REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made and entered into as of November
7, 2005, (this "Agreement") between Xxxxxxx Realty Trust, Inc., a Maryland
corporation (the "Company"), and First Union Real Estate Equity and Mortgage
Investments, an unincorporated association in the form of a business trust
organized in Ohio (together with its successors and permitted assigns, the
"Shareholder").
WHEREAS, the Company has filed a registration statement on Form S-11 (as the
same may be amended from time to time, the "Form S-11") with the Securities and
Exchange Commission (the "Commission") pursuant to which the Company is making
an initial public offering on its common stock, par value $0.01 per share (the
"Common Stock");
WHEREAS, pursuant to the Securities Purchase Agreement by and between the
Shareholder and the Company dated of even date herewith (the "Securities
Purchase Agreement"), Shareholder is the purchaser of an amount of the Company's
Common Stock having a value of $50,000,000, based on the purchase price per
share equal to the initial public offering price of the Common Stock sold to the
public pursuant to the Registration Statement (such shares of Common Stock, the
"SPA Shares"), upon the terms and conditions of the Securities Purchase
Agreement; and
WHEREAS, in consideration for the partial assignment of Shareholder's right,
title and interest under the Exclusivity Agreement pursuant to Section 2.01 of
the Acquisition Agreement by and between Shareholder and the Company dated of
even date herewith (the "Acquisition Agreement"), the Company has issued shares
of Common Stock, subject to certain restrictions on resale, forfeiture and
vesting, as set forth in the Acquisition Agreement, having the value of
$20,000,000 based on the purchase price per share equal to the initial public
offering price of the Common Stock sold to the public pursuant to the
Registration Statement (such number of shares of Common Stock, the "Acquisition
Shares"); and
WHEREAS, the SPA Shares and the Acquisition Shares shall be herein collectively
referred to as the "Shares"; and
WHEREAS, the Company wishes to facilitate the disposition, and the Shareholder
wishes to have the ability to dispose, of such Shares.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained and other good and valid consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties to this Agreement hereby agree as
follows:
1. CERTAIN DEFINITIONS.
(a) Definitions. Capitalized terms not otherwise defined in this Agreement
shall have the meaning set forth in the Securities Purchase Agreement and the
Acquisition Agreement. As used in this Agreement, the following terms have the
meaning indicated below or in the referenced sections of this Agreement:
"Advisor" means NKT Advisors LLC, a Delaware limited liability company.
"Advisory Agreement" shall mean that certain Advisory Agreement dated
November 7, 2005 between the Company, the Operating Partnership and the Advisor.
"Affiliate" of any Person means any other Person that directly, or
indirectly through one or more intermediaries, controls, or is controlled by, or
is under common control with, such Person. The term "control" (including the
terms "controlled by" and "under common control with") as used with respect to
any Person means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of such Person, whether
through the ownership of voting securities, by contract or otherwise.
"Agreement" means this Registration Rights Agreement, including all
amendments, modifications and supplements and any exhibits or schedules to any
of the foregoing, and shall refer to this Registration Rights Agreement as the
same may be in effect at the time such reference becomes operative.
"Business Day" means any day on which commercial banks are open for
business in New York, New York and on which the New York Stock Exchange or such
other exchange as the Common Stock is listed is open for trading.
"Common Stock" means common stock, par value $0.01 per share, of the
Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exclusivity Agreement" means that certain Exclusivity Agreement dated as
of December 31, 2003 between First Union Real Estate Equity and Mortgage
Investments and Xxxxxxx X. Xxxxxx.
"Forfeiture Event" shall mean (i) the termination of the Advisory
Agreement by the Company for Cause (as defined in the Advisory Agreement), (ii)
Xxxxxxx X. Xxxxxx'x resignation as the Chief Executive Officer and director of
the Company and the Advisor, or (iii) the death or disability of Xxxxxxx X.
Xxxxxx unless the other members of the Advisor's senior management at such time
remain in such positions.
"Form S-11" means the initial public offering of the Company's shares of
Common Stock filed with the Commission on Form S-11.
2
"Holder" means any shareholder holding securities entitled to registration
by the Company hereunder or under one or more Other Registration Rights
Agreements, and shall include, where the context requires, the Shareholder.
"Lock-Up Agreement" means that certain Lock-Up Agreement between the
Company and the Shareholder dated of even date herewith expiring or terminating
on the earlier to occur of (i) three years from the date thereof, or (ii) the
occurrence of a Vesting Event; provided however, in no event shall such
expiration or termination occur less than one (1) year from the Closing Date.
"Operating Partnership" means The Xxxxxxx Master Limited Partnership, a
Delaware limited partnership, and any successor thereto.
"Other Registration Rights Agreements" means that certain Registration
Rights Agreement, of even date herewith, by and between the Company and Apollo
Real Estate Investment Fund III, L.P. ("Apollo") and that certain Registration
Rights Agreement, of even date herewith, and by and between the Company and
Vornado Realty L.P.
"Partnership Units" means the partnership units of the Operating
Partnership.
"Person" means any individual, sole proprietorship, partnership, limited
liability company, joint venture, trust, incorporated organization, association,
corporation, institution, public benefit corporation, government (whether
federal, state, county, city, municipal or otherwise, including, without
limitation, any instrumentality, division, agency, body or department thereof)
or any other entity.
"Prospectus" means the prospectus or prospectuses included in any
Registration Statement, as amended or supplemented by any prospectus supplement
with respect to the terms of the offering of any portion of the Registerable
Common Stock covered by such Registration Statement and by all other amendments
and supplements to the prospectus, including any preliminary prospectus or
supplement, post-effective amendments and all material incorporated by reference
in such prospectus or prospectuses.
