Exhibit 4.5
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of May 22, 1998, by and among Security Capital U.S. Realty, a
Luxembourg corporation (the "Company"), and Xxxxxxx, Xxxxx & Co. and X.X. Xxxxxx
Securities Ltd. (collectively, the "Initial Purchasers") pursuant to the
Purchase Agreement, dated as of May 14, 1998 (the "Purchase Agreement"), between
the Company and the Initial Purchasers. In addition, it is understood that the
Company intends to list the shares of capital stock of the Company, par value
$2.00 per share (the "Shares"), on the New York Stock Exchange (the "NYSE") on
or prior to December 31, 1998. In order to induce the Initial Purchasers to
enter into the Purchase Agreement, the Company has agreed to provide the
registration rights set forth in this Agreement. The execution of this Agreement
is a condition to the closing under the Purchase Agreement.
The Company agrees with the Initial Purchasers, (i) for their benefit
as Initial Purchasers and (ii) for the benefit of the Holders (as defined below)
from time to time of the Registrable Securities (as defined below) (including
the Initial Purchasers), as follows:
1. Definitions. Capitalized terms used herein without definition shall
have their respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following terms shall have the following meanings:
Affiliate: "Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling or controlled by, or under direct or
indirect common control with, such Person. For purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
Damages Accrual Period: See Section 2(e) hereof.
Damages Payment Date: Each of the semi-annual interest payment dates
provided in the Indenture, whether or not Liquidated Damages are payable on such
date.
Effectiveness Period: The period commencing with the date hereof and
ending on the earliest to occur of (i) two years from the date of the Offering
Circular, (ii) the time when there are no outstanding Registrable Securities, or
(iii) the time when all outstanding Registrable Securities may be resold without
registration pursuant to Rule 144(k) under the Securities Act.
Event: See Section 2(e) hereof.
Event Date: See Section 2(e) hereof.
Exchange Act: The United States Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
Holder: Any Person that is the record owner of Registrable Securities.
Indenture: The Indenture, dated as of May 22, 1998, between the
Company and the Trustee thereunder, together with the First Supplemental
Indenture, dated as of May 22, 1998, between the Company and the Trustee
thereunder, pursuant to which the Securities are being issued, as amended,
modified or supplemented from time to time in accordance with the terms thereof.
Initial Purchasers: See the first paragraph of this Agreement.
Liquidated Damages: See Section 2(e) hereof.
Losses: See Section 6 hereof.
NYSE: See the first paragraph of this Agreement.
Person: An individual, partnership, limited liability company,
corporation, trust, or unincorporated organization, or government agency or
political subdivision thereof.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A under the Securities Act), as amended or
supplemented by any amendment or prospectus supplement, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
Purchase Agreement: See the first paragraph of this Agreement.
Record Holder: With respect to any Damages Payment Date relating to
any Security as to which any Liquidated Damages have accrued, the registered
Holder of such Security on the record date with respect to the interest payment
date under the Indenture on which such Damages Payment Date shall occur.
Registrable Securities: The Securities and the Shares issuable upon
conversion of the Securities until, in the case of any such Securities or
Shares, (i) they are effectively registered under the Securities Act and
disposed of in accordance with the Registration Statement covering them, (ii)
they are saleable by the holder thereof pursuant to Rule 144(k) or (iii) they
are sold to the public pursuant to Rule 144, and, as a result of the event or
circumstance described in any of the foregoing clauses (i) through (iii), the
legends with respect to transfer restrictions required under the Indenture
(other than any such legends required solely as the consequence of the fact that
the Registrable Securities (or the Securities, upon the conversion of which,
such Registrable
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Securities were issued or are issuable) are owned by, or were previously owned
by, the Company or an Affiliate of the Company) are removed or removable in
accordance with the terms of the Indenture.
Registration Statement: Any registration statement of the Company
which covers any of the Registrable Securities pursuant to the provisions of
this Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all material incorporated by reference or deemed to be incorporated by reference
in such registration statement.
Rule 144: Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
Rule 144A: Rule 144A under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
SEC: The United States Securities and Exchange Commission or any
successor federal agency that administers the Securities Act or Exchange Act.
Securities Act: The United States Securities Act of 1933, as amended,
and the rules and regulations promulgated by the SEC thereunder.
Shares: See the first paragraph of this Agreement.
Shelf Registration Statement: See Section 2(a) hereof.
Suspension Period: See Section 2(d)(ii) hereof.
Trustee: The Trustee under the Indenture.
Trust Indenture Act: The United States Trust Indenture Act of 1939, as
amended, and the rules and regulations promulgated by the SEC thereunder.
2. Registration.
(a) Upon the listing of the Shares on the NYSE, the Company will use
its best efforts to prepare and file with, and have declared effective by, the
SEC three Registration Statements (as described below) with respect to the
Registrable Securities.
