REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of May 10, 2000 among Charter Municipal Mortgage Acceptance
Company, a Delaware business trust (the "Trust") and Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, a Delaware corporation, and
Meridian Investments, Inc., a Massachusetts corporation (the "Initial
Purchasers").
This Agreement is made pursuant to the Purchase Agreement, dated April
19, 2000 (the "Purchase Agreement"), among the Trust, as issuer of the
Convertible Community Reinvestment Act Preferred Shares Convertible into Common
Shares (the "CRA Preferred Shares"), and the Initial Purchasers, which provides
for, among other things, the sale by the Trust to the Initial Purchasers of the
CRA Preferred Shares. In order to induce the Initial Purchasers to enter into
the Purchase Agreement, the Trust has agreed to provide the registration rights
set forth in this Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"Advice" shall have the meaning set forth in the last paragraph of Section
3 hereof.
"Affiliate" has the same meaning as given to that term in Rule 405 under
the Securities Act or any successor rule thereunder.
"Business Day" means any day other than a Saturday, a Sunday, or a day on
which banking institutions in The City of New York are authorized or required by
law, executive order or regulation to remain closed.
"Closing Time" shall mean the date of Closing, as defined in the Purchase
Agreement.
"Common Shares" means the shares of beneficial interest of the Trust.
"Effectiveness Period" shall have the meaning set forth in Section 2(a)
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"Holder" shall mean holders of Registrable Securities.
"Initial Purchasers" shall have the meaning set forth in the preamble to
this Agreement.
"Inspectors" shall have the meaning set forth in Section 3(l) hereof.
"Issue Date" shall mean May 10, 2000, the date of original issuance of the
CRA Preferred Shares.
"Majority Holders" shall mean the Holders of a majority in interest of
the outstanding Registrable Shares.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, limited liability corporation, or a government or
agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Shelf Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements thereto, including post-effective amendments,
and, in each case, including all documents incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble to
this Agreement.
"Records" shall have the meaning set forth in Section 3(l) hereof.
"Registrable Securities" shall mean the Securities; provided, however, that
Securities shall cease to be Registrable Securities when the earlier of the
following occurs (i) a Shelf Registration Statement with respect to the
Securities for the registration and resale thereof shall have been declared
effective under the Securities Act and such Securities shall have been disposed
of pursuant to such Shelf Registration Statement, (ii) the CRA Preferred Shares
or the related Securities shall have been sold to the public pursuant to
Rule144(k) (or any similar provision then in force, but not Rule144A) under the
Securities Act or the Securities are eligible to be sold without restriction as
contemplated by Rule 144(k) or (iii)the CRA Preferred Shares or the related
Securities shall have ceased to be outstanding.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Trust with this Agreement, including without
limitation: (i)all SEC or National Association of Securities Dealers, Inc. (the
"NASD") registration and filing fees, (ii)all fees and expenses incurred in
connection with compliance with state securities or blue sky laws (including
reasonable fees and disbursements of one counsel for all underwriters or Holders
as a group in connection with blue sky qualification of any of the Registrable
Securities) and compliance with the rules of the NASD, (iii)all expenses
incurred in connection with preparing, word processing, printing and
distributing any Shelf Registration Statement, any Prospectus and any amendments
or supplements thereto, and in preparing or assisting in preparing any other
documents relating to the performance of and compliance with this Agreement,
(iv)all rating agency fees, (v)the fees and disbursements of counsel for the
Trust and of the independent certified public accountants of the Trust,
including the expenses of any "cold comfort" letters required by or incident to
the performance of and compliance with this Agreement, and (vi)the reasonable
fees and expenses of any special experts retained by the Trust in connection
with the Shelf Registration Statement.
"Rule 144(k) Period" shall mean the period of two years (or such shorter
period as may hereafter be referred to in Rule144(k) under the Securities Act
(or similar successor rule)) from
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the later of the date the CRA Preferred Shares were acquired from the Trust or
from an Affiliate of the Trust.
"SEC" shall mean the Securities and Exchange Commission.
