EXHIBIT 2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement" ) is made and entered
into as of October 24, 2006 among Home Properties, Inc., a Maryland corporation
(the "Company"), Home Properties, L.P., a New York limited partnership (the
"Operating Partnership"), and XXXXXXX XXXXX & CO., XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED and BEAR, XXXXXXX & CO. INC., as the initial purchasers
(the "Initial Purchasers") named in Schedule A to the Purchase Agreement (as
defined below).
This Agreement is made pursuant to the Purchase Agreement dated October 18,
2006 (the "Purchase Agreement") among the Operating Partnership, the Company and
the Initial Purchasers, which provides for, among other things, the sale of
4.125% Exchangeable Senior Notes Due 2026 (the "Notes") of the Operating
Partnership. The Company has fully and unconditionally guaranteed the payment of
principal and interest on the Notes.
In order to induce the Initial Purchasers to enter into the Purchase
Agreement, the Company has agreed to provide to the Initial Purchasers and their
respective direct and indirect transferees the registration rights set forth in
this Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
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Capitalized terms used herein without definition shall have the respective
meanings ascribed to them in the Purchase Agreement. As used in this Agreement,
the following capitalized defined terms shall have the following meanings:
"Additional Interest" has the meaning set forth in Section 2(e) hereof.
"Advice" has 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.
"Automatic Shelf Registration Statement" means a Registration Statement
filed by a Well-Known Seasoned Issuer, which shall become effective upon filing
thereof pursuant to General Instruction I.D of Form S-3.
"Business Day" means any day other than a Saturday, a Sunday, or a day on
which banking institutions in New York, New York are authorized or required by
law or executive order to remain closed.
"Common Stock" means shares of Common Stock of the Company, par value $0.01
per share, issuable upon exchange of the Notes.
"Company" has the meaning set forth in the preamble to this Agreement and
also includes the Company's successors and permitted assigns.
"Effective Date" means the date the initial Shelf Registration Statement
becomes effective or, in the case of designation of an Automatic Shelf
Registration Statement as the Shelf Registration Statement, the date a
Prospectus is first made available thereunder for use by the Holders.
"Effectiveness Deadline" means (i) for purposes of Section 2(a)(i) hereof,
the 180th day following the Issue Date, (ii) for purposes of the filing of any
post-effective amendment pursuant to Section 2(a)(iii) hereof, the 30th day
after the obligation to make such filing arises, (iii) for purposes of the
filing of any Shelf Registration Statement pursuant to Section 2(a)(iii) hereof,
the 60th day after the obligation to make such filing arises, and (iv) for
purposes of any filing made pursuant to Section 2(a)(iv) hereof, the tenth
Business Day after the obligation to make such filing arises.
"Effectiveness Period" has the meaning set forth in Section 2(a)(iv)
hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time.
"Filing Deadline" means (i) for purposes of Section 2(a)(i) hereof, the
210th day following the Issue Date, (ii) for purposes of Section 2(a)(iii)
hereof, the tenth Business Day after the date of receipt by the Company of the
information specified therein (or, if a Suspension Period is then in effect or
initiated within five Business Days following the date of receipt of such
information, the tenth Business Day following the end of such Suspension
Period), and (iii) for purposes of Section 2(a)(iv) hereof, the tenth Business
Day after the cessation of effectiveness of any Shelf Registration Statement
(or, if a Suspension Period is then in effect or initiated within five Business
Days following the date of receipt of such information, the tenth Business Day
following the end of such Suspension Period).
"Guarantee" has the meaning set forth in the preamble to this Agreement.
"Holder" means each Initial Purchaser, for so long as such Initial
Purchaser owns any Registrable Securities, and each of such Initial Purchaser's
respective successors, assigns and direct and indirect transferees who become
registered owners of Registrable Securities.
"Indenture" means the Indenture dated as of October 24, 2006, by and among
the Operating Partnership, the Company and the Trustee, pursuant to which the
Notes are being issued, and in accordance with which shares of Common Stock may
be issued, as the same may be amended, supplemented, waived or otherwise
modified from time to time in accordance with the terms thereof.
"Initial Purchasers" has the meaning set forth in the preamble to this
Agreement.
"Inspectors" has the meaning set forth in Section 3(l) hereof.
"Issue Date" means October 24, 2006, being the date of original issuance of
the Notes.
"Majority Holders" means the Holders collectively holding a majority of the
number of outstanding shares Registrable Securities.
"Notes" has the meaning set forth in the preamble to this Agreement.