The Company will use its best efforts to file an initial Registration
Statement with the SEC by December 31, 1998 and will use its best efforts to
have such initial Registration Statement declared effective by the SEC by March
1, 1999. The Company will use its best efforts to have a second Registration
Statement declared effective by the SEC by July 31, 1999 (but not prior to April
30, 1999). The Company will keep each such Registration Statement
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effective for a period of 30 consecutive days from the effective date of the
respective Registration Statement, except as provided herein. The Company will
use its best efforts to have a third Registration Statement, a Registration
Statement for an offering to be made on a continuous basis pursuant to Rule 415
of the Securities Act (a "Shelf Registration Statement"), declared effective by
the SEC by March 1, 2000. The Company will use its best efforts to keep the
Shelf Registration Statement continuously effective until the expiration of the
Effectiveness Period. Each such Registration Statement shall register the resale
from time to time by Holders thereof of all of the Registrable Securities. The
Shelf Registration Statement shall be on a Form F-3, or other appropriate short-
form registration statement allowing incorporation by reference and permitting
registration of such Registrable Securities for resale by such Holders.
(b) If a Registration Statement ceases to be effective for any reason
as a result of the issuance of a stop order by the SEC, the Company shall use
its reasonable best efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof.
(c) The Company shall supplement and amend a Registration Statement if
required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Registration Statement.
(d) Each Holder of Registrable Securities agrees that if the Holder
wishes to sell its Registrable Securities pursuant to a Registration Statement
and related Prospectus, it will do so only in accordance with this Section 2(d).
Each Holder of Registrable Securities agrees to give notice to the Company at
least three New York Business Days (but no more than 30 New York Business Days)
prior to any intended distribution of Registrable Securities under a
Registration Statement, which notice shall specify the date on which such Holder
intends to begin such distribution and such information with respect to such
Holder and the intended distribution of Registrable Securities by such Holder as
may be required to amend the Registration Statement or supplement the related
Prospectus with respect to such intended distribution of Registrable Securities
by such Holder. As soon as practicable after the date such notice is provided by
or on behalf of a Holder, and in any event within two New York Business Days
after such date, the Company shall either:
(i) (A) If necessary, prepare and file with the SEC a post-
effective amendment to a Registration Statement, a supplement to the related
Prospectus, a supplement or amendment to any document incorporated therein by
reference, or any other required document so that such Registration Statement
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and so that, as thereafter delivered to purchasers of the
Registrable Securities being sold thereunder, such Prospectus will not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading; (B) provide the
Holders copies of any documents filed pursuant to Section 2(d)(i)(A) hereof, or
take any other actions reasonably necessary to register the sale of any
Registrable Securities of such Holder and to identify such
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Holder as a selling securityholder; and (C) inform the Holders that the Company
has complied with its obligations in Section 2(d)(i)(A) hereof (or, if the
Company has filed a post-effective amendment to a Registration Statement which
has not yet been declared effective, the Company will notify the Holders to that
effect, it will use its reasonable best efforts to secure the effectiveness of
such post-effective amendment and will immediately notify the Holders when such
post-effective amendment has become effective);
(ii) in the event (A) of the happening of any event of the kind
described in Section 3(c)(ii), 3(c)(iii), 3(c)(iv), 3(c)(v) or 3(c)(vi) hereof
or (B) that, in the good faith judgment of the Company, it is advisable to
suspend the effectiveness of a Registration Statement or use of the Prospectus
for a discrete period of time due to pending material corporate developments or
similar material events that have not yet been publicly disclosed and as to
which the Company in good faith believes public disclosure would be prejudicial
to the Company (each such period, a "Suspension Period"), the Company shall
deliver a certificate in writing, signed by an authorized executive officer of
the Company, to the Holders, to the effect of the foregoing and, upon receipt of
such certificate, each such Holder will cease use of a Prospectus until such
Holder's receipt of copies of the supplemented or amended Prospectus provided
for in Section 2(d)(i)(A) hereof, or until it is advised in writing by the
Company that the Prospectus may be used, and has received copies of any
additional or supplemental filings that are incorporated or deemed incorporated
by reference in such Prospectus, if such copies are requested by Holders in
writing. The Company will use its reasonable best efforts to ensure that the use
of the Prospectus may be resumed as soon as reasonably practicable and, in the
case of a pending development or event referred to in Section 2(d)(ii)(B)
hereof, as soon as the earlier of (x) public disclosure of such pending material
corporate development or similar material event or (y) such time as the Company
determines not to proceed with the pending development or event and, therefore,
no public disclosure is necessary.
(e) The parties hereto agree that the Holders of Registrable
Securities will suffer damages, and that it would not be feasible to ascertain
the extent of such damages with precision, if (i) the Shares are not listed on
the NYSE by December 31, 1998, (ii) an initial Registration Statement has not
been filed with the SEC by December 31, 1998, (iii) the initial Registration
Statement has not been declared effective by the SEC by March 1, 1999 or is not
kept effective for 30 consecutive days (except as described in Section 2(d)(ii)
hereof), (iv) a second Registration Statement has not been declared effective by
the SEC by July 31, 1999 (but not prior to April 30, 1999) or is not kept
effective for 30 consecutive days (except as described in Section 2(d)(ii)
hereof), (v) the Shelf Registration Statement has not been declared effective by
the SEC by March 1, 2000 or (vi) the aggregate number of days in any Suspension
Period exceeds 45 days, whether consecutive or not, in any three-month period or
90 days, whether consecutive or not, in any twelve-month period (each of the
events of a type described in any of the foregoing clauses (i) through (vi) are
individually referred to herein as an "Event," and each of the respective listed
dates in the case of clause (i) through (v) and the date on which the duration
of a Suspension Period exceeds the number of days permitted by Section 2(e)(vi)
hereof, being referred to herein as an "Event Date"). Events shall be deemed to
continue until the date of the termination of such Event, which shall be the
following dates with respect to the
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respective types of Events: the date on which the Shares are listed on the NYSE
in the case of an Event of the type described in clause (i), the date the
initial Registration Statement is filed with the SEC in the case of an Event of
the type described in clause (ii), the date each respective Registration
Statement is declared effective by the SEC in the case of an Event of the types
described in clause (iii), (iv) and (v) and termination of the Suspension Period
which caused the aggregate number of days of suspension permitted by Section
2(e)(vi) hereof to be exceeded.