"Securities" shall mean the Common Shares into which the CRA Preferred
Shares have been converted or are convertible, as the case may be.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Shelf Registration" shall mean a registration effected pursuant to Section
2(a) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration statement
of the Trust pursuant to the provisions of Section 2(a) hereof which covers all
of the Registrable Securities on an appropriate form under Rule 415 under the
Securities Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case, including the Prospectus contained
therein, all exhibits thereto and all documents incorporated by reference
therein.
"Trust" shall have the meaning set forth in the preamble to this Agreement
and also includes the Trust's successors and assigns.
2. Registration Under the Securities Act.
(a) Shelf Registration. The Trust shall file or cause to be filed,
within 150 days after May 10, 2000, a Shelf Registration Statement providing for
the registration of, and the sale on a continuous or delayed basis by the
Holders of, all of the Registrable Securities and shall use its commercially
reasonable efforts to have such Shelf Registration Statement declared effective
by the SEC as soon as practicable after filing. The Trust will not permit any
securities other than the Registrable Securities to be included in the Shelf
Registration Statement. No Holder of Registrable Securities shall be entitled to
include any of its Registrable Securities in any Shelf Registration pursuant to
this Agreement unless and until such Holder agrees in writing to be bound by all
of the provisions of this Agreement applicable to such Holder and furnishes to
the Trust in writing, within 15 days after receipt of a request therefor, such
information as the Trust may, after conferring with counsel with regard to
information relating to Holders that would be required by the SEC to be included
in such Shelf Registration Statement or Prospectus included therein, reasonably
request for inclusion in any Shelf Registration Statement or Prospectus included
therein. Each Holder as to which any Shelf Registration is being effected agrees
to furnish to the Trust all information with respect to such Holder necessary to
make the information previously furnished to the Trust by such Holder not
materially misleading.
The Trust agrees to use its commercially reasonable efforts to keep
the Shelf Registration Statement continuously effective and the Prospectus
usable for resales during the Rule 144(k) Period (subject to extension pursuant
to the last paragraph of Section 3 hereof), or for such shorter period which
will terminate when all of the Securities covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement or
otherwise cease to be Registrable Securities (the "Effectiveness Period"). The
Trust will, in the event a
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Shelf Registration Statement is declared effective, provide to each Holder a
reasonable number of copies of the Prospectus which is a part of the Shelf
Registration Statement, notify each such Holder when the Shelf Registration
Statement has become effective and take such other actions as are required to
permit unrestricted resales of the Registrable Securities. The Trust further
agrees to supplement or amend the Shelf Registration Statement if and as
required by the rules, regulations or instructions applicable to the
registration form used by the Trust for such Shelf Registration Statement or by
the Securities Act or by any other rules and regulations thereunder for shelf
registrations, and the Trust agrees to furnish to the Holders of Registrable
Securities copies of any such supplement or amendment promptly after its being
used or filed with the SEC.
(b) Expenses. The Trust, as issuer of the Securities, shall pay all
Registration Expenses in connection with any Shelf Registration Statement filed
pursuant to Section 2(a) hereof. Each Holder shall pay all expenses of its
counsel, underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Registrable Securities
pursuant to the Shelf Registration Statement.
(c) Effective Shelf Registration Statement. A Shelf Registration
Statement will not be deemed to have become effective unless it has been
declared effective by the SEC; provided, however, that if, after it has been
declared effective, the offering of Registrable Securities pursuant to such
Shelf Registration Statement is interfered with by any stop order, injunction or
other order or requirement of the SEC or any other governmental agency or court,
such Shelf Registration Statement will be deemed not to have been effective
during the period of such interference.
(d) Listing. The Trust agrees that the Securities covered by the Shelf
Registration Statement will, upon effectiveness of the Shelf Registration
Statement, be listed on the American Stock Exchange.