"Person" means an individual, partnership, corporation, trust or
unincorporated organization, limited liability corporation, or a government or
agency or political subdivision thereof.
"Prospectus" means the prospectus included in a Shelf Registration
Statement, including any preliminary prospectus, any issuer "free writing
prospectus," as such term is defined in Rule 433 under the 1933 Act, 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 to a prospectus,
including post-effective amendments, and, in each case, including all documents
incorporated by reference therein.
"Purchase Agreement" has the meaning set forth in the preamble to this
Agreement.
"Questionnaire" has the meaning set forth in Section 2(a)(ii) hereof.
"Records" has the meaning set forth in Section 3(l) hereof.
"Registrable Securities" means any shares of Common Stock issued as "net
shares" upon exchange of any Notes pursuant to the Indenture; provided, however,
that the shares of Common Stock shall cease to be Registrable Securities upon
the earlier of (1) a Shelf Registration Statement with respect to such shares of
Common Stock for the resale thereof having been declared or become effective
under the Securities Act and such shares of Common Stock having been disposed of
pursuant to such Shelf Registration Statement, (2) such shares of Common Stock
having become eligible to be sold without restriction as contemplated by Rule
144(k) under the Securities Act by a Person who is not an Affiliate of the
Company, or (3) such shares of Common Stock having ceased to be outstanding.
"Registration Expenses" means any and all expenses incident to performance
of or compliance by the Company and the Operating Partnership 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 of any Persons in preparing or assisting in 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, printing and distributing any underwriting agreements,
securities sales agreements and other documents relating to the performance of
and compliance with this Agreement, (iv) the fees and disbursements of counsel
for the Company, the Operating Partnership and of the independent certified
public accountants of the Company, including the expenses of any "comfort
letters" required by or incident to the performance of and compliance with this
Agreement, and (v) the reasonable fees and expenses of any special experts
retained by the Company or the Operating Partnership in connection with the
Shelf Registration Statement.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
"Shelf Registration" means a registration effected pursuant to Section 2(a)
hereof.
"Shelf Registration Statement" means a "shelf" registration statement of
the Company pursuant to the provisions of Section 2(a) hereof which covers all
of the Registrable Securities on Form S-3 or, if not then available to the
Company, on another 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.
"Suspension Period" has the meaning set forth in Section 2(a)(iv).
"Trustee" means the trustee with respect to the Notes under the Indenture.
"Well-Known Seasoned Issuer" has the meaning set forth in Rule 405 under
the Securities Act.
2. Registration Under the Securities Act.
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(a) Shelf Registration.
(i) The Company shall file or cause to be filed (or otherwise
designate an existing Automatic Shelf Registration Statement previously
filed with the SEC as) a Shelf Registration Statement providing for the
sale by the Holders of all of the Registrable Securities, as promptly as
practicable but in any event on or prior to the Filing Deadline. If the
Shelf Registration Statement is not an Automatic Shelf Registration
Statement, the Company shall use its reasonable commercial efforts to have
such Shelf Registration Statement declared effective by the SEC as promptly
as practicable after filing thereof, but in any event on or prior to the
Effectiveness Deadline. If the Shelf Registration Statement is an Automatic
Shelf Registration Statement, the Company shall use its reasonable
commercial efforts to prepare and file a supplement to the Prospectus to
cover resales of the Registrable Securities by the Holders as promptly as
practicable after filing thereof, but in any event on or prior to the
Effectiveness Deadline.
(ii) Notwithstanding any other provision hereof, no Holder of
Registrable Securities shall be entitled to include any of its Registrable
Securities in any Shelf Registration Statement 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 the Holder
furnishes to the Company a fully completed notice and questionnaire in the
form attached as Appendix A to the Offering Memorandum (the
"Questionnaire") and such other information in writing as the Company may
reasonably request in writing for use in connection with the Shelf
Registration Statement or Prospectus included therein and in any
application to be filed with or under state securities laws. The Company
shall issue a press release through a reputable national newswire service
of their filing (or intention to designate an Automatic Shelf Registration
Statement as) the Shelf Registration Statement and of the anticipated
Effective Date thereof. In order to be named as a selling securityholder in
the Prospectus at the time it is first made available for use, each Holder
must furnish the completed Questionnaire and such other information that
the Company may reasonably request in writing, if any, to the Company in
writing no later than the tenth Business Day prior to the anticipated
Effective Date as announced in the press release. Each Holder as to which
any Shelf Registration is being effected agrees to furnish to the Company
all information with respect to such Holder necessary to make the
information previously furnished to the Company by such Holder not
materially misleading.
