EXHIBIT 10.6
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement executed on April 30, 2003, to be
effective as of March 20, 2003 (the "Agreement"), is by and between Sardy House,
LLC, a Colorado limited liability company ("Sardy"), and North and South Aspen,
L.L.C., a Colorado limited liability company ("NASA").
RECITALS
WHEREAS, Sardy and NASA have entered into that certain Contract for the
Purchase and Sale of Real Estate dated as of March 20, 2003 (the "Purchase
Contract"), whereby upon the closing of the Purchase Contract Sardy issued to
NASA a total of 25 units (the "Units") of Sardy limited liability company
membership interests (the "Sardy Securities") in exchange for the conveyance of
the Sardy House real property as set forth in the Purchase Contract; and
WHEREAS, in connection with the issuance of the Units of Sardy
Securities to NASA under the Purchase Contract, Sardy and NASA have agreed that
Sardy shall grant to NASA certain registration rights with respect to the Units
of Sardy Securities issued under the Purchase Contract, under the terms and
conditions as set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and in the Purchase Contract, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
AGREEMENT
Section 1. Certain Definitions. For purposes of this Agreement, the
following terms shall have the following respective meanings:
(a) "Effectiveness Period" shall have the meaning set forth in
Section 2(c) hereof.
(b) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
(c) "Form S-11" shall mean such form under the Securities Act
as in effect on the date hereof or any registration form under the
Securities Act subsequently adopted by the SEC for the registration of
securities of real estate companies.
(d) "Holder" shall mean NASA as a holder of Registrable
Securities, or any transferee or assignee of NASA pursuant to the
provisions of Section 7 hereof.
(e) "NASD" shall mean the National Association of Securities
Dealers, Inc.
(f) "Prospectus" shall mean the prospectus included in the
Registration Statement, as amended or supplemented by any prospectus
supplement and by all other
amendments thereto, including post-effective amendments, and all
material incorporated by reference into such Prospectus.
(g) "Registrable Securities" shall mean the Units of Sardy
Securities issued to NASA under the Purchase Contract until in the case
of such Units the effective registration under the Securities Act and
resale in accordance with the Registration Statement covering such
Units.
(h) "Registration Statement" shall have the meaning set forth
in Section 2(a) hereof.
(i) "Securities Act" shall mean the Securities Act of 1933, as
amended.
(j) "SEC" shall mean the United States Securities and Exchange
Commission.
(k) "Violation" shall have the meaning set forth in Section
5(a) hereof.
All other capitalized terms used but not defined herein shall have the
respective meanings given to them in the Purchase Contract.
Section 2. Form S-11 Registration.
(a) Sardy shall use its reasonable best efforts to as soon as
practicable prepare and file with the SEC, with a view to having such
registration statement declared effective by the SEC as soon as
practicable after it has been filed, a registration statement on Form
S-11 (or, if Form S-11 is not then available or appropriate, on such
form of registration statement that is then available and appropriate
to effect a registration of all Registrable Securities held by the
Holder, subject to the consent of the Holder) pursuant to Rule 415
under the Securities Act for the purpose of registering under the
Securities Act all of the Registrable Securities held by the Holder for
resale by, and for the account of (subject to the provisions of Section
4(b)), the Holder as a selling security holder thereunder (the
"Registration Statement"), which shall also include the Prospectus,
amendments and supplements to such registration statement, all
exhibits, and all materials incorporated by reference or explicitly
deemed to be incorporated by reference in such registration statement.
(b) Sardy shall use its reasonable best efforts to cause the
Registration Statement to be declared effective by the SEC as soon as
practicable after it has been filed.
(c) Subject to Section 3(b)(i) hereof, Sardy shall use its
reasonable best efforts to keep the Registration Statement continuously
effective, supplemented and amended as required pursuant to the
provisions of Section 3(b) hereof to the extent necessary to ensure
that (i) it is available for resales by the Holder and (ii) conforms
with the requirements of this Agreement and the Securities Act and the
rules and regulations of the SEC promulgated thereunder as announced
from time to time for a period (the "Effectiveness Period") of:
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(i) two years after the effective date of the
Registration Statement; or
(ii) such shorter period, from the effective date of
the Registration Statement until the sale pursuant to the
Registration Statement of all of the Registrable Securities.