(e) Liquidated Damages. In the event that:
(i) a Shelf Registration Statement is not filed with the SEC
within 150 days after May 10, 2000, then liquidated damages ("Liquidated
Damages") shall accumulate on the Offering Price of the CRA Preferred Shares at
a rate of 0.25% per annum; provided, however the Trust shall have a 45 day grace
period in respect of Liquidated Damages in the event of the occurrence of a
development involving the Trust or any of its Affiliates which is material but
which has not yet been publicly disclosed;
(ii) a Shelf Registration Statement is not declared effective by
the SEC in accordance with Section 2(a) above, then Liquidated Damages shall
accumulate on the Offering Price of the CRA Preferred Shares at a rate of 0.25%
per annum; or
(iii) a Shelf Registration Statement has been declared effective
and such Shelf Registration Statement ceases to be effective or the Prospectus
usable for resales (A) at any time prior to the expiration of the Effectiveness
Period and (B) if related to corporate developments, public filings with the SEC
or similar events or to correct a material misstatement or omission in the
Prospectus contained in the Shelf Registration Statement, for more than 75
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days(whether or not consecutive) in any twelve-month period, then, following the
day or 75th day, as the case may be, such Shelf Registration Statement ceases to
be effective or the Prospectus usable for resales, Liquidated Damages shall
accumulate on the Offering Price of the CRA Preferred Shares at a rate of 0.25%
per annum;
provided, however, that the Liquidated Damages rate on the Offering Price of the
CRA Preferred Shares may not exceed in the aggregate 0.25% per annum; provided,
further, however, that (1)upon the filing of a Shelf Registration Statement (in
the case of clause(i) above), (2)upon the effectiveness of a Shelf Registration
Statement (in the case of clause(ii) above), or (3)upon such time as the Shelf
Registration Statement which had ceased to remain effective or the Prospectus
usable for resales again becomes effective and usable for resales (in the case
of clause(iii) above), Liquidated Damages on the Offering Price of the CRA
Preferred Shares as a result thereof shall cease to accumulate.
Any amounts of Liquidated Damages due pursuant to Section 2(e)(i),
(ii) or (iii) above will be payable in cash on the next succeeding April 1, July
1, October 1 or January 2, as the case may be, to Holders on the relevant record
dates for the payment of distributions.
(f) Specific Enforcement. Without limiting the remedies available to
the Holders, the Trust acknowledges that any failure by it to comply with its
obligations under Section 2(a) hereof may result in material irreparable injury
to the Holders for which there is no adequate remedy at law, that it would not
be possible to measure damages for such injuries precisely and that, in the
event of any such failure, any Holder may obtain such relief as may be required
to specifically enforce the Trustee's obligations under Section 2(a) hereof.
3. Registration Procedures. In connection with the obligations of the
Trust with respect to the Shelf Registration Statement pursuant to Section 2(a)
hereof, the Trust shall use its commercially reasonable efforts to:
(a) prepare and file with the SEC a Shelf Registration Statement as
prescribed by Section 2(a) hereof within the relevant time period specified
in Section 2(a) hereof on the appropriate form under the Securities Act,
which form shall (i)be selected by the Trust, (ii)be available for the sale
of the Registrable Securities by the selling Holders thereof, and
(iii)comply as to form in all material respects with the requirements of
the applicable form and include all financial statements required by the
SEC to be filed therewith; cause such Shelf Registration Statement to
become effective and remain effective and the Prospectus usable for resales
in accordance with Section 2 hereof; provided, however, that, before filing
any Shelf Registration Statement or the use of the Prospectus or any
amendments or supplements thereto, the Trust shall provide the Holders of
the Securities covered by such Shelf Registration Statement copies of the
Registration Statement and any amendments or supplements thereto (including
copies of any documents to be incorporated by reference therein and all
exhibits thereto) proposed to be filed or used; at least 10 days prior to
such filing or use;
(b) prepare and file with the SEC such amendments and post-effective
amendments to the Shelf Registration Statement as may be necessary to keep
such Shelf Registration Statement effective for the Effectiveness Period;
and cause each Prospectus
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to be supplemented, if so determined by the Trust or requested by the SEC,
by any required prospectus supplement and as so supplemented to be filed
pursuant to Rule 424 (or any similar provision then in force) under the
Securities Act, and comply with the provisions of the Securities Act, the
Exchange Act and the rules and regulations promulgated thereunder
applicable to it with respect to the disposition of all Securities covered
by a Shelf Registration Statement during the Effectiveness Period in
accordance with the intended method or methods of distribution by the
selling Holders thereof described in this Agreement;
(c) notify each Holder of Registrable Securities included in the Shelf
Registration Statement, at least three Business Days prior to filing, that
a shelf registration statement with respect to the Registrable Securities
is being filed and advising such Holder that the distribution of
Registrable Securities will be made in accordance with the method selected
by the Majority Holders; furnish to each Holder of Securities covered by
the Shelf Registration Statement and to each underwriter of an underwritten
offering of Registrable Securities, if any, without charge, as many copies