(iii) From and after the Effective Date, upon receipt of a completed
Questionnaire and such other information that the Company may reasonably
request in writing, if any, the Company will use its reasonable commercial
efforts to file as promptly as reasonably practicable but in any event on
or prior to the Filing Deadline either (i) if then permitted by the
Securities Act or the rules and regulations thereunder (or then-current SEC
interpretations thereof), a supplement to the Prospectus naming such Holder
as a selling securityholder and containing such other information as
necessary to permit such Holder to deliver the Prospectus to purchasers of
the Holder's shares of Common Stock, (ii) if it is not then permitted under
the Securities Act or the rules and regulations thereunder (or then-current
SEC interpretations thereof) to name such Holder as a selling
securityholder in a supplement to the Prospectus, a post-effective
amendment to the Shelf Registration Statement or an additional Shelf
Registration Statement as necessary for such Holder to be named as a
selling securityholder in the Prospectus contained therein to permit such
Holder to deliver the Prospectus to purchasers of the Holder's shares of
Common Stock or (iii) if then permitted, a Form 8-K naming such Holder as a
selling securityholder therein with such additional information as is
necessary to permit such Holder to deliver the Prospectus to purchasers of
its shares of common stock (subject, in the case of either clause (i), (ii)
or (iii), to the Company's right to suspend use of the Shelf Registration
Statement as described in Section 2(a)(iv) hereof). If a post-effective
amendment or additional Shelf Registration Statement is required to be
filed, the Company shall use its reasonable commercial efforts to have such
post-effective amendment or additional Shelf Registration Statement
declared effective by the SEC as promptly as practicable after filing
thereof, but in any event on or prior to the Effectiveness Deadline. The
Company shall not be required to file more than three supplements to the
Prospectus, post-effective amendments or additional Shelf Registration
Statements in any fiscal quarter for all such Holders.
(iv) The Company agrees to use its reasonable commercial efforts to
keep the Shelf Registration Statement continuously effective and the
Prospectus usable for resales until there are no Registrable Securities
outstanding (the "Effectiveness Period"); provided, however, that for 30
days or fewer (whether or not consecutive) in any three-month period, and
for 90 days or fewer in any 12-month period, the Company shall be
permitted, by giving written notice to the Holders of Registrable
Securities, to suspend sales thereof if the Shelf Registration Statement is
no longer effective or usable for resales due to circumstances relating to
pending developments, public filings with the SEC and similar events, or
because the Prospectus contains an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary
in order to make statements therein not misleading (any period of
suspension hereunder, a "Suspension Period"). If any Shelf Registration
Statement ceases to be effective or usable for resales by Holders for any
reason (other than by reason of any such Holder's failure to provide a
Questionnaire, in which case the provisions of Section 2(a)(ii) or
2(a)(iii) hereof shall apply) at any time during the Effectiveness Period,
the Company shall, subject to the proviso contained in the immediately
preceding sentence, use its reasonable commercial efforts to promptly cause
such Shelf Registration Statement to become effective under the Securities
Act, and in any event shall, within ten Business Days of such cessation of
effectiveness or usability: (i) file with the SEC one or more supplements
to the Prospectus, post-effective amendments or reports under the Exchange
Act in a manner reasonably expected to obtain the withdrawal of any order
suspending the effectiveness of such Shelf Registration Statement, or (ii)
file with the SEC an additional Shelf Registration Statement. If a
post-effective amendment or an additional Shelf Registration Statement is
filed, the Company shall use its reasonable commercial efforts to (A) cause
such post-effective amendment or Shelf Registration Statement to become
effective under the Securities Act as promptly as practicable after such
filing, but in no event later than the applicable Effectiveness Deadline,
and (B) keep such post-effective amendment or Shelf Registration Statement
continuously effective until the end of the Effectiveness Period.
(v) If the Shelf Registration Statement is not an Automatic Shelf
Registration Statement, the Company shall not permit any securities other
than (i) the Company's 's issued and outstanding securities currently
possessing incidental or so-called "piggy-back" registration rights and
(ii) the Registrable Securities to be included in the Shelf Registration.
The Company will provide to each Holder named therein a reasonable number
of copies of the Prospectus which is a part of the Shelf Registration
Statement, notify each such Holder of the Effective Date and take such
other actions as are required to permit unrestricted resales of the
Registrable Securities by such Holder. The Company further agrees to
supplement or amend the Shelf Registration Statement or supplement the
Prospectus if and as required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf
Registration Statement or by the Securities Act or by any other rules and
regulations thereunder for shelf registrations, and the Company 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) Listing. The Company shall use its reasonable commercial efforts
to cause any Registrable Securities issued to be approved for listing on
the New York Stock Exchange upon notice of issuance.