(d) The Holder shall furnish to Sardy such information as
Sardy may reasonably request in connection with the Registration
Statement, including information regarding the Holder, the Registrable
Securities held by the Holder, and the intended method of disposition
of such securities. The Holder agrees to furnish promptly to Sardy all
information required to be disclosed in order to make information
previously furnished to Sardy by the Holder not materially misleading.
Section 3. Registration Procedures.
(a) In connection with the Registration Statement, Sardy shall
comply with all the provisions of Section 3(b) hereof and shall, in
accordance with Section 2 hereof, prepare and file with the SEC a
Registration Statement relating to the registration of the Registrable
Securities on an appropriate form under the Securities Act.
(b) In connection with the Registration Statement and any
Prospectus required by this Agreement to permit the resale of
Registrable Securities, Sardy shall:
(i) Subject to any notice by Sardy in accordance with
this Section 3(b) of the existence of any fact or event of the
kind described in Section 3(b)(iii)(D), use its reasonable
best efforts to keep the Registration Statement continuously
effective during the Effectiveness Period; upon the occurrence
of any event that would cause the Registration Statement or
the Prospectus contained therein (A) to contain a material
misstatement or omission or (B) not be effective and usable
for the resale of Registrable Securities during the
Effectiveness Period, Sardy shall file promptly an appropriate
amendment to the Registration Statement, in the case of clause
(A), correcting any such misstatement or omission, and, in the
case of either clause (A) or (B), use its reasonable best
efforts to cause such amendment to be declared effective and
the Registration Statement and the related Prospectus to
become usable for their intended purposes as soon as
practicable thereafter.
(ii) Prepare and file with the SEC such amendments
and post-effective amendments to the Registration Statement as
may be necessary to keep the Registration Statement effective
during the Effectiveness Period; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the
Securities Act, and to comply fully with the applicable
provisions of Rules 424 and 430A under the Securities Act in a
timely manner; and comply with the provisions of the
Securities Act with respect to the disposition of all
securities covered by the Registration Statement during the
applicable period in accordance with the intended method or
methods of distribution by the Holder as set forth in the
Registration Statement or supplement to the Prospectus.
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(iii) Promptly advise the Holder and any
underwriter(s), and if requested by such persons confirm such
advice in writing:
(A) when the Prospectus or any Prospectus
supplement or post-effective amendment has been
filed, and with respect to the Registration Statement
or any post-effective amendment thereto, when the
same has become effective,
(B) of any request by the SEC for amendments
to the Registration Statement or amendments or
supplements to the Prospectus or for additional
information relating thereto,
(C) of the issuance by the SEC of any stop
order suspending the effectiveness of the
Registration Statement under the Securities Act or of
the suspension by any state securities commission of
the qualification or registration of the Registrable
Securities for offering or sale in any jurisdiction,
or the initiation of any proceeding for any of the
preceding purposes, or
(D) of the existence of any fact or the
happening of any event, during the Effectiveness
Period, that makes any statement of a material fact
made in the Registration Statement, the Prospectus,
any amendment or supplement thereto, or any document
incorporated by reference therein untrue, or that
requires the making of any additions to or changes in
the Registration Statement or the Prospectus in order
to make the statements therein not misleading.
If at any time the SEC shall issue any stop order suspending
the effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall
issue an order suspending the qualification or registration or
exemption from qualification or registration of the
Registrable Securities under state securities or blue sky
laws, Sardy shall use its reasonable best efforts to obtain
the withdrawal or lifting of such order at the earliest
practicable time.
(iv) Furnish to the Holder and any underwriter(s),
before filing with the SEC, a copy of the Registration
Statement and copies of any Prospectus included therein or any
amendments or supplements to either of the Registration
Statement or Prospectus, which documents will be subject to
the review of the Holder and any underwriter(s) for a period
of five business days, and Sardy shall not file the
Registration Statement or Prospectus or any amendment or
supplement to the Registration Statement or Prospectus to
which the Holder or any underwriter(s) shall reasonably object
within five business days after the receipt thereof.
