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EXHIBIT 10.5
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT, dated as of May 27, 1999 (this
"Agreement"), is entered into by and between Urban Shopping Centers, Inc., a
Maryland corporation (the "Company"), and the unit holder whose name is set
forth on the signature page hereto ("Unit Holder").
RECITALS
WHEREAS, in connection with the offering of 800,000 Series C
Cumulative Convertible Redeemable Preferred Units (the "OP Units") of Urban
Shopping Centers, L.P., an Illinois limited partnership (the "Operating
Partnership"), Meadowbrook Equity Fund II, LLC, a New York limited liability
company (the "Contributor"), contributed to the Operating Partnership
$40,000,000 in return for the OP Units on terms and conditions set forth in the
Contribution Agreement dated the date of this Agreement (the "Contribution
Agreement"), between the Company and the Operating Partnership and the
Contributor;
WHEREAS, the Unit Holder will receive the OP Units in exchange for its
cash contribution to the Operating Partnership;
WHEREAS, pursuant to the Partnership Agreement (as defined below), the
OP Units owned by the Unit Holder will be redeemable for cash or exchangeable
for shares of the Company's Series C Cumulative Redeemable Preferred Stock (the
"Preferred Stock") upon the terms and subject to the conditions contained
therein; and
WHEREAS, in order to induce the Contributor to enter into the
Contribution Agreement, the Company has agreed to enter into this Agreement and
to provide registration rights set forth herein to the Contributor and any
subsequent holder or holders of the OP Units.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, and for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS.
In addition to the definitions set forth above, the following terms, as
used herein, shall have the following meanings:
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"Affiliate" of any Person means any other Person directly or
indirectly controlling or controlled by or under common control with such
Person. For the purposes of this definition, "control", when 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;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Amendment" means that certain Fifth Amendment to the Partnership
Agreement, dated as of May 27, 1999, between the Company and the Contributor.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in New York, New York are authorized by law to close.
"Charter" means the Company's charter, as the same may be amended,
modified, supplemented or restated from time to time.
"Commission" means the Securities and Exchange Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"General Partner" means the Company or its successors as general
partner of the Operating Partnership.
"Holder" means the Unit Holder and any Person who is the record or
beneficial owner of any Registrable Security or any permitted assignee or
permitted transferee of such Registrable Security (including assignments or
transfers of Registrable Securities to such assignees or transferees as a result
of the foreclosure on any loans secured by such Registrable Securities) unless
such Registrable Security is acquired in a public distribution pursuant to a
registration statement under the Securities Act or in a public distribution
pursuant to transactions exempt from registration under the Securities Act, in
each such case where securities sold in such transaction may be resold by
Persons who are not Affiliates of the Company in a public distribution without
subsequent registration under the Securities Act.
"Incapacitated" shall have the meaning set forth in the Partnership
Agreement.
"Indemnified Party" shall have the meaning set forth in Section 2.6
hereof.
"Indemnifying Party" shall have the meaning set forth in Section 2.6
hereof.
"Inspectors" shall have the meaning set forth in Section 2.2(g)
hereof.
"NASD" shall have the meaning set forth in Section 2.2(d) hereof.
"Partnership Agreement" means the Second Amended and Restated
Agreement of Limited Partnership of the Operating Partnership dated as of
October 14, 1993, as amended
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through the date hereof, including by the Amendment, and as the same may be
further amended, modified or restated from time to time.
"Person" means an individual or a corporation, partnership, limited
liability company, association, trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Registrable Securities" means shares of Preferred Stock at any time
owned, either of record or beneficially, by any Holder and no matter how
acquired (including, without limitation, shares of Preferred Stock issued or
issuable upon exchange of OP Units or issued or issuable by way of stock
dividend or stock split, or in connection with a merger, consolidation,
combination of shares, recapitalization or other reorganization and any other
securities issued pursuant to any other distribution with respect to the
Preferred Stock or in exchange for or replacement of such Preferred Stock) until
(i) a registration statement covering such shares has been declared effective by
the Commission and such shares have been sold or transferred pursuant to such
effective registration statement, (ii) such shares are permitted to be
distributed by Persons who are not Affiliates of the Company in a transaction
that would constitute a sale thereof under the Securities Act pursuant to Rule
144(k) or are otherwise freely transferable to the public by Persons who are not
Affiliates of the Company without registration pursuant to Section 4(1) of the
Securities Act under circumstances in which all of the applicable conditions of
Rule 144 are satisfied or (iii) such shares have been otherwise transferred
pursuant to an applicable exemption under the Securities Act, new certificates
for such shares not bearing a legend restricting further transfer shall have
been delivered by the Company and such shares shall be freely transferable to
the public by Person who are not Affiliates of the Company in a transaction that
would constitute a sale thereof without registration under the Securities Act.