"Registerable Common Stock" means the SPA Shares and those Acquisition
Shares deemed to have vested under the Acquisition Agreement and described
herein in Section 2(i) and not otherwise forfeited as described in Section 2(j),
including any securities issued in respect of such securities by reason of or in
connection with any conversion of Partnership Units or the exchange for or
replacement of such securities or any stock dividend, stock distribution, stock
split, purchase in any rights offering or in connection with any combination of
shares, recapitalization, merger or consolidation, or any other equity
securities issued pursuant to any other pro rata distribution with respect to
the Shares.
3
"Registration Statement" means any registration statement of the Company,
other than the Form S-11, which covers any of the Registerable Common Stock
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 materials incorporated by
reference in such Registration Statement.
"Rule 415" means Rule 415 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
Rule or regulation hereafter adopted by the Commission as a replacement thereto
having substantially the same effect as such rule.
"SEC" or the "Commission" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Shelf Registration Statement" shall have the meaning set forth in Section
4 hereof.
"Underwritten Registration or Underwritten Offering" means a registration
in which securities of the Company are sold to underwriters for reoffering to
the public.
"Vesting Event" shall mean (i) the termination of the Advisory Agreement
by the Advisor following a breach by the Company of the Advisory Agreement that
remains uncured by the Company, (ii) the non-renewal of the Advisory Agreement,
or (iii) termination of the Advisory Agreement by the Company other than for
Cause (as defined in the Advisory Agreement).
2. AUTOMATIC AND DEMAND REGISTRATIONS.
(a) Form S-11. The Form S-11 which covers the Common Stock of the Company,
including a prospectus and such amendments or supplements to such Form S-11 as
may have been required prior to the date of this Agreement, has been prepared by
the Company under the provisions of the Act and has been filed with and declared
effective by the SEC. If such Form S-11 ceases to be effective for any reason at
any time prior to the delivery of all Common Stock registered thereunder, then
the Company shall use its commercially reasonable efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof. The Company shall
be responsible for all Registration Expenses in connection with any registration
pursuant to this Section 2(a). The Company shall promptly supplement and amend
such Form S-11 and the prospectus included therein if required by the rules,
regulations or instructions applicable to such form used for such registration
statement or by the Securities Act. The Form S-11 referenced in this Section
2(a) shall not eliminate or affect any right to registration provided hereunder.
4
(b) Right to Request Registration. Any time after the Closing Date
subsequent to the expiration or termination of the limitations of the Lock-Up
Agreement, the Shareholder may request pursuant to this Section 2(b),
registration under the Securities Act of the resale of all or part of the
Shareholder's Registerable Common Stock ("Demand Registration"); provided, that
if the Company is eligible to use a Shelf Registration Statement (as defined in
Section 4 hereof), the Shareholder shall be required to request that the Company
register its Registerable Common Stock on a Shelf Registration Statement rather
than requesting Demand Registrations and shall not be entitled to request any
Demand Registrations while such Shelf Registration is effective and available
for registration of the Registerable Common Stock.
(c) Number of Demand Registrations. Subject to the provisions of Section
2(b), the Shareholder shall be entitled to request an aggregate of two (2)
Demand Registrations during any twelve (12)-month period; provided, however,
that Shareholder shall not be entitled to request that less than 25% of the
Registerable Common Stock be included in any Demand Registration requested under
this Agreement.
(d) Restrictions on Demand Registrations. The Company shall not be
obligated to effect any Demand Registration within six months after the
effective date of a previous Demand Registration, a previous Shelf Registration
(as hereinafter defined) or a previous registration under which the Shareholder
had piggyback rights pursuant to Section 3 hereof wherein the Shareholder was
permitted to register, and sold, at least 25% of the shares of Registerable
Common Stock requested to be included therein. In no event shall the Company be
obligated to effect more than two (2) Demand Registrations collectively pursuant
to this Agreement and the Other Registration Rights Agreements in any single
twelve (12) month period, with the first such period measured from the date of
the first Demand Registration and ending on the same date twelve months
following such Demand Registration, whether or not a Business Day; provided,
however, that if (i) the Company is requested to effect a Demand Registration
under this Agreement which is not otherwise designated by the shareholder to be
a "shelf" registration statement and (ii) is also requested to effect one or
more Demand Registrations (as such term is defined in each of the Other
Registration Rights Agreements) pursuant to the Other Registration Rights
Agreements within any eighteen (18) month period, during which the Company is
eligible to file a Registration Statement on Form S-3 or on a successor form,
then the Company shall only be obligated with respect to such latter
registration statement during such period to register that percentage of the
Registerable Common Stock equal to the product obtained by dividing (i) the
total number of shares of Registerable Common Stock held by the Shareholder by
(ii) the total number of shares of Registerable Common Stock covered under this
Agreement and all of the Other Registration Rights Agreements. In the event that
any of the Shares of the Shareholder have not been included in a Registration
Statement because of the preceding sentence, then the Shareholder shall not be
deemed to have utilized a Demand Registration under this Agreement. The Company
may (i) postpone for up to ninety (90) days the filing or the effectiveness of a
Registration Statement for a Demand Registration if, based on the good faith
judgment of the Company's board of directors, such postponement or withdrawal is
necessary in order to avoid premature disclosure of a matter the board has
determined would be reasonably expected to result in a material adverse effect
5
to the Company's business, financial condition, results of operations or
prospects or the loss of a material opportunity to be disclosed at such time or
(ii) postpone the filing of a Demand Registration in the event the Company shall
be required to prepare audited financial statements as of a date other than its
fiscal year end (unless the shareholders requesting such registration agree to
pay the expenses of such an audit); provided, however, that in no event shall
the Company withdraw a Registration Statement under clause (i) after such
Registration Statement has been declared effective; and provided, further,
however, that in any of the events described in clause (i) or (ii) above, the
Shareholder shall be entitled to withdraw such request and, if such request is
withdrawn, such Demand Registration shall not count as one of the permitted
Demand Registrations. The Company shall provide written notice to the
Shareholder of (x) any postponement or withdrawal of the filing or effectiveness
of a Registration Statement pursuant to this Section 2(d), (y) the Company's
decision to file or seek effectiveness of such Registration Statement following
such withdrawal or postponement and (z) the effectiveness of such Registration
Statement. The Company may defer the filing of a particular Registration
Statement pursuant to this Section 2(d) only once.