Accordingly, upon the occurrence of any Event and until such time as there
are no Events which have occurred and are continuing (a "Damages Accrual
Period"), commencing on the date following an Event Date on which such Damages
Accrual Period began, the Company agrees to pay, as liquidated damages, and not
as a penalty, an additional amount of interest (the "Liquidated Damages"): (A)
to each Holder in connection with an Event described in clauses (i) through (v)
of the immediately preceding paragraph, accruing at a rate equal to one-quarter
of one percent per annum (25 basis points) on the aggregate principal amount at
maturity of Securities held by such Holder and (B) if the Damages Accrual Period
arises in connection with an Event described in clause (vi) of the immediately
preceding paragraph or arises in connection with an Event described in clauses
(i) through (v) of the immediately preceding paragraph and continues for a
period in excess of 90 days from the Event Date, from and after the end of such
90-day period until such time as there are no Events which have occurred and are
continuing in excess of 90 days from the respective Event Date, to each Holder,
accruing at a rate equal to one-half of one percent per annum (50 basis points)
on the aggregate principal amount at maturity of Securities held by such Holder.
Liquidated Damages only affect the interest rate currently payable on the
Securities and do not affect the rate at which additional interest accretes on
the Securities from their offering price. Notwithstanding the foregoing, no
Liquidated Damages shall accrue under clause (A) of the preceding sentence
during any period for which Liquidated Damages accrue under clause (B) of the
preceding sentence with respect to the same Event. Except as to an Event
described in clause (i) of the immediately preceding paragraph which is
continuing for a period in excess of 90 days for which Liquidated Damages shall
accrue until the earlier of the listing of the Shares on the NYSE or the payment
of the principal at maturity on the Securities or their earlier conversion or
redemption, no Liquidated Damages shall accrue as to any Registrable Securities
from and after the expiration of the Effectiveness Period. The rate of accrual
of the Liquidated Damages with respect to any period shall not exceed the rate
provided for in this paragraph (i.e., one-half of one percent per annum (50
basis points)) notwithstanding the occurrence of multiple concurrent Events.
Liquidated Damages on the Securities will be paid by the Company to the
Holders of such Securities on each Interest Payment Date (as defined in the
Indenture) in the same manner as for interest on the Securities as set forth in
Section 307 of the Indenture. No payment shall be made for Liquidated Damages
accrued through the applicable conversion date with respect to any Security or
portion thereof converted into Shares prior to a Damages Payment Date as the
delivery of the Shares into which the Security is convertible will be deemed to
satisfy the Company's obligation to pay the principal amount of the Security,
accrued but unpaid interest and Liquidated Damages. The Trustee shall be
entitled, on behalf of the Holders to seek any available remedy for the
enforcement of this Agreement, including for the payment of such
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Liquidated Damages. Notwithstanding the foregoing, the parties agree that the
sole damages payable for a violation of the terms of this Agreement with respect
to which Liquidated Damages are expressly provided shall be such Liquidated
Damages. Nothing shall preclude a Holder of Registrable Securities from pursuing
or obtaining specific performance or other equitable relief with respect to this
Agreement.
The parties hereto agree that the Liquidated Damages provided for in this
Section 2(e) constitute a reasonable estimate of the damages that may be
incurred by Holders of Registrable Securities by reason of the failure of the
Shares to be listed on the NYSE or the failure of a Registration Statement to be
filed with the SEC, declared effective by the SEC, or available (absolutely or
as a practical matter) for effecting resales of Registrable Securities, as the
case may be, in accordance with the provisions hereof.
3. Registration Procedures. In connection with the Company's registration
obligations under Section 2 hereof, the Company shall as expeditiously as
possible:
(a) Prepare and file with the SEC the Registration Statement or
Registration Statements on any appropriate form (except with respect to the
Shelf Registration Statement) under the Securities Act available for the sale of
the Registrable Securities by the Holders thereof, and use its best efforts to
cause each such Registration Statement to become effective and remain effective
as provided herein; provided, that before filing with the SEC any such
Registration Statement or Prospectus or any amendment or supplement thereto
(other than documents that would be incorporated or deemed to be incorporated
therein by reference and that the Company is required by applicable securities
laws or stock exchange requirements to file) the Company shall furnish to the
Initial Purchasers and the Holders (if requested by the Holders) copies of all
such documents proposed to be filed, which documents will be subject to the
review of the Initial Purchasers and any such Holders and the Company shall (i)
use its reasonable best efforts to reflect in each such document, when so filed
with the SEC, such comments as the Initial Purchasers and such Holders
reasonably and in a timely fashion may propose and to which the Company does not
reasonably object and (ii) not file any such document (other than such documents
which, upon filing, would be incorporated or deemed to be incorporated by
reference therein and that the Company is required by applicable securities laws
or stock exchange requirements to file) to which the Initial Purchasers or the
Holders of a majority of the Registrable Securities covered by such Registration
Statement shall reasonably object in writing within two full New York Business
Days. The Company shall take such action as may be necessary so that (i) any
Registration Statement and any Prospectus or any amendment or supplement thereto
(and each report or other document incorporated therein by reference in each
case) complies in all material respects with the Securities Act and the Exchange
Act and (ii) any Registration Statement and any Prospectus and any amendment or
supplement thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading.