(v) Subject to the execution of a confidentiality
agreement reasonably acceptable to Sardy, make available at
reasonable times for inspection by one or more representatives
of any underwriter participating in any distribution pursuant
to the Registration Statement, and any attorney or accountant
retained by any of the underwriter(s), all financial and other
records, pertinent corporate documents
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and properties of Sardy as shall be reasonably necessary to
enable them to exercise any applicable due diligence
responsibilities, and cause Sardy's officers, managers and
employees to supply all information reasonably requested by
any such representative or representatives of the underwriter,
attorney or accountant in connection with the Registration
Statement after the filing thereof and before its
effectiveness; provided, however, that any information
designated by Sardy as confidential at the time of delivery of
such information shall be kept confidential by the recipient
thereof.
(vi) If requested by the Holder or any
underwriter(s), include or incorporate in the Registration
Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as the
Holder and any underwriter(s) may reasonably request to have
included therein, including, without limitation: (1)
information relating to the "plan of distribution" of the
Registrable Securities and (2) any other terms of the offering
of the Registrable Securities; and make all required filings
of such Prospectus supplement or post-effective amendment as
soon as reasonably practicable after Sardy is notified of the
matters to be included or incorporated in such Prospectus
supplement or post-effective amendment.
(vii) Furnish to the Holder and any underwriter(s),
without charge, at least one copy of the Registration
Statement, as first filed with the SEC, and of each amendment
thereto (and any documents incorporated by reference therein
or exhibits thereto (or exhibits incorporated in such exhibits
by reference) as such person may request in writing).
(viii) Deliver to the Holder and any underwriter(s),
without charge, as many copies of the Prospectus (including
each preliminary prospectus) and any amendment or supplement
thereto as such persons reasonably may request; subject to any
notice by Sardy in accordance with this Section 3(b) of the
existence of any fact or event of the kind described in
Section 3(b)(iii)(D), Sardy hereby consents to the use of the
Prospectus and any amendment or supplement thereto by the
Holder and any underwriter(s) in connection with the offering
and the sale of the Registrable Securities covered by the
Prospectus or any amendment or supplement thereto.
(ix) If an underwriting agreement is entered into,
Sardy shall furnish to the Holder and each underwriter in such
substance and scope as they may reasonably request and as are
customarily furnished by issuers to underwriters such
documents and certificates to evidence compliance with
customary terms and conditions as may be contained in the
underwriting agreement.
(x) Before any public offering of Registrable
Securities, cooperate with the Holder, any underwriter(s), and
their respective counsel in connection with the registration
and qualification of the Registrable Securities under the
securities or blue sky laws of such jurisdictions as the
Holder or any underwriter(s) may reasonably request and do any
and all other acts or things
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necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by the
Registration Statement; provided, however, that Sardy shall
not be required to subject itself to taxation in any such
jurisdiction if it is not now so subject.
(xi) Cooperate with the Holder and any underwriter(s)
to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold
and not bearing any restrictive legends (unless required by
applicable securities laws or any other agreements to which
the Registrable Securities are subject, including the Sardy
Limited Liability Company Operating Agreement); and enable
such Registrable Securities to be in such denominations (as
permitted under the Sardy Limited Liability Company Operating
Agreement) and registered in such names as the Holder or any
underwriter(s) may reasonably request at least two business
days before any sale of Registrable Securities made by such
underwriter(s).
(xii) Use its reasonable best efforts to cause the
Registrable Securities covered by the Registration Statement
to be registered with or approved by such other United States
or state governmental agencies or authorities as may be
necessary to enable the Holder or any underwriter(s) to
consummate the disposition of such Registrable Securities,
subject to the proviso in clause (x) above.