(e) Selection of Underwriters. If any of the Registerable Common Stock
covered by a Demand Registration or a Shelf Registration pursuant to Section 4
hereof is to be sold in an underwritten offering, the Shareholder, if it is the
Holder who instructed the Demand Registration or Shelf Registration, or in the
case of a transaction representing a "shelf takedown", the Holder initiating
such transaction, shall have the right to select the managing underwriter(s) to
administer the offering subject to the approval of the Company, which will not
be unreasonably withheld; provided, however, that the Company shall have the
right to select the managing underwriter, subject to the approval of the Holder,
which shall not be unreasonably withheld, in the event of any underwritten
offering pursuant to a Demand Registration or "shelf takedown" where the Company
is bearing the expenses of such Demand Registration or "shelf takedown".
(f) Effective Period of Demand Registrations. After any Demand
Registration filed pursuant to this Agreement has become effective, the Company
shall use its best efforts to keep such Demand Registration effective until such
time as the Registerable Common Stock registered thereon has been disposed of
pursuant thereto. If the Company shall withdraw any Demand Registration pursuant
to subsection (e) of this Section 2 before any of the Shareholders Registerable
Common Shares covered by the withdrawn Demand Registration are unsold (a
"Withdrawn Demand Registration"), the Shareholder shall be entitled to a
replacement Demand Registration that (subject to the provisions of this Article
2) the Company shall use its best efforts to keep effective until such time as
the Registerable Common Stock registered thereon has been disposed of pursuant
thereto. Such additional Demand Registration otherwise shall be subject to all
of the provisions of this Agreement.
(g) Other Company Stock. In no event shall the Company agree to register
Common Stock or any other securities for issuance by the Company or for resale
by any Persons other than the Shareholder in any registration statement filed
pursuant to Section 2(b), without the express written consent of the
Shareholder, which consent shall be entirely discretionary.
6
(h) Conversion to Form S-3. In the event that at any time a Demand
Registration Statement is in effect and the Company is eligible to register on
Form S-3 or any successor thereto then available, the Company shall as promptly
as reasonably practicable convert such registration statement to Form S-3 or
such successor form.
(i) Acquisition Shares. Except as provided in Section 2(j) below, all
Acquisition Shares shall become Registerable Common Stock automatically and
without notice or any action by the Shareholder upon their vesting pursuant to
the provisions of the Acquisition Agreement; provided that all of the
Acquisition Shares shall immediately vest upon a Vesting Event automatically and
without notice or any action by the Shareholder.
(j) Forfeiture Event under Acquisition Agreement. In the event that a
Forfeiture Event shall occur, the Acquisition Shares not then vested shall be
deemed forfeited and shall not be eligible to be Registerable Common Stock
hereunder.
3. PIGGYBACK REGISTRATIONS.
(a) Right to Piggyback. At any time after the Closing Date, whenever the
Company proposes to register any of its common equity securities under the
Securities Act (other than the Form S-11, or a registration statement on Form
S-8 or on Form S-4 or any similar successor forms thereto), whether for its own
account or for the account of one or more stockholders of the Company, and the
registration form to be used may be used for any registration of Registerable
Common Stock (a "Piggyback Registration"), the Company shall give prompt written
notice (in any event within 10 business days after its receipt of notice of any
exercise of other demand registration rights) to the Shareholder of its
intention to effect such a registration and, subject to Sections 3(b) and 3(c),
shall include in such registration all Registerable Common Stock of the
Shareholder with respect to which the Company has received written requests for
inclusion therein within 20 days after the receipt of the Company's notice. The
Company may postpone or withdraw the filing or the effectiveness of a Piggyback
Registration at any time in its sole discretion.
(b) Priority on Primary Registrations. If a Piggyback Registration is an
underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number that
can be sold in such offering and/or that the number of shares of Registerable
Common Stock proposed to be included in any such registration would adversely
affect the price per share of the Company's equity securities to be sold in such
offering, the underwriting shall be allocated among the Company and the
Shareholder pro rata on the basis of the Common Stock and Registerable Common
Stock offered for such registration by the Company and the Shareholder,
respectively, electing to participate in such registration.
7
(c) Priority on Secondary Registrations. If a Piggyback Registration is an
underwritten secondary registration on behalf of a holder of the Company's
securities other than Registerable Common Stock ("Non-Holder Securities"), and
the managing underwriters advise the Company in writing that in their opinion
the number of securities requested to be included in such registration exceeds
the number that can be sold in such offering and/or that the number of shares of
Registerable Common Stock proposed to be included in any such registration would
adversely affect the price per share of the Company's equity securities to be
sold in such offering, the underwriting shall be allocated among the holders of
Non-Holder Securities and the Shareholder pro rata on the basis of the
Non-Holder Securities and Registerable Common Stock offered for such
registration by the holder of Non-Holder Securities and the Shareholder,
respectively, electing to participate in such registration.
(d) Selection of Underwriters. If any Piggyback Registration is an
underwritten primary offering, the Company shall have the right to select the
managing underwriter or underwriters to administer any such offering.
(e) Other Registrations. If the Company has previously filed a
Registration Statement with respect to shares of Registerable Common Stock
pursuant to Sections 2 (other than Section 2(a)) or 4 hereof or pursuant to this
Section 3, and if such previous registration has not been withdrawn or
abandoned, the Company shall not be obligated to cause to become effective any
other registration of such same shares of Registerable Common Stock or any of
its securities under the Securities Act, whether on its own behalf or at the
request of any holder or holders of such securities.