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(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement continuously effective for the applicable period
specified in Section 2; cause the related Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 (or any similar provisions then in force) under the Securities Act; and
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such Registration Statement during the applicable
period in accordance with the intended methods of disposition by the sellers
thereof set forth in such Registration Statement as so amended or such
Prospectus as so supplemented.
(c) Notify the Holders and the Initial Purchasers promptly, and (if
requested by any such Person) confirm such notice in writing, (i) when a
Prospectus, any Prospectus supplement, a Registration Statement or a post-
effective amendment to a Registration Statement has been filed with the SEC,
and, with respect to a Registration Statement or any post-effective amendment,
when the same has been declared effective by the SEC, (ii) of any request by the
SEC or any other federal or state governmental authority for amendments or
supplements to a Registration Statement or related Prospectus or for additional
information, (iii) of the issuance by the SEC or any other federal governmental
authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation or threatening of any proceedings for that purpose,
(iv) the receipt by the Company of any notification with respect to the
suspension of the qualification of the securities included therein for sale in
any jurisdiction or the initiation of any proceeding for such purpose; (v) of
the receipt by the Company of any notification with respect to the suspension of
the qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, (vi) of the existence of any fact or happening of
any event which makes any statement of a material fact in such Registration
Statement or related Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue or which would require the making of
any changes in the Registration Statement or Prospectus in order that, in the
case of the Registration Statement, it will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and that in the case
of the Prospectus, it will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading (which notice shall be accompanied by an instruction to
suspend the use of the Prospectus until the requisite changes have been made),
and (vii) of the Company's determination that a post-effective amendment to a
Registration Statement would be appropriate.
(d) Use its reasonable best efforts to prevent the issuance, and if
issued 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 any of the Registrable Securities for sale
in any jurisdiction, at the earliest possible moment.
(e) If reasonably requested by the Initial Purchasers or the Holders
of a majority of the Registrable Securities being sold and reasonably agreed to
by the Company, (i)
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promptly incorporate in a Prospectus supplement or post-effective amendment to a
Registration Statement such information as the Initial Purchasers or such
Holders, in connection with any offering of Registrable Securities, agree should
be included therein as required by applicable law, and (ii) make all required
filings of such Prospectus supplement or such post-effective amendment as soon
as practicable after the Company has received notification of the matters to be
incorporated in such Prospectus supplement or post-effective amendment;
provided, that the Company shall not be required to take any actions under this
Section 3(e) that are not, in the reasonable opinion of counsel for the Company,
in compliance with applicable law.
(f) Furnish to the Initial Purchasers and each Holder (if requested in
writing), without charge, at least one conformed copy of each Registration
Statement and any amendment thereto, including financial statements and
schedules but excluding all documents incorporated or deemed to be incorporated
therein by reference and all exhibits (unless requested in writing by the
Initial Purchasers and/or any Holder).
(g) Deliver to each selling Holder and the Initial Purchasers in
connection with any offering of Registrable Securities, without charge, as many
copies of the Prospectus or Prospectuses relating to such Registrable Securities
and any amendment or supplement thereto as such persons may reasonably request;
and the Company hereby consents to the use of such Prospectus or each amendment
or supplement thereto by each of the selling Holders of Registrable Securities,
in connection with any offering and sale of the Registrable Securities covered
by such Prospectus or any amendment or supplement thereto.
(h) Use its reasonable efforts if requested by a Holder to obtain
"cold comfort" letters at the time of effectiveness of a Registration Statement
from the independent public accountants of the Company (and, if necessary, any
other independent public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements and financial
data are, or are required to be, included in a Registration Statement),
addressed (where reasonably possible) to each selling Holder of Registrable
Securities registered thereunder (provided such Holder so requests and furnishes
the accountants with such representations as the accountants customarily require
in similar situations), in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with a shelf
registration statement.
(i) Prior to any public offering of Registrable Securities, to
register or qualify or cooperate with the selling Holders in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States as
any selling Holder reasonably requests in writing; keep each such registration
or qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective and do any and all other
acts or things necessary or advisable to enable the offer and sale in such
jurisdictions of the Registrable Securities covered by the applicable
Registration Statement; provided, that the Company will not be required to (i)
qualify generally to do business in any jurisdiction where it is not then so
qualified or (ii) take any action that would
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subject it to general service of process in suits or to taxation in any such
jurisdiction where it is not then so subject.