(xiii) If any fact or event contemplated by Section
3(b)(iii)(D) hereof shall exist or have occurred, use its
reasonable best efforts to prepare a supplement or
post-effective amendment to the Registration Statement or
related Prospectus or any document incorporated therein by
reference or file any other required document so that, as
thereafter delivered to the purchasers of Registrable
Securities, the Prospectus will not contain an 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.
(xiv) Cooperate and assist in any filings required to
be made with the NASD and in the performance of any due
diligence investigation by any underwriter that is required in
accordance with NASD rules and regulations.
(xv) Otherwise use its reasonable best efforts to
comply with all applicable rules and regulations of the SEC
and all reporting requirements under the rules and regulations
of the Exchange Act.
(xvi) Provide promptly to the Holder upon request
each document filed with the SEC pursuant to the requirements
of Section 13 and Section 15 of the Exchange Act after the
effective date of the Registration Statement.
(xvii) Otherwise use its reasonable best efforts to
enable the Holder to dispose of the Registrable Securities on
the most favorable terms.
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(c) The Holder agrees that, upon receipt of any notice from
Sardy of the existence of any fact of the kind described in Section
3(b)(iii)(D) hereof, the Holder shall, and shall use its reasonable
best efforts to cause any underwriter(s) to, forthwith discontinue the
disposition of Registrable Securities pursuant to the Registration
Statement until:
(i) The Holder has received copies of the
supplemented or amended Prospectus contemplated by Section
3(b)(xiii) hereof; or
(ii) The Holder is advised in writing by Sardy that
the use of the Prospectus may be resumed.
(d) The Holder shall furnish to Sardy such information
regarding the Holder and the proposed distribution by the Holder of its
Registrable Securities as Sardy may reasonably request for use in
connection with the Registration Statement or Prospectus or preliminary
Prospectus included therein. The Holder, as a selling security holder
named in the Registration Statement, shall promptly furnish to Sardy
all information required to be disclosed in order to make information
previously furnished to Sardy by the Holder not materially misleading
and such other information as Sardy may from time to time reasonably
request.
Section 4. Registration Expenses and Application of Proceeds from
Sales.
(a) All expenses incurred in connection with Sardy's
performance or compliance with this Agreement, including without
limitation all registration, filing and qualification fees, printing
fees and expenses, accounting fees and expenses, fees and disbursements
of counsel for Sardy shall be borne by the Holder. Without limiting the
generality of the foregoing, Sardy shall not be required to pay for:
(a) the expenses, fees and disbursements of any counsel for the Holder
or any underwriter(s), or (b) any underwriting discounts, commissions
and transfer taxes incurred in connection with a resale of Registrable
Securities.
(b) The Holder agrees that:
(i) Any resales of the Registrable Securities by the
Holder shall be subject to a minimum "all or none" offering
condition such that funds for the purchase of Sardy Securities
from the Holder shall be deposited into an escrow account
under an escrow agreement which shall provide that the funds
shall not be released from escrow to the Holder until a
minimum number of Units are sold which is sufficient to enable
the Holder to completely repay, from the net proceeds of the
sale of such minimum number of Units, all of the outstanding
indebtedness of NASA and Sardy to WestStar Bank under that
certain Construction Loan Agreement dated March 28, 2003 (the
"Construction Loan Agreement") among NASA, Sardy and WestStar
Bank, which indebtedness shall reflect the completion of the
Sardy renovation construction project referred to in the
Construction Loan Agreement, and WestStar Bank's security
interest in
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Sardy's property in connection with the Construction Loan
Agreement can be released by WestStar Bank; and
(ii) The net proceeds of the sale of Sardy Securities
by the Holder released from escrow to the Holder upon
satisfaction of the minimum offering condition set forth in
Section 4(b)(i) shall be applied by Holder to complete
repayment of all outstanding indebtedness of NASA and Sardy to
WestStar Bank under the Construction Loan Agreement as
referred to in Section 4(b)(i), and in connection therewith
the Holder shall secure the release by WestStar Bank of its
security interest in Sardy's property in connection with the
Construction Loan Agreement, and any net proceeds from the
sale of Sardy Securities in excess of such required debt
repayment amount may be retained by the Holder.