(c) Expenses. The Company shall pay all Registration Expenses in
connection with any Shelf Registration Statement filed pursuant to Section
2(a) hereof (including the reasonable fees and disbursements of one counsel
for the Holders of the Registrable Securities in connection with the review
of any Shelf Registration Statement, Prospectus or amendment or supplement
thereto in accordance with the provisions of Section 3(a) hereof, which
counsel shall be reasonably satisfactory to the Company). Except as
provided herein, 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.
(d) Effective Shelf Registration Statement. If, after the Effective
Date the offering of Registrable Securities pursuant to a Shelf
Registration Statement is interfered with by any stop order, injunction or
other order or requirement of the SEC or any other governmental agency or
court, such Shelf Registration Statement will be deemed not to have been
effective during the period of such interference, until the offering of
Registrable Securities pursuant to such Shelf Registration Statement may
legally resume. The Company will be deemed not to have used its reasonable
commercial efforts to cause a Shelf Registration Statement to become, or to
remain, effective during the requisite period if it voluntarily takes any
action that knowingly would result in any such Shelf Registration Statement
not being declared effective or that knowingly would result in the Holders
of Registrable Securities covered thereby not being able to offer and sell
such Registrable Securities during that period, unless (i) such action is
required by applicable law or (ii) constitutes the imposition of a
Suspension Period in accordance with the provisions of Section 2(a)(iv)
hereof.
(e) Additional Interest. In the event that:
(i) a Shelf Registration Statement is not filed with the SEC or
designated as such by the Company on or prior to the Filing Deadline
pursuant to Section 2(a)(i), then additional interest ("Additional
Interest") shall accrue on the principal amount of the Notes at a rate
equal to 0.25% per year for the first 90-day period from the day following
such Filing Deadline, and thereafter at a rate per year of 0.50% of the
principal amount of the Notes;
(ii) (x) a Shelf Registration Statement is not declared effective by
the SEC, or (y) if the Company shall have designated a previously filed and
effective Automatic Shelf Registration Statement as the Shelf Registration
Statement for purposes of this Agreement, the Company shall not have filed
a supplement to the Prospectus to cover resales of the Registrable
Securities by the Holders, in the case of either (x) or (y), on or prior to
the Effectiveness Deadline pursuant to Section 2(a)(i), then Additional
Interest shall accrue on the principal amount of the Notes at a rate equal
to 0.25% per year for the first 90-day period from the day following such
Effectiveness Deadline, and thereafter at a rate per year of 0.50% of the
principal amount of the Notes;
(iii) following the Effective Date, (A) the Company fails to make any
filing required pursuant to Section 2(a)(iii) hereof prior to the Filing
Deadline applicable thereto, or (B) in the event such filing is a
post-effective amendment or additional Shelf Registration Statement, such
post-effective amendment or Shelf Registration Statement fails to become
effective on or prior to the Effectiveness Deadline applicable thereto,
then Additional Interest shall accrue on the principal amount of the Notes
at a rate equal to 0.25% per year for the first 90-day period from the day
following such Filing Deadline or Effectiveness Deadline, as applicable,
and thereafter at a rate per year of 0.50% of the principal amount of the
Notes;
(iv) following the Effective Date, a Shelf Registration Statement
ceases to be effective (without being succeeded immediately by an
additional Shelf Registration Statement that is filed and immediately
becomes effective) or usable for the offer and sale of the Registrable
Securities, other than in connection with (A) a Suspension Period or (B) as
a result of a requirement to file a post-effective amendment or supplement
to the Prospectus to make changes to the information regarding selling
securityholders or the plan of distribution provided for therein, and the
Company does not cure the lapse of effectiveness or usability within ten
Business Days (or, if a Suspension Period is then in effect, within ten
Business Days following the expiration of such Suspension Period), then
Additional Interest shall accrue on the principal amount of the Notes at a
rate equal to 0.25% per year for the first 90-day period from the day
following such tenth Business Day, and thereafter at a rate per year of
0.50% of the principal amount of the Notes;
(v) any Suspension Period or Periods exceed 30 days in any three-month
period or 90 days in any 12-month period, then, commencing with the 31st
day in such three-month period or the 91st day in such 12-month period, as
the case may be, then Additional Interest shall accrue on the principal
amount of the Notes at a rate equal to 0.25% per year for the first 90-day
period from the day following the 31st or 91st day, as the case may be, and
thereafter at a rate per year of 0.50% of the principal amount of the
Notes; or
(vi) if the Company fails to name as a selling securityholder any
Holder that had complied timely with its obligations hereunder in a manner
to entitle such Holder to be so named in (A) any Shelf Registration
Statement at the time it first becomes effective or (B) any Prospectus at
the later of time of filing thereof or the time the Shelf Registration
Statement of which the Prospectus forms a part becomes effective, then
Additional Interest will accrue on the principal amount of Notes held by
such Holder at a rate equal to 0.25% per year for the first 90-day period
from the day following the effective date of such Shelf Registration