4. SHELF REGISTRATIONS.
(a) After the Closing Date, at the Shareholder's election (such election
to be made if the Shareholder may not elect to exercise any Demand
Registrations, subject to Section 4(b) below), if at any time that the Company
is eligible to use Form S-3 or any successor thereto then available to the
Company providing for the resale pursuant to Rule 415 from time to time by the
Shareholder of any and all Registerable Common Stock held by the Shareholder (a
"Shelf Registration Statement") the Shareholder requests that the Company file a
Shelf Registration Statement for a public offering of all or any portion of the
Registerable Common Stock held by the Shareholder, then the Company shall use
its best efforts to register under the Securities Act pursuant to a Shelf
Registration Statement, for public sale in accordance with the method of
disposition specified in such notice, the number of shares of Registerable
Common Stock specified in such notice. Whenever the Company is required by this
Section 4 to use its best efforts to effect the registration of Registerable
Common Stock, each of the procedures and requirements of Section 2 (including
but not limited to the requirement that the Company notify all Holders from whom
notice has not been received and provide them with the opportunity to
participate in the offering) shall apply to such registration. The Company shall
use its commercially reasonable efforts to keep the Shelf Registration Statement
effective until the earliest to occur of the date on which all of the
Registerable Common Stock ceases to be Registerable Common Stock.
8
(b) If at any time the Company is not eligible to use a Shelf Registration
Statement, the Shareholder may during such time exercise Demand Registration
Rights, regardless of any previous exercise of their rights under Section 4(a).
(c) A filing pursuant to this Section 4 shall not relieve the Company of
any obligation to effect registration of Registerable Common Stock pursuant to
Section 2 or Section 3 hereof, except as provided therein.
5. REGISTRATION PROCEDURES.
Whenever the Shareholder requests that any of its Registerable Common
Stock be registered pursuant to this Agreement, the Company shall use its best
efforts to effect the registration and the sale of such Registerable Common
Stock in accordance with the intended methods of disposition thereof as provided
by the Shareholder, and pursuant thereto the Company shall as expeditiously as
possible:
(a) prepare and file with the SEC a Registration Statement with respect to
such Registerable Common Stock, which shall be on Form S-3 (or a successor form)
providing for "short-form" registration if the Company is eligible at such time
to use such form, and use its best efforts to cause such Registration Statement
to become effective as soon as practicable thereafter; and before filing a
Registration Statement or Prospectus or any amendments or supplements thereto,
furnish to the Shareholder and the underwriter or underwriters, if any, copies
of all such documents proposed to be filed, including documents incorporated by
reference in the Prospectus and, if requested by the Shareholder, the exhibits
incorporated by reference, and the Shareholder shall have the opportunity to
object to any information pertaining to the Shareholder that is contained
therein and the Company will make the corrections reasonably requested by the
Shareholder with respect to such information prior to filing any Registration
Statement or amendment thereto or any Prospectus or any supplement thereto.
The Company, at least 10 business days prior to filing a Registration
Statement or at least five days prior to filing a prospectus or any amendment or
supplement to such Registration Statement or prospectus, including a document
incorporated by reference therein, will furnish to (i) the Shareholder, (ii)
counsel to the Shareholder and (iii) each underwriter, if any, named in the
Registration Statement or an amendment or supplement thereto of the Shares
covered by such Registration Statement, copies of such Registration Statement
and each amendment or supplement as proposed to be filed, together with exhibits
thereto, which documents will be subject to reasonable review and approval
(which approval may not be unreasonably withheld) by each of the foregoing
within five days after delivery (except that such review and approval of any
prospectus or any amendment or supplement to such Registration Statement or
prospectus must be within three days), and thereafter, furnish to the
Shareholder, Shareholder's counsel and underwriters, if any, such number of
copies of such Registration Statement, each amendment and supplement thereto (in
each case including all exhibits thereto and documents incorporated by reference
9
therein), the prospectus included in such Registration Statement (including each
preliminary prospectus) and such other documents or information as the
Shareholder, Shareholder's counsel or any underwriter of the Shareholder's
Shares may reasonably request in order to facilitate the disposition of the
Shares; provided, however, that notwithstanding the foregoing, if the Company
intends to file any prospectus, prospectus supplement or prospectus sticker
which does not make any material changes in the documents already filed
(including, without limitation, any prospectus under Rule 430A or 424(b)), then
Shareholder's counsel will be afforded such opportunity to review such documents
prior to filing consistent with the time constraints involved in filing such
document, but in any event no less than one business day;
(b) prepare and file with the SEC such amendments and supplements to such
Registration Statement and the Prospectus used in connection therewith as may be
necessary to keep such Registration Statement effective for such period as is
necessary to complete the distribution of the securities covered by such
Registration Statement and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such Registration Statement;
(c) furnish to each seller of Registerable Common Stock such number of
copies of such Registration Statement, each amendment and supplement thereto,
the Prospectus included in such Registration Statement (including each
preliminary Prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registerable Common Stock
owned by such seller;
(d) use its commercially reasonable efforts to become and remain eligible
to file registration statements on Form S-3 or any successor thereto then
available, and if applicable to utilize "well known seasoned issuer status", and
to register or qualify such Registerable Common Stock under such other
securities or blue sky laws of such jurisdictions as any seller reasonably
requests and do any and all other acts and things which may be reasonably
necessary or advisable to enable such seller to consummate the disposition in
such jurisdictions of the Registerable Common Stock owned by such seller
(provided, that the Company will not be required to (i) qualify generally to do
business in any jurisdiction where it would not otherwise be required to qualify
but for this subparagraph (d), (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction);
(e) notify each seller of such Registerable Common Stock, at any time when
a Prospectus relating thereto is required to be delivered under the Securities
Act, of the occurrence of any event as a result of which the Prospectus included
in such Registration Statement contains an untrue statement of a material fact
or omits any fact necessary to make the statements therein not misleading, and
prepare promptly a supplement or amendment to such Prospectus so that such
Prospectus, as then amended and supplemented, shall not contain an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein not misleading;
10