of each Prospectus, including each preliminary prospectus, and any
amendment or supplement thereto, and such other documents as such Holder or
underwriter may reasonably request, in order to facilitate the public sale
or other disposition of the Registrable Securities; and consent to the use
of the Prospectus or any amendment or supplement thereto by each of the
selling Holders of Registrable Securities included in the Shelf
Registration Statement in connection with the offering and sale of the
Registrable Securities covered by the Prospectus or any amendment or
supplement thereto;
(d) register or qualify the Registrable Securities under all
applicable state securities or "blue sky" laws of such jurisdictions by the
time the Shelf Registration Statement is declared effective by the SEC as
any Holder of Securities covered by a Shelf Registration Statement shall
reasonably request in writing in advance of such date of effectiveness, and
do any and all other acts and things which may be reasonably necessary or
advisable to enable such Holder to consummate the disposition in each such
jurisdiction of such Registrable Securities owned by such Holder; provided,
however, that the Trust shall not be required to (i)qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it would
not otherwise be required to qualify but for this Section 3(d), (ii)file
any general consent to service of process in any jurisdiction where it
would not otherwise be subject to such service of process, (iii)subject
itself to taxation in any such jurisdiction if it is not then so subject,
or (iv) register in any state requiring, as a condition to registration,
escrow or surrender of any Company securities held by any securityholder
other than the Holders;
(e) promptly notify each Holder of Registrable Securities and their
counsel and promptly confirm such notice in writing (i)when a Shelf
Registration Statement has become effective and when any post-effective
amendments thereto become effective, (ii)of any request by the SEC or any
state securities authority for amendments and supplements to a Shelf
Registration Statement or Prospectus or for additional information after
the Shelf Registration Statement has become effective, (iii)of the issuance
by the
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SEC or any state securities authority of any stop order suspending the
effectiveness of a Shelf Registration Statement or the qualification of the
Registrable Securities in any jurisdiction described in Section 3(d) hereof
or the initiation of any proceedings for that purpose, (iv)if, between the
effective date of a Shelf Registration Statement and the closing of any
sale of Registrable Securities covered thereby, the representations and
warranties of the Trust contained in any purchase agreement, securities
sales agreement or other similar agreement cease to be true and correct in
all material respects, (v)of the happening of any event or the failure of
any event to occur or the discovery of any facts, during the Effectiveness
Period, which makes any statement made in a Shelf Registration Statement or
the related Prospectus untrue in any material respect or which causes such
Shelf Registration Statement or Prospectus to omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (vi)of the
reasonable determination of the Trust that a post-effective amendment to
the Shelf Registration Statement would be appropriate;
(f) obtain the withdrawal of any order suspending the effectiveness of
the Shelf Registration Statement at the earliest possible moment;
(g) furnish to each Holder of Registrable Securities covered by the
Shelf Registration Statement, without charge, at least one conformed copy
of the Shelf Registration Statement relating to such Shelf Registration and
any post-effective amendment thereto (without documents incorporated
therein by reference or exhibits thereto, unless requested);
(h) cooperate with the selling Holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends
and registered in such names as the selling Holders or the underwriters may
reasonably request at least two Business Days prior to the closing of any
sale of Registrable Securities pursuant to the Shelf Registration
Statement;
(i) promptly after the occurrence of any event specified in Section
3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, prepare a supplement or
amendment to the Shelf Registration Statement or the Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the
Registrable Securities, such Prospectus will not include any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; and shall notify each Holder to suspend use
of the Prospectus as promptly as practicable after the occurrence of such
an event, and each Holder hereby agrees to suspend use of the Prospectus
until the Trust has amended or supplemented the Prospectus to correct such
misstatement or omission;
(j) a reasonable time prior to the filing of any document which is to
be incorporated by reference into the Shelf Registration Statement or the
Prospectus, provide a reasonable number of copies of such document to the
Holders and make such of the
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representatives of the Trust as shall be reasonably requested by the
Holders of Registrable Securities available for discussion of such
document;
(k) if requested by (x) the Initial Purchasers, in the case where the
Initial Purchasers hold Securities acquired by it upon the conversion of
the CRA Preferred Shares that were part of its initial placement and (y)
Holders of at least 50% of the aggregate offering price of the Registrable
Securities covered thereby: (i)make such representations and warranties to
Holders of such Registrable Securities and the underwriters (if any), with
respect to the business of the Trust and its subsidiaries as then conducted
and with respect to the Shelf Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated by reference