Section 5. Indemnification and Contribution.
(a) Indemnification by Sardy. To the extent permitted by law,
Sardy shall indemnify and hold harmless the Holder, the officers,
managers, members, employees, representatives and agents of the Holder,
legal counsel and accountants for the Holder, any underwriter (as
defined in the Securities Act) for the Holder and each person, if any,
who controls the Holder or underwriter within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, against any
losses, claims, damages or liabilities (joint or several) to which they
may become subject under the Securities Act, the Exchange Act or any
other federal or state securities law, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or
are based on any of the following statements, omissions or violations
(collectively a "Violation"): (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement, including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto, (ii) the
omission or alleged omission to state therein a material fact required
to be stated therein, or necessary to make the statements therein not
misleading, or (iii) any violation or alleged violation by Sardy of the
Securities Act, the Exchange Act, any state securities law or any rule
or regulation promulgated under the Securities Act, the Exchange Act or
any state securities law; and Sardy shall reimburse the Holder or such
underwriter or controlling person for any legal or other expenses
reasonably incurred, as incurred, in connection with investigating or
defending any such loss, claim, damage, liability or action; provided
that the indemnity agreement in this Section 5(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability
or action if such settlement is effected without the consent of Sardy
(which consent shall not be unreasonably withheld or delayed), nor
shall Sardy be liable in any such case for any such loss, claim,
damage, liability or action to the extent that it arises out of or is
based on a Violation that occurs in reliance on and in conformity with
information furnished expressly for use in connection with such
registration by the Holder or such underwriter or controlling person.
(b) Indemnification by the Holder. To the extent permitted by
law, the Holder shall indemnify and hold harmless Sardy, each of its
managers and officers who sign the Registration Statement, the members,
employees, representatives and agents of Sardy, legal counsel and
accountants for Sardy, any underwriter, and any controlling person of
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Sardy or any such underwriter, against any losses, claims, damages or
liabilities to which any of the foregoing persons may become subject,
under the Securities Act, the Exchange Act or any other federal or
state securities law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
on any Violation, in each case to the extent (and only to the extent)
that such Violation occurs in reliance on and in conformity with
information furnished by the Holder expressly for use in connection
with such registration; and the Holder shall reimburse any person
intended to be indemnified pursuant to this Section 5(b) for any legal
or other expenses reasonably incurred, as incurred, by such person in
connection with investigating or defending any such loss, claim,
damage, liability or action; provided that the indemnity agreement in
this Section 5(b) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is
effected without the consent of the Holder (which consent shall not be
unreasonably withheld or delayed); and provided further that in no
event shall any indemnity by the Holder under this Section 5(b), when
aggregated with amounts contributed, if any, pursuant to Section 5(d),
exceed the net proceeds from the sale of Registrable Securities
hereunder received by the Holder after application of the net proceeds
pursuant to Section 4(b).
(c) Indemnifying Party Can Participate in Defense. Promptly
after receipt by an indemnified party under this Section 5 of notice of
the commencement of any action (including any governmental action),
such indemnified party shall, if a claim in respect thereof is to be
made against any indemnifying party under this Section 5, deliver to
the indemnifying party notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the
extent that the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof
with counsel mutually satisfactory to the parties; provided that an
indemnified party (together with all other indemnified parties that may
be represented without conflict by one counsel) shall have the right to
retain one separate counsel, with the reasonable fees and expenses
thereof to be paid by the indemnifying party, if representation of such
indemnified party by the counsel retained by the indemnifying party
would be inappropriate due to actual or potential differing interests
between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to notify the indemnifying
party within a reasonable time of the commencement of any such action,
if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this
Section 5, but the omission to so notify the indemnifying party will
not relieve it of any liability that it may have to any indemnified
party otherwise than under this Section 5.