(f) in the case of an underwritten offering, enter into such customary
agreements together with the Operating Partnership (including underwriting
agreements in customary form) and take all such other actions as the
underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such Registerable Common Stock (including, without limitation,
effecting a stock split or a combination of shares and making members of senior
management of the Company available to participate in, and cause them to
cooperate with the underwriters in connection with, "road-show" and other
customary marketing activities (including one-on-one meetings with prospective
purchasers of the Registerable Common Stock)) and cause to be delivered to the
underwriters and the sellers, if any, opinions of counsel to the Company and the
Operating Partnership in customary form, as well as closing certificates and
other customary documents covering such matters as are customarily covered by
opinions for and certificates in an underwritten public offering as the
underwriters may request and addressed to the underwriters and the sellers;
provided, however, that notwithstanding anything else contained in this
Agreement, the Company shall not be obligated to effect an aggregate of more
than three underwritten offerings or participate in more than two "road shows"
(which, for the purposes of this sentence shall not include presentations that
involve only telephonic or internet-based marketing and do not require any
travel by the Company's management) in any twenty-four (24) month period, and
not more than one underwritten offering every six (6) months under this
Agreement or under the Other Registration Rights Agreements; and provided
further, however, that if an underwritten public offering (including a public
sale to a registered broker-dealer) is effected at the request of Apollo or
Vornado Realty L.P. under the Other Registration Rights Agreements, the
Shareholder shall have the right to participate in such offering, and Apollo and
Vornado Realty L.P. shall have the right to participate in any underwritten
public offering effected at the request of the Shareholder under this Agreement;
and if the managing underwriters or broker-dealers of any such underwritten
offering advise the Shareholder, Apollo and Vornado Realty L.P. in writing that
in their opinion the number of shares of Registerable Common Stock proposed to
be included in any such offering exceeds the number of securities that can be
sold in such offering and/or that the number of shares of Registerable Common
Stock proposed to be included in any such offering would materially adversely
affect the price per share of the Company's equity securities to be sold in such
offering, Apollo, Vornado Realty L.P. and the Shareholder shall include in such
offering only the number of shares of Registerable Common Stock that, in the
opinion of such managing underwriters (or registered broker-dealer), can be
sold. If the number of shares that can be sold exceeds the number of shares of
Registerable Common Stock proposed to be sold, such excess shall be allocated
pro rata among theHolders of Common Stock desiring to participate in such
offering based on the amount of such Common Stock initially requested to be
registered by such Holders or as such Holders may otherwise agree.
Only Apollo, the Shareholder and Vornado Realty L.P., and their affiliates
holding Registerable Common Stock shall be entitled to participate in any public
underwritten offerings pursuant to this Agreement with respect to Registerable
Common Stock (which for purposes of this paragraph (f) includes Registerable
Common Stock as defined in the Other Registration Rights Agreements).
11
If any of Apollo, the Shareholder or Vornado Realty L.P. determines not to
participate in an Underwritten Offering with respect to which it is entitled
hereunder to participate in hereunder or under the Other Registration Rights
Agreements, then the non-participating party shall agree to such lockup period
with respect to its Common Stock as the managing underwriters or broker dealer
deems reasonably necessary for purposes of effecting the public offering.
(g) make available, for inspection by any seller of Registerable Common
Stock, any underwriter participating in any disposition pursuant to such
Registration Statement, and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such Registration Statement;
(h) to use its best efforts to cause all such Registerable Common Stock to
be listed on each securities exchange on which securities of the same class
issued by the Company are then listed or, if no such similar securities are then
listed, on Nasdaq or a national securities exchange selected by the Company;
(i) provide a transfer agent and registrar for all such Registerable
Common Stock not later than the effective date of such Registration Statement;
(j) if requested, cause to be delivered, immediately prior to the
effectiveness of the Registration Statement (and, in the case of an underwritten
offering, at the time of delivery of any Registerable Common Stock sold pursuant
thereto), letters from the Company's independent certified public accountants
addressed to the Shareholder and each underwriter, if any, stating that such
accountants are independent public accountants within the meaning of the
Securities Act and the applicable rules and regulations adopted by the SEC
thereunder, and otherwise in customary form and covering such financial and
accounting matters as are customarily covered by letters of the independent
certified public accountants delivered in connection with primary or secondary
underwritten public offerings, as the case may be;
(k) make generally available to its stockholders a consolidated earnings
statement (which need not be audited) for the 12 months beginning after the
effective date of a Registration Statement as soon as reasonably practicable
after the end of such period, which earnings statement shall satisfy the
requirements of an earning statement under Section 11(a) of the Securities Act;
12
(l) promptly notify the Shareholder and the underwriter or underwriters,
if any:
(i) when the Registration Statement, any pre-effective amendment,
the Prospectus or any Prospectus supplement or post-effective amendment to the
Registration Statement has been filed and, with respect to the Registration
Statement or any post-effective amendment, when the same has become effective;
(ii) of any SEC comments applicable to the Registration Statement or
Prospectus or written request from the SEC for any amendments or supplements to
the Registration Statement or Prospectus;
(iii) of the notification to the Company by the SEC of its
initiation of any proceeding with respect to the issuance by the SEC of any stop
order suspending the effectiveness of the Registration Statement;
(iv) of the receipt by the Company of any notification with respect
to the suspension of the qualification of any Registerable Common Stock for sale
under the applicable securities or blue sky laws of any jurisdiction;
(v) of the existence of, any fact or the happening of any event that
makes any statement of material fact made in any registration statement filed
pursuant to this Agreement or related prospectus untrue in any material respect,
or that requires the making of any changes in such registration statement so
that, in the case of the registration statement, it will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading and
that, in the case of the prospectus, including documents incorporated by
reference therein, such prospectus will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; and
(vi) of the determination by the Company that a post-effective
amendment to a registration statement filed pursuant to this Agreement will be
filed with the SEC and is due.