therein, in each case, as are customarily made by issuers to underwriters
in underwritten offerings, and confirm the same if and when requested; (ii)
furnish customary closing documentation in form and substance reasonably
requested and reasonably satisfactory to the managing underwriters (if any)
and the Holders of a majority in amount of the Registrable Securities being
sold; (iii)obtain "cold comfort" letters and updates thereof in form and
substance reasonably satisfactory to the managing underwriters from the
independent certified public accountants of the Trust (and, if necessary,
any other independent certified public accountants of any business acquired
by the Trust for which financial statements and financial data are, or are
required to be, included in the Registration Statement), addressed to each
of the underwriters, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters in
connection with underwritten offerings and such other matters as reasonably
requested by such underwriters in accordance with Statement on Auditing
Standards No. 72; (iv) if an underwriting agreement is entered into, the
same shall contain indemnification provisions and procedures no less
favorable than those set forth in Section4 hereof (or such other provisions
and procedures acceptable to Holders of a majority in amount of the
Registrable Securities being sold and the managing underwriters) customary
for such agreements with respect to all parties to be indemnified pursuant
to said Section (including, without limitation, such underwriters and
selling Holders); and in the case of an underwritten registration, the
above requirements shall be satisfied at each closing under the related
underwriting agreement or as and to the extent required thereunder;
(l) make reasonably available for inspection by any selling Holder of
Registrable Securities who certifies to the Trust that it has a current
intention to sell Registrable Securities pursuant to the Shelf
Registration, any underwriter participating in any such disposition of
Registrable Securities, if any, and any attorney, accountant or other agent
retained by any such selling Holder or underwriter (collectively, the
"Inspectors"), at the offices where normally kept, during the Trust's
normal business hours, all financial and other records, pertinent
organizational and operational documents and properties of the Trust and
its subsidiaries (collectively, the "Records") as shall be reasonably
necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, trustees, employees, agents and
other representatives of the Trust and its subsidiaries to supply all
relevant information in each case reasonably requested by any such
Inspector in connection with such Shelf
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Registration; records and information which the Trust notifies the
Inspectors are confidential shall not be disclosed to any Inspector except
where (i)the disclosure of such Records or information is necessary to
avoid or correct a material misstatement or omission in the Shelf
Registration Statement, (ii)the release of such Records or information is
ordered pursuant to a subpoena or other order from a court of competent
jurisdiction or is necessary in connection with any action, suit or
proceeding or (iii)such Records or information previously has been made
generally available to the public; each Inspector will be required to agree
in writing that Records and information obtained by it as a result of such
inspections shall be deemed confidential and shall not be used by it as the
basis for any market transactions in the securities of the Trust unless and
until such is made generally available to the public through no fault of
such Inspector; and each Inspector will be required to further agree in
writing that it will, upon learning that disclosure of such Records or
information is sought in a court of competent jurisdiction, or in
connection with any action, suit or proceeding, give notice to the Trust
and allow the Trust at its expense to undertake appropriate action to
prevent disclosure of the Records and information deemed confidential;
(m) comply with all applicable rules and regulations of the SEC so
long as any provision of this Agreement shall be applicable and make
generally available to its securityholders earning statements satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar rule promulgated under the Securities Act) no
later than 45 days after the end of any twelve-month period (or 90 days
after the end of any twelve-month period if such period is a fiscal year)
commencing on the first day of the first fiscal quarter of the Trust after
the effective date of a Shelf Registration Statement, which statements
shall cover said twelve-month periods, provided that the obligations under
this Section 3(m) shall be satisfied by the timely filing of quarterly and
annual reports on Forms 10-Q and 10-K under the Exchange Act;
(n) cooperate with each seller of Securities covered by the Shelf
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Securities and their respective counsel in
connection with any filings required to be made with the NASD;
(o) take all other steps necessary to effect the registration, and the
sale on a continuous or delayed basis, of the Registrable Securities
covered by the Shelf Registration Statement contemplated hereby; and
(p) the Trust may require each seller of Registrable Securities as to
which any registration is being effected to furnish to it such information
regarding such seller as may be required by the staff of the SEC to be
included in the Shelf Registration Statement; the Trust may exclude from
such registration the Registrable Securities of any seller who unreasonably
fails to furnish such information within a reasonable time after receiving
such request; and the Trust shall have no obligation to register under the
Securities Act the Registrable Securities of a seller who so fails to
furnish such information.