(j) Cause the Registrable Securities covered by the applicable
Registration Statement to be registered with or approved by such other
governmental agencies or authorities within the United States, except as may be
required solely as a consequence of the nature of such selling Holder, in which
case the Company will cooperate in all reasonable respects with the filing of
such Registration Statement and the granting of such approvals, as may be
necessary to enable the selling Holder or Holders thereof, to consummate the
disposition of such Registrable Securities.
(k) During any period (other than during a Suspension Period),
immediately upon the existence of any fact or the occurrence of any event as a
result of which a Registration Statement shall contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, or a Prospectus
shall contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, promptly prepare and file a post-effective amendment to each
Registration Statement or a supplement to the related Prospectus or any document
incorporated therein by reference or file any other required document (such as a
Current Report on Form 6-K) that would be incorporated by reference into the
Registration Statement so that the Registration Statement shall not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading,
and so that the Prospectus will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, as thereafter delivered to the purchasers
of the Registrable Securities being sold thereunder, and, in the case of a post-
effective amendment to a Registration Statement, use its best efforts to cause
it to become effective as soon as practicable.
(l) Comply with all applicable rules and regulations of the SEC and
make generally available earning statements (which need not be audited)
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 12-month period (or 90 days after the end of
any 12-month period if such period is a fiscal year) commencing on the first day
of the first fiscal quarter of the Company commencing after the effective date
of a Registration Statement, which statements shall cover said 12-month periods.
(m) If certificates are to be delivered, cooperate with the selling
Holders of Registrable Securities and, as applicable, the Trustee and the
transfer agent for the Shares, to facilitate the timely preparation and delivery
of certificates representing Registrable Securities to be sold pursuant to any
Registration Statement free of any restrictive securities legends; and enable
such Registrable Securities to be in such denominations and registered in such
names as the Holders may request.
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(n) The Company shall cause the Indenture to be qualified under the
Trust Indenture Act in a timely manner; and in connection with such
qualification, the Company shall cooperate with the Trustee under the Indenture
and the Holders (as defined in the Indenture) to effect such changes to the
Indenture as may be required for such Indenture to be so qualified in accordance
with the terms of the Trust Indenture Act.
(o) Provide the transfer agent for the Securities and the Shares with
certificates for the Registrable Securities which are in a form eligible for
deposit with The Depository Trust Company.
(p) Cooperate and assist in any filings required to be made with the
National Association of Securities Dealers, Inc.
(q) The Company will use its reasonable efforts to take all other
steps necessary to effect the registration, offering and sale of the Registrable
Securities covered by any Registration Statement contemplated hereby.
4. Holder's Obligations. Each Holder agrees, by acquisition of the
Securities and Registrable Securities, that no Holder of Registrable Securities
shall be entitled to sell any of such Registrable Securities pursuant to a
Registration Statement or to receive a Prospectus relating thereto, unless such
Holder has furnished the Company with the notice required pursuant to Section
2(d) hereof, such notice to include such other information regarding such Holder
and the distribution of such Registrable Securities as may be required to be
included in the Registration Statement or the Prospectus or as the Company may
from time to time reasonably request. The Company may exclude from such
registration the Registrable Securities of any Holder who does not furnish such
information provided above for so long as such information is not so furnished.
Each Holder of Registrable Securities as to which any Registration Statement is
being effected agrees promptly to furnish to the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such Holder not misleading. Any sale of any Registrable
Securities by any Holder shall constitute a representation and warranty by such
Holder that the information relating to such Holder and its plan of distribution
is as set forth in the Prospectus delivered by such Holder in connection with
such disposition, that such Prospectus does not as of the time of such sale
contain any untrue statement of a material fact relating to such Holder or its
plan of distribution and that such Prospectus does not as of the time of such
sale omit to state any material fact relating to such Holder or its plan of
distribution necessary to make the statements in such Prospectus, in light of
the circumstances under which they were made, not misleading.
5. Registration Expenses. All fees and expenses incident to the
Company's performance of or compliance with this Agreement shall be borne by the
Company whether or not any of the Registration Statements become effective.
Such fees and expenses shall include, without limitation, (i) all registration
and filing fees (including, without limitation, fees and expenses (x) with
respect to filings required to be made with the National Association of
Securities Dealers, Inc. and (y) of compliance with federal securities or Blue
Sky laws
11
(including, without limitation, fees and disbursements in connection with Blue
Sky qualifications of the Registrable Securities laws of such jurisdictions as
the Holders of a majority of the Registrable Securities being sold may
designate)), (ii) printing expenses (including, without limitation, expenses of
printing certificates for Registrable Securities in a form eligible for deposit
with The Depository Trust Company and of printing prospectuses if the printing
of prospectuses is requested by the Holders of a majority of the Registrable
Securities included in any Registration Statement), (iii) reasonable fees and
disbursements of counsel for the Company in connection with each Registration
Statement, (iv) fees and disbursements of all independent certified public
accountants of the Company, (v) Securities Act liability insurance obtained by
the Company in its sole discretion and (vi) listing of the Shares on the NYSE.