(m) promptly take such actions as necessary to respond, cure or eliminate,
as the case may be, any of the events referred to in clause (l)(ii), (iii), (iv)
or (v) so that the prospectus, as then amended or supplemented, as the case may
be, shall not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
The Company shall file, and shall use its commercially reasonable efforts
to timely file, all reports required to be filed by it under the Securities Act
and the Exchange Act and the rules and regulations adopted by the SEC
thereunder, and take such further action as the Shareholder may reasonably
request, all to the extent required to enable the Shareholder to be eligible to
sell Registerable Common Stock pursuant to Rule 144 (or any similar rule then in
effect).
13
In connection with any registration pursuant to which any of a
Shareholder's Registerable Common Stock is to be sold, the Company may require
that the Shareholder furnish to the Company any other information regarding the
Shareholder and the distribution of such securities as the Company may from time
to time reasonably request in writing.
The Shareholder agrees that by having its stock treated as Registerable
Common Stock hereunder that, upon notice of the happening of any event described
in l(v) above (a "Suspension Notice"), the Shareholder will forthwith
discontinue disposition of Registerable Common Stock until the Shareholder is
advised in writing by the Company that the use of the Prospectus may be resumed
and is furnished with a supplemented or amended Prospectus as contemplated by
Section 5(e) hereof, and, if so directed by the Company, the Shareholder will
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in the Shareholder's possession, of the Prospectus
covering such Registerable Common Stock current at the time of receipt of such
notice; provided, however, that such postponement of sales of Registerable
Common Stock shall not exceed ninety (90) days in the aggregate in any one year;
provided, further, however, that not later than the last day of such ninety (90)
day period or such shorter period as may apply, the Company shall have provided
to the Shareholder a supplemented or amended Prospectus as contemplated by
Section 5(e) hereof. If the Company shall give any notice to suspend the
disposition of Registerable Common Stock pursuant to a Prospectus, the Company
shall extend the period of time during which the Company is required to maintain
the Registration Statement effective pursuant to this Agreement by the number of
days during the period from and including the date of the giving of such notice
to and including the date the Shareholder either is advised by the Company that
the use of the Prospectus may be resumed or receives the copies of the
supplemented or amended Prospectus contemplated by Section 5(e). In any event,
the Company shall not be entitled to deliver more than one (1) Suspension Notice
in any one year.
6. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of or compliance
with this Agreement, including, without limitation, all registration and filing
fees, underwriting discounts and commissions, NASD fees, fees and expenses of
compliance with securities or blue sky laws, listing application fees, printing
expenses, transfer agent's and registrar's fees, cost of distributing
Prospectuses in preliminary and final form as well as any supplements thereto,
and fees and disbursements of counsel for the Company and all independent
certified public accountants and other Persons retained by the Company (all such
expenses being herein called "Registration Expenses"), shall be borne by the
Shareholder; provided, however, that the Company shall bear the expenses,
exclusive of underwriting discounts and commissions, incident to the Form S-11,
14
one (1) Registration Statement filed pursuant to Section 4(a), including up to
three (3) "shelf takedowns" or offerings pursuant to Rule 430A under the
Securities Act, if applicable, and up to three (3) Demand Registrations pursuant
to Section 2(b), but in no event shall the Company be obligated to bear the
expense of more than three (3) offerings (exclusive of the expenses incident to
the Form S-11 and one (1) Registration Statement filed pursuant to Section 4(a))
pursuant to this Section 6(a) (or four (4) offerings if the Shareholder is
unable, through its commercially reasonable efforts, to dispose of all its
Registerable Common Stock after such three (3) offerings). The Company shall pay
its internal expenses (including, without limitation, all salaries and expenses
of its officers and employees performing legal or accounting duties), and the
expense of any annual audit or quarterly review, and the expense of any
liability insurance.
7. INDEMNIFICATION.
(a) The Company and the Operating Partnership shall indemnify, to the
fullest extent permitted by law, the Shareholder, its officers, directors,
trustees, partners, and Affiliates and each Person who controls such Shareholder
(within the meaning of the Securities Act) against all losses, claims, damages,
expenses and liabilities, joint or several, actions or proceedings, to which
each such indemnified party may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages, expenses (including
reasonable costs of investigation) or liabilities (or actions or proceedings in
respect thereof) arise out of or based upon any untrue or alleged untrue
statement of material fact contained in any Registration Statement, Prospectus
or any amendment thereof or supplement thereto or any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading or any violation or alleged violation by
the Company of the Securities Act, the Exchange Act or applicable "blue sky"
laws and the Company and the Operating Partnership will reimburse the
Shareholder and its directors, trustees, officers, partners, agents, employees
or affiliates, underwriters and controlling persons for any legal or other
expenses (as such legal or other expenses are incurred) reasonably incurred by
them in connection with investigating, preparing or defending any such loss,
claim, damage, expense, liability, action or proceeding, except insofar as the
same are made in reliance and in conformity with information relating to the
Shareholder furnished in writing to the Company by the Shareholder expressly for
use therein or caused by the Shareholder's failure to deliver to the
Shareholder's immediate purchaser a copy of the final Prospectus or any
amendments or supplements thereto (if the same was required by applicable law to
be so delivered) after the Company has furnished the Shareholder with a
sufficient number of copies of the same and the claim would not have arisen if
the final Prospectus, amendment or supplement had been delivered to the
claimant. In connection with an underwritten offering, the Company shall
indemnify such underwriters, their officers and directors and each Person who
controls such underwriters (within the meaning of the Securities Act) to the
same extent as provided above with respect to the indemnification of the
Shareholder.