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Each Holder agrees that, upon receipt of any notice from the Trust of
the occurrence of any event specified in Section 3(e)(ii), 3(e)(iii), 3(e)(v) or
3(e)(vi) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to the Shelf Registration Statement until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(i) hereof or until it is advised in writing (the
"Advice") by the Trust that the use of the Prospectus in such Holder's
possession may be resumed, and, if so directed by the Trust, such Holder will
deliver to the Trust (at the Trust's expense) all copies in such Holder's
possession, other than permanent file copies then in such Holder's possession,
of the Prospectus covering such Registrable Securities current at the time of
receipt of such notice. If the Trust shall give any such notice to suspend the
disposition of Registrable Securities pursuant to the Shelf Registration
Statement, the Trust shall use its commercially reasonable efforts to file and
have declared effective (if an amendment) as soon as practicable after the
resolution of the related matters an amendment or supplement to the Shelf
Registration Statement and the Prospectus and shall extend the period during
which such Shelf Registration Statement is required to be maintained effective
and the Prospectus usable for resales pursuant to this Agreement by the number
of days in the period from and including the date of the giving of such notice
to and including the date when the Trust shall have made available to the
Holders (x)copies of the supplemented or amended Prospectus necessary to resume
such dispositions or (y)the Advice.
4. Indemnification and Contribution. (a) The Trust hereby agrees to
indemnify and hold harmless the Initial Purchasers, each Holder, each
underwriter who participates in an offering of the Registrable Securities, each
Person, if any, who controls any of such parties within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act and each of their
respective directors, officers, employees and agents, as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in a Shelf Registration
Statement (or any amendment thereto) or the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a
material fact required to be stated therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, provided that (subject to Section
4(d) hereof) such settlement is effected with the prior written consent of
the Trust; and
(iii) against any and all expenses whatsoever, as incurred (including
the reasonable fees and disbursements of counsel chosen by such Holder),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission,
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to the extent that any such expense is not paid under subparagraph(i) or
(ii) of this Section 4(a);
provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished in writing to the Trust by such
Holder or underwriter for use in the Shelf Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement thereto).