(d) Contribution Where Indemnification Not Available. If the
indemnification provided in this Section 5 is held by a court of
competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, liability, claim, damage or expense referred to
herein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such loss, liability,
claim, damage or expense 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 that shall have resulted in such loss,
liability, claim, damage or expense, as
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well as any other relevant equitable considerations; provided that in
no event shall any contribution by the Holder under this Section 5(d),
when aggregated with amounts paid, if any, pursuant to Section 5(b),
exceed the net proceeds from the sale of Registrable Securities
hereunder received by the Holder after application of the net proceeds
pursuant to Section 4(b). The relative fault of the indemnifying party
and of the indemnified party shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a
material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified
party and the parties' relative intent, knowledge, access to
information, and opportunity to correct or prevent such statement or
omission.
(e) Underwriting Agreement Shall Control. Notwithstanding the
foregoing, to the extent that the provisions on indemnification and
contribution contained in any underwriting agreement entered into in
connection with the resale of the Registrable Securities are in
conflict with the foregoing provisions, the provisions in the
underwriting agreement shall control.
(f) Survival of Indemnification Obligations. The obligations
of Sardy and the Holder under this Section 5 shall survive the
completion of any offering of Registrable Securities in a Registration
Statement under this Agreement, and otherwise.
Section 6. Reports under Exchange Act. In order to enable the Holder to
utilize Rule 144 promulgated under the Securities Act and any other rule or
regulation of the SEC that may at any time permit the Holder to sell the Sardy
Securities to the public without registration (in the event that Rule 144 or
such other SEC rule or regulation is otherwise available to the Holder) or
pursuant to the Registration Statement, Sardy agrees to:
(a) Make and keep available adequate current public
information with respect to Sardy, as contemplated by Rule 144, at all
times after the effective date of the Registration Statement and
pursuant to the requirements of the Exchange Act;
(b) File with the SEC in a timely manner all reports and other
documents required of Sardy under the Securities Act and the Exchange
Act;
(c) Undertake any additional actions reasonably necessary to
maintain the availability of the Registration Statement or the use of
Rule 144.
Section 7. Assignment of Registration Rights. The rights to cause Sardy
to register Registrable Securities under this Agreement may be assigned (but
only with all related obligations) by the Holder to a transferee or assignee of
such Registrable Securities that:
(a) is a subsidiary, parent or member of the Holder; or
(b) is an entity controlling, controlled by or under common
control, or under common investment management, with the Holder,
including without limitation a corporation, partnership or limited
liability company that is a direct or indirect parent or subsidiary of
the Holder;
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provided that: (i) Sardy is, within a reasonable time after such transfer,
notified of the name and address of such transferee or assignee and the
Registrable Securities with respect to which such registration rights are being
assigned; (ii) such transferee or assignee agrees in writing to be bound by and
subject to the terms and conditions of this Agreement; and (iii) such assignment
shall be effective only if immediately following such transfer the further
disposition of such securities by the transferee or assignee is restricted under
the Securities Act.
Section 8. Specific Performance. Sardy hereby acknowledges and agrees
that irreparable harm would occur in the event any of the registration
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached, and that damages would be an
inadequate remedy for a breach of this Agreement. Therefore, Sardy agrees that
the Holder shall be entitled to specific relief hereunder, including, without
limitation, an order of specific performance of the terms and provisions of this
Agreement, in addition to any other remedy to which Holder may be entitled at
law or in equity. Any requirements for the securing or posting of any bond in
connection with obtaining any such remedy are hereby waived.
Section 9. Miscellaneous.
(a) Notices. All notices, consents, requests, instructions,
authorizations, approvals, waivers and other communications required or
permitted by this Agreement shall be in writing and shall be deemed
duly given to a party when (i) delivered to the appropriate address by
hand or by nationally recognized overnight courier service (costs
prepaid); (ii) sent by facsimile or e-mail with confirmation of
transmission by the transmitting equipment; or (iii) received or
rejected by the addressee, if sent by certified mail, return receipt
requested, in each case to the addresses, facsimile numbers or e-mail
addresses and marked to the attention of the person (by name or title)
designated in the Purchase Contract (or to such other address,
facsimile number, e-mail address or person as a party may designate by
notice to the other parties).
(b) Entire Agreement. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter hereof.