Statement or the time of filing of such Prospectus, as the case may be, and
thereafter at a rate per year of 0.50% of the principal amount of the Notes
held by such Holder;
provided, however, that in no event shall Additional Interest accrue
at a rate per year exceeding 0.50% of the principal amount of the Notes;
and provided, further, that Additional Interest on the principal amount of
the Notes as a result thereof shall cease to accrue:
(1) upon the filing or designation of a Shelf Registration
Statement (in the case of clause (i) above);
(2) upon the Effective Date (in the case of clause (ii) above);
(3) upon the filing of a supplement to the Prospectus (in the
case of clause (iii)(A) above) or upon the Effective Date (in the case
of clause (iii)(B) above);
(4) upon such time as the Shelf Registration Statement which had
ceased to remain effective or usable for resales again becomes
effective and usable for resales (in the case of clause (iv) above);
(5) upon such time as the Shelf Registration Statement which had
ceased to remain effective or usable for resales again becomes
effective and usable for resales (in the case of clause (v) above); or
(6) upon the time such Holder is permitted to sell its
Registrable Securities pursuant to any Shelf Registration Statement
and Prospectus in accordance with applicable law (in the case of
clause (vi) above).
Any amounts of Additional Interest due pursuant to Section 2(e) will
be payable semi-annually in arrears in cash on the next succeeding interest
payment date to Holders entitled to receive such Additional Interest on the
relevant record dates for the payment of interest.
Notwithstanding any provision in this Agreement, in no event shall
Additional Interest accrue to holders of any shares of Common Stock issued
upon exchange of Notes. If any Note ceases to be outstanding during any
period for which Additional Interest are accruing, the Company will prorate
the Additional Interest payable with respect to such Note. Additional
Interest shall represent the sole entitlement of the Holders to money
damages relating to the failure of the Company to file or otherwise
designate a Shelf Registration Statement with the SEC on or prior to the
Filing Deadline.
(f) Specific Enforcement. Without limiting the remedies available to the
Holders, each of the Company and the Operating Partnership 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 Company's
and the Operating Partnership's obligations under Section 2(a) hereof.
3. Registration Procedures.
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In connection with the obligations of the Company with respect to the Shelf
Registration Statement pursuant to Section 2(a) hereof, the Company shall use
its reasonable commercial efforts to:
(a) prepare and file with the SEC or designate a Shelf Registration
Statement as prescribed by Section 2(a)(i) hereof within the relevant time
period specified in Section 2(a)(i) hereof on the appropriate form under the
Securities Act, which form shall (i) be selected by the Company, (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; the Company shall use its reasonable
commercial efforts to 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 Prospectus or any amendments or supplements
thereto, the Company shall furnish to and afford the Holders of the Registrable
Securities covered by such Shelf Registration Statement, their one designated
counsel and the managing underwriters, if any, a reasonable opportunity to
review copies of all such documents (including copies of any documents to be
incorporated by reference therein and all exhibits thereto) proposed to be
filed; and the Company shall not file any Shelf Registration Statement or
Prospectus or any amendments or supplements thereto in respect of which the
Holders must be afforded an opportunity to review prior to the filing of such
document if the Majority Holders, their counsel or the managing underwriters, if
any, shall reasonably object in a timely manner;
(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 to be supplemented, if so determined by the Company or requested
by the SEC, 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, 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) (i) furnish to each Holder of Registrable Securities included in 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 (ii) 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
applicable Shelf Registration Statement has become effective under the
Securities Act as any Holder of Registrable Securities covered by a Shelf
Registration Statement and each underwriter of an underwritten offering of
Registrable Securities 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 or such underwriter to
consummate the disposition in each such jurisdiction of such Registrable
Securities owned by such Holder; provided, however, that the Company shall not
be required to (i) qualify as a foreign entity 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
or (iii) subject itself to taxation in any such jurisdiction if it is not then
so subject;
(e) promptly notify each Holder of Registrable Securities, their counsel,
and the managing underwriters, if any, 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 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 and the closing of any sale of Registrable Securities covered
thereby, any of the representations and warranties of the Company 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, (x) which makes any statement made in a Shelf
Registration Statement untrue in any material respect or which causes such Shelf
Registration Statement to omit to state a material fact which is required to be
stated therein or which is necessary in order to make the statements therein not
misleading, or (y) which makes any statement made in a related Prospectus untrue