(b) In connection with any Registration Statement in which the Shareholder
is participating, the Shareholder shall furnish to the Company in writing such
information and affidavits as the Company reasonably requests expressly for use
in connection with any such Registration Statement or Prospectus and, shall
indemnify, to the fullest extent permitted by law, the Company, its officers,
15
directors, Affiliates, and each Person who controls the Company (within the
meaning of the Securities Act) against all losses, claims, damages, expenses and
liabilities joint or several, actions or proceedings, to which each such
indemnified party may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages, expenses or liabilities (or actions or
proceedings in respect thereof) arise out of or based upon any untrue or alleged
untrue statement of material fact contained in the Registration Statement,
Prospectus or preliminary Prospectus or any amendment thereof or supplement
thereto or any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
the Shareholder will reimburse each of the Company and the Operating Partnership
and each such director, trustee, officer, partner, agent, employee or affiliate,
underwriter and controlling person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, expense, liability action or proceeding, but only to the extent
that the same are made in reliance and in conformity with information relating
to the Shareholder furnished in writing to the Company by the Shareholder
expressly for use therein. Notwithstanding anything in this Section 7(b), the
aggregate amount which may be recovered from the Shareholder pursuant to the
indemnification provided for in this Section 7(b) shall be limited to the total
proceeds received by the Shareholder from the sale of such Shareholder's
Registerable Common Stock (net of underwriting discounts and commissions). In no
event shall the Shareholder be jointly liable with any other holder of
securities involved in the sale of the Company's securities.
(c) Any Person entitled to indemnification hereunder shall (i) give prompt
written notice to the indemnifying party of any claim with respect to which it
seeks indemnification and (ii) unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist with respect to such claim, permit such indemnifying party to
assume the defense of such claim with counsel reasonably satisfactory to the
indemnified party. The failure to give prompt notice as provided herein shall
not relieve the indemnifying party of its obligations hereunder, except to the
extent that the indemnifying party is actually and materially prejudiced by such
failure. The indemnifying party will not, without the prior written consent of
the indemnified party, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnification may be sought hereunder (whether or not such
indemnified party or any Person who controls such indemnified party is a party
to such claim, action, suit or proceeding), if such settlement, compromise or
consent (i) does not include an unconditional release of such indemnified party
from all liability and no finding of liability arising out of such claim,
action, suit or proceeding or (ii) requires anything from the indemnified party
other than the payment of money damages which the indemnifying party has agreed
to pay in full. An indemnifying party who is not entitled to, or elects not to,
assume the defense of a claim shall not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party there may be one or more legal or equitable defenses
available to such indemnified party which are in addition to or may conflict
with those available to another indemnified party with respect to such claim.
16
(d) The indemnification provided for under this Agreement shall remain in
full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling Person of such
indemnified party and shall survive the transfer of securities.
(e) If the indemnification provided for in or pursuant to this Section 7
is due in accordance with the terms hereof, but is held by a court to be
unavailable or unenforceable in respect of any losses, claims, damages,
liabilities or expenses referred to herein, then each applicable indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified Person as a result of such losses,
claims, damages, liabilities or expenses in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one hand and of the
indemnified party on the other in connection with the statements or omissions
which result in such losses, claims, damages, liabilities or expenses as well as
any other relevant equitable considerations. The relative fault of the
indemnifying party on the one hand and of the indemnified Person on the other
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 indemnifying
party or by the indemnified party, and by such party's relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. In no event shall the liability of the selling
Shareholder under this Section 7(e) be greater in amount than the amount of net
proceeds received by such Shareholder upon such sale or the amount for which
such indemnifying party would have been obligated to pay by way of
indemnification if the indemnification provided for under Section 7(b) hereof
had been available under the circumstances less any amounts recovered from the
Shareholder under Section 7(b).
(f) In the event that advances are not made pursuant to this Section 7 or
payment has not otherwise been timely made, each indemnified party shall be
entitled to seek a final adjudication in an appropriate court of competent
jurisdiction of the entitlement of the indemnified party to indemnification or
advances hereunder.
The Company, the Operating Partnership and the Shareholder agree that they
shall be precluded from asserting that the procedures and presumptions of this
Section 7 are not valid, binding and enforceable. The Company, the Operating
Partnership and the Shareholder further agree to stipulate in any such court
that the Company, the Operating Partnership, and the Shareholder are bound by
all the provisions of this Section 7 and are precluded from making any assertion
to the contrary.
To the extent deemed appropriate by the court, interest shall be paid by
the indemnifying party to the indemnified party at a reasonable interest rate
for amounts which the indemnifying party has not timely paid as the result of
its indemnification and contribution obligations hereunder.
17
In the event that any indemnified party is a party to or intervenes in any
proceeding to which the validity or enforceability of this Section 7 is at issue
or seeks an adjudication to enforce the rights of any indemnified party under,
or to recover damages for breach of, this Section 7, the indemnified party, if
the indemnified party prevails in whole in such action, shall be entitled to
recover from the indemnifying party and shall be indemnified by the indemnifying
party against, any expenses incurred by the indemnified party. If it is
determined that the indemnified party is entitled to indemnification for part
(but not all) of the indemnification so requested, expenses incurred in seeking
enforcement of such partial indemnification shall be reasonably prorated among
the claims, issues or matters for which the indemnified party is entitled to
indemnification and for such claims, issues or matters for which the indemnified
party is not so entitled.