(b) Each Holder or underwriter agree, severally and not jointly, to
indemnify and hold harmless the Trust, its trustees and officers (including each
officer of the Trust who signed the Shelf Registration Statement) and each
Person, if any, who controls the Trust within the meaning of Section15 of the
Securities Act or Section 20 of the Exchange Act against any and all loss,
liability, claim, damage and expense whatsoever described in the indemnity
contained in Section 4(a) hereof, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Shelf Registration Statement (or any amendment thereto) or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Trust by such Holder expressly for use in
such Shelf Registration Statement (or any amendment thereto) or such Prospectus
(or any amendment or supplement thereto); provided, however, that no Holder
shall be liable for any claims hereunder in excess of the amount of net proceeds
received by such Holder from the sale of its Registrable Securities.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement unless
the failure to provide such notice materially prejudices the defense by the
indemnifying party against such claim. In the case of parties indemnified
pursuant to Section 4(a) or (b) above, counsel to the indemnified parties shall
be selected by such parties. An indemnifying party may participate at its own
expense in the defense of such action; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the indemnified
parties) also be counsel to the indemnified parties. In no event shall the
indemnifying parties be liable for the fees and expenses of more than one
counsel (in addition to local counsel), separate from their own counsel, for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 4 (whether or not the indemnified parties are
actual or potential parties thereto), unless such settlement, compromise or
consent (i)includes an unconditional written release of each indemnified party
from all liability arising out of such litigation, investigation, proceeding or
claim and (ii)does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
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(d) If at any time an indemnified party shall have validly requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 4(a)(ii) effected without its
written consent if (i)such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii)such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii)such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement set forth in this Section4 is for
any reason held to be unenforceable by an indemnified party although applicable
in accordance with its terms, the Trust, on the one hand, and the Holders, on
the other hand, shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by such indemnity agreement
incurred by the Trust and the Holders, as incurred; provided, however, that no
Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any Person that
was not guilty of such fraudulent misrepresentation. As between the Trust, on
the one hand, and the Holders, on the other hand, such parties shall contribute
to such aggregate losses, liabilities, claims, damages and expenses of the
nature contemplated by such indemnity agreement in such proportion as shall be
appropriate to reflect the relative fault of the Trust, on the one hand, and the
Holders, on the other hand, with respect to the statements or omissions which
resulted in such loss, liability, claim, damage or expense, or action in respect
thereof, as well as any other relevant equitable considerations. The relative
fault of the Trust, on the one hand, and of the Holders, on the other hand,
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Trust, on the
one hand, or by or on behalf of the Holders, on the other, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Trust and the Holders of the Registrable
Securities agree that it would not be just and equitable if contribution
pursuant to this Section 4 were to be determined by pro rata allocation or by
any other method of allocation that does not take into account the relevant
equitable considerations. For purposes of this Section 4, each Affiliate of a
Holder, and each director, officer and employee and Person, if any, who controls
a Holder or such Affiliate within the meaning of Section 15 of the Securities
Act shall have the same rights to contribution as such Holder, and each trustee
and officer of the Trust and each Person, if any, who controls the Trust within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act shall have the same rights to contribution as the Trust.
5. Participation in an Underwritten Registration. No Holder may
participate in an underwritten registration hereunder unless such Holder
(a)agrees to sell such Holder's Registrable Securities on the basis provided in
the underwriting arrangement approved by the Persons entitled hereunder to
approve such arrangements and (b)completes and executes all reasonable
questionnaires, powers of attorney, indemnities, underwriting agreements,
lock-up letters and other documents reasonably required under the terms of such
underwriting arrangements.
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6. Selection of Underwriters. The Holders of Registrable Securities
covered by the Shelf Registration Statement who desire to do so may sell the
Securities covered by such Shelf Registration in an underwritten offering,
subject to the provisions of Section 3(l) hereof. In any such underwritten
offering, the underwriter or underwriters and manager or managers that will
administer the offering will be selected by the Holders of a majority in amount
of the Registrable Securities included in such offering; provided, however, that
such underwriters and managers must be reasonably satisfactory to the Trust.
7. Miscellaneous.
(a) Rule 144. For so long as the Trust is subject to the reporting
requirements of Section13 or 15 of the Exchange Act and any CRA Preferred Shares
or Registrable Securities remain outstanding, the Trust will file the reports
required to be filed by it under the Securities Act and Section 13(a) or 15(d)
of the Exchange Act and the rules and regulations adopted by the SEC thereunder;
provided, however, that if the Trust ceases to be so required to file such
reports, it will (a)make publicly available such information as is necessary to
permit sales of its securities pursuant to Rule 144 under the Securities Act,
(b)deliver such information to a prospective purchaser as is necessary to permit
sales of its securities pursuant to Rule 144A under the Securities Act and
(c)take such further action that is reasonable in the circumstances, in each
case, to the extent required from time to time for the conversion of the CRA
Preferred Shares or the sale of the Registrable Securities without registration
under the Securities Act within the limitation of the exemptions provided by
Rule 144 or Rule 144A under the Securities Act, as such rule may be amended from
time to time, or any similar rules or regulations hereafter adopted by the SEC.