in any material respect or which causes such Prospectus to omit to state a
material fact which is required to be stated therein or which is 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 Company 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 included within the
coverage of a 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) (subject to the respective grace periods set forth
in Section 2(a)(iv)) or 3(e)(vi) hereof, prepare a supplement or post-effective
amendment to the Shelf Registration Statement or the related Prospectus or any
document incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of the Registrable
Securities, 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 the Company 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 Company has amended or
supplemented the Prospectus to correct such misstatement or omission;
(j) subject to Section 5 hereof, enter into such agreements (including
underwriting agreements) as are customary in underwritten offerings and take all
such other appropriate actions in connection therewith as are reasonably
requested by the Holders collectively holding at least the greater of (x) 25% of
the outstanding Registrable Securities and (y) 500,000 Registrable Securities.
in order to expedite or facilitate the registration or the disposition of the
Registrable Securities;
(k) whether or not an underwriting agreement is entered into and whether or
not the registration is an underwritten registration, if requested by (x) any
Initial Purchaser, in the case where such Initial Purchaser holds Securities
acquired by it as part of its initial placement and (y) Holders collectively
holding the greater of (x) 25% of the outstanding Registrable Securities and (y)
500,000 Registrable Securities: (i) make such representations and warranties to
Holders of such Registrable Securities and the underwriters, if any, with
respect to the business of the Company, 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) obtain opinions of
counsel to the Company and updates thereof (which may be in the form of a
reliance letter) in form and substance reasonably satisfactory to the managing
underwriters (if any) and the Holders collectively holding a majority in
aggregate principal amount or number, as the context requires, of the
Registrable Securities being sold, addressed to each selling Holder and the
underwriters (if any) covering the matters customarily covered in opinions
requested in underwritten offerings and such other matters as may be reasonably
requested by such underwriters (it being agreed that the matters to be covered
by such opinion may be subject to customary qualifications and exceptions);
(iii) obtain "comfort letters" and updates thereof in form and substance
reasonably satisfactory to the managing underwriters from the independent
certified public accountants of the Company (and, if necessary, any other
independent certified public accountants of any business acquired by the Company
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 "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; and (iv) if an
underwriting agreement is entered into, the same shall contain indemnification
provisions and procedures no less favorable than those set forth in Section 4
hereof (or such other provisions and procedures acceptable to Holders
collectively holding a majority in aggregate principal amount or number, as the
context requires, of Registrable Securities covered by such Shelf Registration
Statement 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 Company 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, 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 Company's normal business hours, all financial and other
records, pertinent organizational and operational documents and properties of
the Company 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 and employees of the Company
and its subsidiaries to supply all relevant information in each case reasonably
requested by any such Inspector in connection with such Shelf Registration
Statement; provided that (x) Records and information which the Company, in good
faith, determine to be confidential and any Records and information which the
Company 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 such 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 have been made generally
available to the public; (y) each selling Holder of such Registrable Securities
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
Company unless and until such Records or information are made generally
available to the public through no fault of an Inspector or a selling Holder;
and (z) each selling Holder of such Registrable Securities 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 extent
permitted by applicable law, to the Company and allow the Company 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) (i) commencing at the end of any fiscal quarter in
which Registrable Securities are sold to underwriters in a firm commitment or
best efforts underwritten offering and (ii) if not sold to underwriters in such
an offering, commencing on the first day of the first fiscal quarter of the
Company after the Effective Date, 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 Registrable Securities covered by a Shelf
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Securities and their counsel in connection with
any filings required to be made with the NASD;
(o) take all other steps necessary to effect the registration of the
Registrable Securities covered by a Shelf Registration Statement contemplated
hereby; and
(p) the Company 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 a Shelf Registration Statement; the Company 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 Company shall have no obligation to register under the Securities Act
the Registrable Securities of a seller who so fails to furnish such information.
