxxxx, Xx.
Xxxxxx X. Xxxxx
Xxxx X. Xxxxxxxx
Xxxxx X. Rosinsy
Xxxx Xxxxx
Xxxxxxx X. Xxxx
Xxxxxx Xxxxx
Xxxxxx Xxxxxxxx
Xxx Clearwater
Zapco Communications, Inc.
Westport Hospitality, Inc.
SCHEDULE A-2
TO
REGISTRATION RIGHTS AGREEMENT
Class A Holders
Westport Hospitality, Inc.
Xxxxxx Xxxxxxxx
Xxxxxx Xxx
Xxxxx Xxxxxxx
Xxxx Xxxxxxx