Upon the request of any Holder of Registrable Securities, the Trust will deliver
to such Holder a written statement as to whether it has complied with such
requirements.
(b) No Inconsistent Agreements. The Trust has not entered into, and
will not enter into, any agreement which is inconsistent with the rights granted
to the Holders of Registrable Securities in this Agreement or otherwise
conflicts with the provisions hereof. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Trust's other issued and outstanding
securities under any such agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Trust has obtained the written consent of Holders
in amount of a majority of the outstanding Registrable Securities affected by
such amendment, modification, supplement, waiver or departure; provided that no
amendment, modification or supplement or waiver or consent to the departure with
respect to the provisions of Section 4 hereof shall be effective as against any
Holder of Registrable Securities unless consented to in writing by such Holder
of Registrable Securities. Notwithstanding the foregoing sentence, (i)this
Agreement may be amended, without the consent of any Holder of Registrable
Securities, by written agreement signed by the Trust and the Initial Purchasers,
to cure any ambiguity, correct or supplement any provision of this Agreement
that may be inconsistent with any other provision of this Agreement or to make
any other provisions with respect to matters or questions arising under this
Agreement which shall
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not be inconsistent with other provisions of this Agreement, (ii)this Agreement
may be amended, modified or supplemented, and waivers and consents to departures
from the provisions hereof may be given, by written agreement signed by the
Trust and the Initial Purchasers to the extent that any such amendment,
modification, supplement, waiver or consent is, in their reasonable judgment,
necessary or appropriate to comply with applicable law (including any
interpretation of the Staff of the SEC) or any change therein and (iii)to the
extent any provision of this Agreement relates to the Initial Purchasers, such
provision may be amended, modified or supplemented, and waivers or consents to
departures from such provisions may be given, by written agreement signed by the
Initial Purchasers and the Trust.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i)if to a Holder, at the most current address given by such Holder to
the Trust by means of a notice given in accordance with the provisions of this
Section 7(d), which address initially is, with respect to the Initial
Purchasers, the address set forth in the Purchase Agreement; and (ii)if to the
Trust, initially at the Trust's address set forth in the Purchase Agreement and
thereafter at such other address, notice of which is given in accordance with
the provisions of this Section 7(d).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of the Initial
Purchasers, including, without limitation and without the need for an express
assignment, subsequent Holders. If any transferee of any Holder shall acquire
Registrable Securities, in any manner, whether by operation of law or otherwise,
such Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities, such Person
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement and such Person shall be entitled to
receive the benefits hereof.
(f) Third Party Beneficiaries. The registered holders of the CRA
Preferred Shares and the Holders shall be third party beneficiaries of the
agreements made hereunder among the Trust and the Initial Purchasers, and the
Initial Purchasers shall have the right to enforce such agreements directly to
the extent they deem such enforcement necessary or advisable to protect their
rights or the rights of such registered holders or Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
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(i) Governing Law. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN
THE STATE OF NEW YORK. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT, AND
THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY
PROVISIONS RELATING TO CONFLICTS OF LAWS. EACH OF THE PARTIES HERETO AGREES TO
SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF
THE MATTERS CONTEMPLATED HEREBY, IRREVOCABLY WAIVES ANY DEFENSE OF LACK OF
PERSONAL JURISDICTION AND IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY
SUIT, ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT. EACH
OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Securities Held by the Trust or its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the Trust or
any Affiliates shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
Very truly yours,
CHARTER MUNICIPAL MORTGAGE
ACCEPTANCE COMPANY
By: Related Charter, LP, a Delaware
limited partnership, its Manager
By: Related Charter, LLC, a Delaware limited
liability Company, its General Partner
By:
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first
above written:
XXXXXXX XXXXX & CO.
XXXXXXX XXXXX, XXXXXX XXXXXX & XXXXX
INCORPORATED
MERIDIAN INVESTMENTS, INC.
By: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By:
Name:
Title:
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