Each Holder agrees that, upon receipt of any notice from the Company 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 a 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 Company that the use of the applicable Prospectus may be
resumed, and, if so directed by the Company, such Holder will deliver to the
Company (at its expense) all copies in such Holder's possession, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities current at the time of receipt of such
notice. If the Company shall give any such notice to suspend the disposition of
Registrable Securities pursuant to a Shelf Registration Statement, the Company
shall use its reasonable commercial 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
related Prospectus.
4. Indemnification and Contribution.
--------------------------------------
(a) The Company and the Operating Partnership hereby agree, jointly and
severally, 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 (x) any untrue statement or alleged
untrue statement of a material fact contained in a Shelf Registration
Statement (or any amendment thereto) or the omission or alleged omission
from the Shelf Registration Statement (or any amendment thereto) of a
material fact which is required to be stated therein or which is necessary
in order to make the statements therein not misleading, or (y) any untrue
statement or alleged untrue statement of a material fact contained in the
Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission from the Prospectus (or any amendment or supplement
thereto) of a material fact which is required to be stated therein or which
is necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, provided that (subject to Section
4(d) hereof) such settlement is effected with the prior written consent of
the Company and the Operating Partnership; and
(iii) against any and all expenses whatsoever, as incurred (including
the reasonable fees and disbursements of counsel chosen by the Initial
Purchasers or 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, 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 Company
or the Operating Partnership by any Initial Purchaser through the
Representative or 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 and each underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its trustees and officers (including
each officer of the Company who signed the Shelf Registration Statement), the
Operating Partnership and its partners, the Initial Purchasers, and each Person,
if any, who controls the Company or the Operating Partnership or any Initial
Purchaser within the meaning of Section 15 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
Company or the Operating Partnership 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 Registrable Securities.
(c) If any action, suit or proceeding (each, a "Proceeding") is brought
against a person (an "indemnified party") in respect of which indemnity may be
sought against the Company and the Operating Partnership or the Initial
Purchasers (as applicable, the "indemnifying party") pursuant to subsection (a)
or (b) of this Section 4, such indemnified party shall promptly notify such
indemnifying party in writing of the institution of such Proceeding and such
indemnifying party shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses; provided, however, that the omission to so
notify such indemnifying party shall not relieve such indemnifying party from
any liability which such indemnifying party may have to any indemnified party or
otherwise, except to the extent that such indemnifying party is actually
materially prejudiced thereby. The indemnified party or parties shall have the
right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such indemnified party or
parties unless the employment of such counsel shall have been authorized in
writing by the indemnifying party in connection with the defense of such
Proceeding or the indemnifying party shall not have, within a reasonable period
of time in light of the circumstances, employed counsel to defend such
Proceeding or such indemnified party or parties shall have reasonably concluded
that there may be defenses available to it or them which are different from,
additional to or in conflict with those available to such indemnifying party (in
which case such indemnifying party shall not have the right to direct the
defense of such Proceeding on behalf of the indemnified party or parties), in
any of which events such fees and expenses shall be borne by such indemnifying
party and paid as incurred (it being understood, however, that such indemnifying
party shall not be liable for the expenses of more than one separate counsel (in
addition to any local counsel) in any one Proceeding or series of related
Proceedings in the same jurisdiction representing the indemnified parties who
are parties to such Proceeding).
(d) The indemnifying party shall not be liable for any settlement of any
Proceeding for which the indemnified party is entitled to indemnification under
subsection (a) or (b) of this Section 4 effected without its written consent
but, if settled with its written consent, such indemnifying party agrees to
indemnify and hold harmless the indemnified party or parties from and against
any loss or liability by reason of such settlement. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel when such payment would be required by the second sentence of this
Section 4(d), then the indemnifying party agrees that it shall be liable for any
settlement of any Proceeding for which the indemnified party is entitled to
indemnification under subsection (a) or (b) of this Section 4, as applicable,
effected without its written consent if:
(i) such settlement is entered into more than 45 business days after
receipt by such indemnifying party of the written request for reimbursement
("Reimbursement Request"), together with reasonable supporting
documentation for the expenses claimed in the request for reimbursement,
(ii) such indemnified party shall have given the indemnifying party at
least 30 days' prior notice of its intention to settle, and
(iii) such indemnifying party shall have defaulted under this Section
4(d) in reimbursing the indemnified party in accordance with such request
prior to the date of the settlement.
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 and does
not include an admission of fault or culpability or a failure to act by or on
behalf of such indemnified party.