In addition, the Company shall pay its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expense of any annual audit, the fees and
expenses incurred in connection with the listing of the securities to be
registered on any securities exchange on which similar securities issued by the
Company are then listed and the fees and expenses of any Person, including
special experts, retained by the Company. Notwithstanding the provisions of this
Section 5, each seller of Registrable Securities shall pay all selling expenses
(including all broker's commissions and discounts) and all registration expenses
to the extent, but only to the extent, that the Company is prohibited by
applicable Blue Sky laws from paying for or on behalf of such seller of
Registrable Securities.
6. Indemnification.
---------------
(a) Indemnification by the Company. The Company shall indemnify and
hold harmless each Initial Purchaser, each Holder and each Person, if any, who
controls any Holder (within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act), and the directors, officers, employees
and agents of each such Person, from and against all losses, claims,
liabilities, damages and expenses, joint or several (including, without
limitation, any legal or other costs or expenses reasonably incurred in
connection with investigating, defending against or appearing as a third-party
witness in connection with any such loss, claim, liability, damage or expense
(or actions in respect thereof) (collectively, "Losses"), to which such party or
such controlling person may become subject under the Securities Act or
otherwise, insofar as such Losses arise out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus or in any amendment or supplement thereto
or in any preliminary prospectus, or arise out of or based upon any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse,
as incurred, each such indemnified party for each such Loss, except insofar as
such Losses arise out of or are based upon the information relating to any
Holder furnished to the Company in writing by such Holder expressly for use
therein; provided, that the Company shall not be liable to any Holder of
Registrable Securities (or any Person controlling such Holder) to the extent
that any such Losses arise out of or are based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any preliminary
prospectus if either (A)(i) such Holder failed to send or deliver a copy of the
Prospectus with or prior to the delivery of written confirmation of the sale by
such Holder to the Person asserting the claims from which such Losses arise and
(ii) the
12
Prospectus would have corrected such untrue statement or alleged untrue
statement or such omission or alleged omission, or (B)(x) such untrue statement
or alleged untrue statement, omission or alleged omission is corrected in an
amendment or supplement to the Prospectus and (y) having previously been
furnished by or on behalf of the Company with copies of the Prospectus as so
amended or supplemented, such Holder thereafter fails to deliver such Prospectus
as so amended or supplemented, with or prior to the delivery of written
confirmation of the sale of a Registrable Security to the Person asserting the
claim from which such Losses arise.
(b) Indemnification by Holder of Registrable Securities. Each Holder
agrees severally and not jointly to indemnify and hold harmless the Company and
each Person, if any, who controls the Company (within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act), and each
Initial Purchaser and the Holders, and the directors, officers (including,
without limitation, each director and officer of the Company who signs any
Registration Statement), employees and agents of each such Person, from and
against all Losses to which such party or such controlling Person may become
subject under the Securities Act or otherwise, insofar as such Losses arise out
of or based upon any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement or Prospectus or in any amendment
or supplement thereto or in any preliminary prospectus, or arise out of or based
upon any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading
in each case, to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission is contained in any
information relating to such Holder so furnished in writing by such Holder to
the Company expressly for use in such Registration Statement or Prospectus, and,
subject to the limitation set forth immediately preceding this clause, will
reimburse, as incurred, any legal or other expenses reasonably incurred by the
Company or any such Initial Purchaser, other Holder or director, officer or
controlling person in connection with investigating, defending against or
appearing as a third-party witness in connection with any such loss, claim,
liability, damage or expense or any action in respect thereof. In no event
shall the liability of any selling Holder of Registrable Securities hereunder be
greater in amount than the dollar amount of the proceeds received by such Holder
upon the sale of the Registrable Securities giving rise to such indemnification
obligation.
(c) Conduct of Indemnification Proceedings. In case any proceeding
(including any governmental investigation) shall be instituted involving any
Person in respect of which indemnity may be sought pursuant to either of the two
immediately preceding paragraphs, such Person (the "indemnified party") shall
promptly notify the Person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to
13
the retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and the indemnified party shall have reasonably concluded that
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for (a) the fees and expenses of more than one separate
firm (in addition to any local counsel) for all Holders and all Persons, if any,
who control any Holder within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act, and (b) the fees and expenses of more
than one separate firm (in addition to any local counsel) for the Company, its
directors, its officers who sign a Registration Statement and each Person, if
any, who controls the Company within the meaning of either such Section, and
that all such fees and expenses shall be reimbursed as they are incurred, it
being understood, however, that in the case of paragraph (a) of this Section 6,
the indemnifying party's obligation shall extend to liability for the fees and
expenses of one separate firm (in addition to any one local counsel for the
Initial Purchasers and their related indemnified parties and the Holders and
their related indemnified parties to the extent any of the foregoing indemnified
parties are parties to such action or actions. All fees and expenses reimbursed
pursuant to this paragraph (c) shall be reimbursed as they are incurred. In the
case of any such separate firm for the Company, and such directors, officers and
control Persons of the Company, such firm shall be designated in writing by the
Company. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) Contribution. If the indemnification provided for in this
Section 6 is unavailable to an indemnified party under Section 6(a) or 6(b)
hereof in respect of any Losses or is unavailable or insufficient, for any
reason, to hold such indemnified party harmless, then each applicable
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 in such proportion as is appropriate to reflect the relative
fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the statements
or omissions or alleged statements or omissions that resulted in such Losses, as
well as any other relevant equitable considerations. The relative fault of the
Holders on the one hand and the Company 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 Holders on the one hand or by the Company
on the other hand, the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission and
any other
14
equitable considerations appropriate in the circumstances. The Holders'
respective obligations to contribute hereunder are several in proportion to the
respective number of Registrable Securities they have sold pursuant to a
Registration Statement, and not joint. For purposes of this Section 6(d), each
person, if any, who controls a Holder 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 such Holder, and each director of the Company, each officer of
the Company and each Person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act, shall
have the same rights to contribution as the Company.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by pro rata or pro
capita allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the Losses
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating,
defending against or appearing as a third-party witness in connection with any
such Loss. Notwithstanding this Section 6(d), an indemnifying party that is a
selling Holder of Registrable Securities shall not be required to contribute any
amount in excess of the amount by which the total price at which the Registrable
Securities sold by such indemnifying party and distributed to the public were
offered to the public exceeds the amount of any damages which such indemnifying
party has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
The indemnity, contribution and expense reimbursement obligations of the
Company hereunder shall be in addition to any liability the Company may
otherwise have hereunder, under the Purchase Agreement or otherwise. The
provisions of this Section 6 shall survive so long as Registrable Securities
remain outstanding, notwithstanding any transfer of the Registrable Securities
by any Holder or any termination of this Agreement.