(c) Binding Effect. This Agreement shall inure to the benefit
of, and shall be binding upon, the parties hereto and their respective
successors and permitted assigns (including permitted transferees of
any Units of Registrable Securities). Nothing in this Agreement,
expressed or implied, is intended to confer on any person other than
the parties hereto or their respective successors and permitted assigns
any rights, remedies, obligations or liabilities under or by reason of
this Agreement.
(d) Assignment. No party may assign its rights or delegate its
obligations hereunder (whether voluntarily, involuntarily, or by
operation of law) without the prior written consent of the other party,
except as otherwise provided in Section 7 hereof. Any such attempted
assignment shall be null and void.
(e) Further Assurances. The parties agree that at any time and
from time to time, upon the written request of a party, the parties
will execute and deliver such further
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documents and do such further acts and things as reasonably requested
to effect the purposes of this Agreement.
(f) Amendments. This Agreement may be amended only by an
agreement in writing executed by each of the parties hereto.
(g) Waiver. The observance of any term of this Agreement may
be waived only with the written consent of the party to be bound by
such waiver. No failure on the part of a party to exercise any right or
remedy shall operate as a waiver thereof.
(h) Governing Law. This Agreement shall be governed by and
construed and interpreted in accordance with the laws of the State of
Colorado, without regard to any conflict of laws provisions thereof.
(i) Jurisdiction and Venue. The parties hereto agree that any
actions, suits or proceedings arising out of or relating to this
Agreement, the transactions contemplated hereby or any document
referred to herein shall be brought solely and exclusively in the
courts of the State of Colorado located in the City and County of
Denver, Colorado and/or the courts of The United States of America
located in the City and County of Denver, Colorado (and the parties
agree not to commence any action, suit or proceeding relating thereto
except in such courts), and further agree that service of any process,
summons, notice or document by U.S. registered mail to the respective
addresses referred to in Section 9(a) hereof shall be effective service
of process for any such action, suit or proceeding brought against any
party in any such court. The parties irrevocably and unconditionally
waive any objection to the laying of venue of any action, suit or
proceeding arising out of this Agreement or the transactions
contemplated hereby, in the courts of the State of Colorado or The
United States of America located in the City and County of Denver,
Colorado, and hereby further irrevocably and unconditionally waive and
agree not to plead or claim in any such court that any such action,
suit or proceeding brought in any such court has been brought in an
inconvenient forum.
(j) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable under applicable law,
the remainder of the terms, provisions, covenants and restrictions of
this Agreement shall remain in full force and effect and shall in no
way be affected, impaired or invalidated, and the term, provision,
covenant or restriction that is held to be invalid, void or
unenforceable shall be modified so that it accomplishes to the maximum
extent possible the original business purpose of such term, provision,
covenant or restriction in a valid and enforceable manner.
(k) Attorney Fees. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the
prevailing party shall be awarded and entitled to recover reasonable
attorney fees, costs and necessary disbursements in addition to any
other relief to which such party may be entitled.
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(l) Headings. The headings, subheadings and other captions of
this Agreement are for convenience and reference only and shall not be
used in interpreting, construing or enforcing any of the provisions of
this Agreement.
(m) Counterparts and Facsimile Signatures. This Agreement may
be executed in any number of counterparts, and signature pages may be
delivered by facsimile transmission.
[Signature page follows]
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IN WITNESS WHEREOF, this Registration Rights Agreement has been duly
executed on behalf of each of the parties hereto by their duly authorized
representatives on April 30, 2003, to be effective as of March 20, 2003.
SARDY:
SARDY HOUSE, LLC, a Colorado limited
liability company,
By: BLOCK 66, LLC, a Colorado limited
liability company, its Manager
By: /s/ XXXXX X. XXXXXX
------------------------------------
Xxxxx X. Xxxxxx, Manager
NASA:
NORTH AND SOUTH ASPEN, L.L.C.,
a Colorado limited liability company,
By: /s/ XXXXXX X. XXXXXX
------------------------------------
Xxxxxx X. Xxxxxx, Manager
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