(e) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement set forth in this Section 4 is
for any reason held to be unenforceable by an indemnified party although
applicable in accordance with its terms, the Company and the Operating
Partnership, 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 Company, the
Operating Partnership 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 Company and
the Operating Partnership, 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
Company and the Operating Partnership, 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
Company and the Operating Partnership, 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
Company or the Operating Partnership, 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 Company, the Operating Partnership 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 Company, each partner of the Operating Partnership and each
Person, if any, who controls the Company or the Operating Partnership 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 and the Operating
Partnership.
5. Underwritten Registration; Participation Therein.
------------------------------------------------------
Notwithstanding any provision of this Agreement to the contrary, in no
event will the method of distribution of the Registrable Securities take the
form of an underwritten offering without the prior written consent of the
Company. 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.
6. Selection of Underwriters.
-------------------------------
The Holders of Registrable Securities covered by the Shelf Registration
Statement who desire to do so may sell their Registrable Securities covered by
such Shelf Registration in an underwritten offering, subject to the provisions
of Sections 3(l) and 5 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 aggregate principal
amount or number, as the context requires, of the Registrable Securities
included in such offering; provided, however, that such underwriters and
managers must be reasonably satisfactory to the Company.
7. Miscellaneous.
-----------------------
(a) Rule 144 and Rule 144A. For so long as it is subject to the reporting
requirements of Section 13 or 15 of the Exchange Act and any Registrable
Securities remain outstanding, the Company 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 Company ceases to be so required to file such reports, it
will, upon the request of any Holder of Registrable Securities (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 to enable such Holder to sell its Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (i) Rule 144 under the Securities Act, as such rule may be amended
from time to time, (ii) Rule 144A under the Securities Act, as such rule may be
amended from time to time, or (iii) any similar rules or regulations hereafter
adopted by the SEC. Upon the request of any Holder of Registrable Securities,
the Company will deliver to such Holder a written statement as to whether it has
complied with such requirements.
(b) No Inconsistent Agreements. Neither the Company nor the Operating
Partnership have 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 Company's or the
Operating Partnership'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 Company and the Operating Partnership have obtained the written
consent of Holders of a majority in aggregate principal amount or number, as the
context requires, 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 Company, the Operating
Partnership 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 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 Company
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,
the Company and the Operating Partnership.
(d) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, registered first-class
mail, telecopier, or any courier guaranteeing overnight delivery (i) if to a
Holder, at the most current address given by such Holder to the Company or the
Operating Partnership 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 respective addresses set forth in the Purchase
Agreement; and (ii) if to the Company and the Operating Partnership, initially
at the Company'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 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; provided, however, that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Purchase Agreement or the Indenture
relating to the Notes or declaration of trust of the Company . 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) Mergers and other Change of Control Transactions. Nothing in this
Agreement shall restrict the ability of the Company or the Operating Partnership
to consummate a merger, reorganization or any transaction that is covered in the
definition of the term "Change in Control" (as defined in the Indenture), and
upon a Change in Control, all obligations of the Company and the Operating
Partnership in this Agreement shall terminate except that the Company and the
Operating Partnership and the successor, if any, shall remain obligated on those
agreements of the Company and Operating Partnership in Section 4 hereof.
(g) Third Party Beneficiaries. Each Holder shall be a third party
beneficiary of the agreements made hereunder among the Company, the Operating
Partnership and the Initial Purchaser, and the Initial Purchasers shall have the
right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
(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 an 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. EACH OF THE PARTIES HERETO
AGREES TO SUBMIT TO THE JURISDICTION OF THE STATE COURTS OF THE STATE OF NEW
YORK OR THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA, IN EACH CASE SITTING
IN THE CITY OF NEW YORK, IN ANY SUIT, 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.
(k) 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.
(l) Registrable Securities Held by the Company 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 Company or
any Affiliates shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
HOME PROPERTIES, INC.
By: /s/Xxxxxx X. Xxxxxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: President and Chief Executive Officer
HOME PROPERTIES, L.P.
By: Home Properties, Inc.
its general partner
By: /s/Xxxxxx X. Xxxxxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: President and Chief Executive Officer
CONFIRMED AND ACCEPTED, as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/Xxxxxxx Xxxxxx
----------------------------------------
Xxxxxxx Xxxxxx, Managing Director
BEAR, XXXXXXX & CO. INC.
By: /s/Xxxx X. Xxxxxx
----------------------------------------
Xxxx X. Xxxxxx, Senior Managing Director
Authorized Signatory