The indemnity and contribution provisions contained in this Section 6 shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of any Holder or
any Person controlling any Holder, or the Company, its officers or directors or
any Person controlling the Company and (iii) the sale of any Registrable
Securities by any Holder. The remedies provided for in this Section 6 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
15
7. Information Requirements.
------------------------
(a) The Company shall timely file the reports required to be filed by
it under the Securities Act and the Exchange Act, and if at any time the Company
is not required to file such reports and is not exempt from reporting pursuant
to Rule 12g3-2(b) under the Exchange Act, it will, upon the request of any
Holder of Registrable Securities, make available other information so long as
necessary to permit sales pursuant to Rule 144 and Rule 144A under the
Securities Act. The Company further covenants that it will cooperate with any
Holder of Registrable Securities and take such further reasonable action as any
Holder of Registrable Securities may reasonably request, all to the extent
required from time to time to enable such Holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144 and Rule 144A under the Securities Act. Upon the
request of any Holder of Registrable Securities, the Company shall deliver to
such Holder a written statement as to whether it has complied with such filing
requirements. Notwithstanding the foregoing, nothing in this Section 7 shall be
deemed to require the Company to register any of its securities under any
section of the Exchange Act.
(b) The Company shall comply with all other requirements set forth in
the instructions to Form F-3 in order to allow the Company to be eligible to
file registration statements on Form F-3.
8. Miscellaneous.
-------------
(a) Remedies. In the event of a breach by the Company of its
obligations under this Agreement, each Holder of Registrable Securities, in
addition to being entitled to exercise all rights granted by law, including,
without limitation, recovery of damages, will be entitled to specific
performance of its rights under this Agreement, provided that the sole damages
payable for a violation of the terms of this Agreement for which Liquidated
Damages are expressly provided pursuant to Section 2(e) hereof shall be such
Liquidated Damages. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of any
of the provisions of this Agreement and hereby further agrees that, in the event
of any action for specific performance in respect of such breach, it shall waive
the defense that a remedy at law would be adequate.
(b) No Conflicting Agreements. The Company has not, as of the date
hereof, and shall not, on or after the date of this Agreement, enter into any
agreement with respect to its securities which conflicts with the rights granted
to the Holders of Registrable Securities in this Agreement. The Company
represents and warrants that the rights granted to the Holders of Registrable
Securities hereunder do not in any way conflict with the rights granted to the
holders of the Company's securities under any other agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and
16
waivers or consents to departures from the provisions hereof may not be given,
unless the Company has obtained the written consent of Holders of a majority of
the then outstanding Registrable Securities. Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of Holders of Registrable Securities
whose securities are being sold pursuant to a Registration Statement and that
does not directly or indirectly affect the rights of other Holders of
Registrable Securities may be given by Holders of at least a majority of the
Registrable Securities being sold by such Holders; provided, that the provisions
of this sentence may not be amended, qualified, modified, or supplemented except
in accordance with the provisions of the immediately preceding sentence.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing and shall be deemed given (i) when
made, if made by hand delivery, (ii) upon confirmation, if made by telecopier or
(iii) one business day after being deposited with a reputable next-day courier,
postage prepaid, to the parties as follows:
(x) if to a Holder of Registrable Securities, at the most
current address given by such Holder to the Company in accordance with the
provisions of Section 8(e) hereof;
(y) if to the Company, to:
Security Capital U.S. Realty
00, xxxxx x'Xxxx
X-0000 Xxxxxxxxxx
Xxxxxxxxx: Xxxxxxx X. Xxxxx
Telecopy No.: 00-000-000-0000
with a copy to:
Xxxxx, Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx
Telecopy No.: 000-000-0000
and
17
(z) if to the Initial Purchasers to:
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxx
Telecopy No.: 000-000-0000
with a copy to:
Xxxxx & Xxxxxxx L.L.P.
Columbia Square
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: J. Xxxxxx Xxxxxxx, Xx.
Telecopy No.: 000-000-0000
or to such other address as such Person may have furnished to the other Persons
identified in this Section 8(d) in writing in accordance herewith.