The indemnity agreements contained in this Section 7 shall be in addition
to any other rights (to indemnification, contribution or otherwise) which any
indemnified party may have pursuant to law or contract and shall remain
operative and in full force and effect regardless of any investigation made or
omitted by or on behalf of any indemnified party and shall survive the transfer
and sale of any Registerable Common Stock by the Shareholder.
8. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
No Person may participate in any registration hereunder that is
underwritten unless such Person (a) agrees to sell such Person's securities on
the basis provided in any underwriting arrangements approved by the Person or
Persons entitled hereunder to approve such arrangements and (b) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements.
9. RULE 144.
The Company covenants that it will file, and use its commercially
reasonable efforts to timely file, the reports required to be filed by it under
the Securities Act and the Exchange Act and the rules and regulations adopted by
the SEC thereunder, and it will take such further action as the Shareholder may
reasonably request to make available adequate current public information with
respect to the Company meeting the current public information requirements of
Rule 144(c) under the Securities Act (to the extent such information is
available), to the extent required to enable the Shareholder, subject to the
expiration of the restrictions on transfer under the Lock-Up Agreement, to sell
the Registerable Common Stock 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, or (ii) any
similar rule or regulation hereafter adopted by the SEC. Upon the request of the
Shareholder, the Company will deliver to the Shareholder a written statement as
to whether it has complied with such information and requirements.
18
10. MISCELLANEOUS.
(a) Notices. All notices, requests and other communications to any party
hereunder shall be in writing (including facsimile or similar writing) and shall
be given,
If to the Company:
Xxxxxxx Realty Trust, Inc.
Two Xxxxxxx Xxxxx
Xxxx X, Xxxxx 00
Xxxxxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxxx
Fax: (000) 000-0000
Tel: (000) 000-0000
If to the Shareholder:
First Union Real Estate Equity and Mortgage Investments
0 Xxxxxxxx Xxxxx, Xxxxx 000
P.O Box 9507
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxx
Fax: (000) 000-0000
Tel: (617) 000- 0000
or such other address or facsimile number as such party (or transferee) may
hereafter specify for the purpose by notice to the other parties. Each such
notice, request or other communication shall be effective (a) if given by
facsimile, when such facsimile is transmitted to the facsimile number specified
in this Section and the appropriate facsimile confirmation is received or (b) if
given by any other means, when delivered at the address specified in this
Section.
(b) No Waivers. No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
(c) Expenses. Except as otherwise provided for herein or otherwise agreed
to in writing by the parties, all costs and expenses incurred in connection with
the preparation of this Agreement shall be paid by the Company.
(d) Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that neither party may assign its
rights or obligations under this Agreement without the prior written consent of
19
the other party, except that the Shareholder may assign its rights hereunder to
any Affiliate and such Affiliate shall be entitled to the benefits of this
Agreement as if it had been a signatory hereto.
(e) Governing Law. This Agreement shall be construed in accordance with
and governed by the law of the State of New York, without regard to principles
of conflicts of law.
(f) Jurisdiction. Any suit, action or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this
Agreement or the transactions contemplated hereby may be brought in any federal
or state court located in the County and State of New York, and each of the
parties hereby consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit, action or
proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 10(a) shall be deemed
effective service of process on such party.
(g) Waiver of Jury Trial.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(h) Counterparts; Effectiveness. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
(i) Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter of this Agreement and
supersedes all prior agreements and understandings, both oral and written,
between the parties with respect to the transactions contemplated herein. Except
as provided herein, no provision of this Agreement or any other agreement
contemplated hereby is intended to confer on any Person other than the parties
hereto any rights or remedies.
(j) Captions. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
(k) Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction or other authority to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
20
effect and shall in no way be affected, impaired or invalidated so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such a
determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby be consummated as originally contemplated to the fullest extent possible.
(l) Amendments. 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 without the
prior written consent of the parties hereto.
(m) Aggregation of Stock. All Registerable Common Stock held by or
acquired by any Affiliated Persons will be aggregated together for the purpose
of determining the availability of any rights under this Agreement.
(n) Equitable Relief. The parties hereto agree that legal remedies may be
inadequate to enforce the provisions of this Agreement and that equitable
relief, including specific performance and injunctive relief, may be used to
enforce the provisions of this Agreement.
(o) No Inconsistent Agreements. None of the Company or the Operating
Partnership has entered and neither of them will enter into any agreement that
is inconsistent with the rights granted to the Shareholder in this Agreement or
that otherwise conflicts with the provisions hereof. The rights granted to the
Shareholder hereunder do not in any way conflict with and are not inconsistent
with the rights granted to the holders of the Company or the Operating
Partnership's other issued and outstanding securities under any such agreements.
From and after the date of this Agreement, neither the Company nor the Operating
Partnership will enter into any agreement with any holder or prospective holder
of any securities of the Company or the Operating Partnership which would grant
such holder or prospective holder more favorable rights than those granted to
the Shareholder hereunder or substantially similar or equivalent rights to those
granted to the Shareholder.
(p) No Adverse Action Affecting the Registerable Common Stock. Neither the
Company nor the Operating Partnership shall take any action with respect to the
Registerable Common Stock with an intent to adversely affect or that does
adversely affect the ability of the Shareholder to include such Registerable
Common Stock in a registration undertaken pursuant to this Agreement or their
offer and sale. Notwithstanding the foregoing, the provisions of this Section
10(p) shall not apply to the Other Registration Rights Agreements.
21
IN WITNESS WHEREOF, this Registration Rights Agreement has been duly
executed by each of the parties hereto as of the date first written above.
XXXXXXX REALTY TRUST, INC.
By:
------------------------------------
Name:
Title:
FIRST UNION REAL ESTATE EQUITY AND
MORTGAGE INVESTMENTS
By:
------------------------------------
Name:
Title:
22