(e) Owner of Registrable Securities. The Company will maintain, or
will cause its registrar and transfer agent to maintain, a register with respect
to the Registrable Securities in which all transfers of Registrable Securities
of which the Company has received notice will be recorded. The Company may deem
and treat the Person in whose name Registrable Securities are registered in such
register of the Company as the owner thereof for all purposes, including,
without limitation, the giving of notices under this Agreement.
(f) Approval of Holders. Whenever the consent or approval of Holders
of a specified percentage of Registrable Securities is required hereunder, such
percentage shall be calculated based on the total of (A) the number of Shares
constituting Registrable Securities plus (B) the number of Shares obtainable at
the time in question if all of the Securities constituting Registrable
Securities then outstanding were converted, and Registrable Securities held by
the Company or its affiliates (as such term is defined in Rule 405 under the
Securities Act) (other than the Initial Purchasers or subsequent Holders of
Registrable Securities if such subsequent Holders are deemed to be such
affiliates solely by reason of their holdings of such Registrable Securities)
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.
(g) Successors and Assigns. Any Person who purchases any Registerable
Securities from an Initial Purchaser shall be deemed, for purposes of this
Agreement, to be an assignee of such Initial Purchaser. This Agreement shall
inure to the benefit of and be binding upon the successors and assigns of each
of the parties and shall inure to the benefit of and be binding upon each Holder
of any Registrable Securities, including, without the need for an
18
express assignment or any consent by the Company thereto, subsequent Holders of
Registrable Securities.
(h) 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 original and all of which taken together
shall constitute one and the same agreement.
(i) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK OF THE UNITED STATES OF
AMERICA, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK
WITHOUT REGARD TO ANY PROVISIONS OR PRINCIPLES OF CONFLICT OF LAWS.
(k) Severability. If any term, provision, covenant or restriction of
this Agreement is held to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated thereby, and the parties hereto shall use their best efforts to
find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms, provisions, covenants
and restrictions without including any of such which may be hereafter declared
invalid, illegal, void or unenforceable.
(l) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and the registration rights
granted by the Company with respect to the Securities and Shares of the Company
into which Securities are convertible sold pursuant to the Purchase Agreement.
Except as provided in the Purchase Agreement, there are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein, with respect to the registration rights granted by the Company with
respect to the Shares of the Company into which the Securities are convertible.
This Agreement supersedes all prior agreements and understandings among the
parties with respect to such registration rights.
(m) Inspection. For so long as any Registrable Securities shall
remain outstanding, this Agreement and, for any purpose reasonably related to
this Agreement, a complete list of the names and addresses of all of the Holders
shall be available for inspection and copying on any business day by any Holder
at the offices of the Company at the address thereof set forth in Section 8(d)
hereof.
19
(n) Further Assurances. Each of the parties hereto shall use all
reasonable efforts to take, or cause to be taken, all appropriate action, do or
cause to be done all things reasonably necessary, proper or advisable under
applicable law, and execute and deliver such documents and other papers, as may
be required to carry out the provisions of this Agreement and the other
documents contemplated hereby and consummate and make effective the transactions
contemplated hereby.
(o) Termination. This Agreement and the obligations of the parties
hereunder shall terminate upon the end of the Effectiveness Period, except for
any liabilities or obligations under Sections 4, 5 or 6 hereof, the provisions
of Section 8 and the obligations to make payments of and provide for Liquidated
Damages under Section 2(e) hereof to the extent such damages accrue prior to the
end of the Effectiveness Period, each of which shall remain in effect in
accordance with their terms.
(p) [INTENTIONALLY OMITTED]
(q) Venue. Any legal suit, action or proceeding against the Company
brought by any Holder arising out of or based upon this Agreement may be
instituted in any State or Federal Court located in the Borough of Manhattan,
City of New York. The Company waives, to the fullest extent it may effectively
do so, any objection which it may or hereafter have to the laying of venue of
any such proceeding and the Company submits to the non-exclusive jurisdiction of
such courts in any such suit, action or proceeding. The Company has appointed
CT Corporation System, New York, New York, as its authorized agent (the
"Authorized Agent") upon whom process may be served in any such action arising
out of or based on this Agreement which may be instituted in any State of
Federal Court located in the Borough of Manhattan, City of New York, by any
Holder. The Company expressly consents to the jurisdiction of any such court in
respect of any such action and waives any other requirements of or objections to
personal jurisdiction with respect thereto. The Company represents and warrants
that the Authorized Agent has agreed to act as such agent for service of process
and agrees to take any and all action, including the filing of any and all
documents and instruments, that may be necessary to continue such appointment in
full force and effect as aforesaid. Service of process upon the Authorized
Agent and written notice of such service to the Company shall be deemed, in
every respect, effective service of process upon the Company.
SIGNATURE PAGE FOLLOWS
20
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
SECURITY CAPITAL U.S. REALTY
By: /s/ Xxxxx Xxxx
-------------------------------
Name: Xxxxx Xxxx
Title: Vice President
Accepted as of the date first above written:
XXXXXXX, XXXXX & CO.
By: /s/ Xxxxxxx, Sachs & Co.
-------------------------
On behalf of each of the Initial Purchasers