"Registration Expenses" shall have the meaning set forth in Section
2.3 hereof.
"Rule 144" means Rule 144 promulgated under the Securities Act, as
such rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the Commission providing for offers and
sales of securities made in compliance therewith resulting in offers and sales
by subsequent holders of such securities that are not Affiliates of the Company
being free of the registration and prospectus delivery requirements of the
Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act, as
such rule may be amended from time to time, or any similar rule (other than Rule
144) or regulation hereafter adopted by the Commission.
"Rule 415" means Rule 415 promulgated under the Securities Act, as
such rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
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"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Selling Holder" means a Holder who is selling Registrable Securities
pursuant to a registration statement under the Securities Act pursuant to this
Agreement.
"Shelf Registration" shall have the meaning set forth in Section
2.1(a) hereof.
"Shelf Registration Statement" means any registration statement
relating to a Shelf Registration that covers any shares of Preferred Stock of
the Company filed with the Commission under the Securities Act, including the
prospectus, amendments and supplements to such registration statement, including
post-effective amendments, all exhibits and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
"Underwriter" means a securities dealer who purchases any Registrable
Securities as principal and not as part of such dealer's market-making
activities.
"Unit Holder(s)" shall have the meaning set forth in the introductory
paragraphs hereto and shall include any successors, transferees or assigns
permitted under the Amendment other than pursuant to an effective registration
statement or Rule 144.
ARTICLE II
REGISTRATION RIGHTS
SECTION 2.1. SHELF REGISTRATION.
(a) At any time (and from time to time) when OP Units
representing in the aggregate 25% or more of the OP Units issued in accordance
with the Contribution Agreement are exchanged for shares of Preferred Stock, the
Company shall prepare and file a Shelf Registration Statement with respect to
such Registrable Securities covering the resale thereof by the Holders on an
appropriate form for an offering to be made on a continuous or delayed basis
pursuant to Rule 415 (the "Shelf Registration") within 60 days after the date
such OP Units are exchanged for shares of Preferred Stock and shall use its
reasonable best efforts to cause such Shelf Registration Statement to be
declared effective as promptly as practicable. The Company shall use its
reasonable best efforts to keep such Shelf Registration Statement continuously
effective with respect to such Registrable Securities until the earlier of (A)
24 months following the date the Company files such Shelf Registration Statement
and (B) such time as all of the Registrable Securities that are the subject of
such Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement or Rule 144 or are no longer Registrable Securities.
(b) In lieu of the Shelf Registrations set forth in Section
2.1(a), the Company may, at the Company's option, to the extent permitted by
applicable law, rules and regulations, upon the first exchange of OP Units for
shares of Preferred Stock, prepare and file a Shelf Registration Statement with
respect to all Registrable Securities (i) issued in
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exchange for OP Units and (ii) thereafter issuable in exchange for OP Units, and
covering the resale thereof by the Holders on an appropriate form for an
offering to be made on a continuous or delayed basis pursuant to Rule 415 within
60 days after the date OP Units are first exchanged for shares of Preferred
Stock and shall use its reasonable best efforts to cause such Shelf Registration
Statement to be declared effective as promptly as practicable. The Company shall
use its reasonable best efforts to keep such Shelf Registration Statement
continuously effective with respect to all such Registrable Securities
theretofore or thereafter issued until the earlier of (A) 36 months following
the date the Company files such Shelf Registration Statement and (B) such time
as all such Registrable Securities that are the subject of such Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement or Rule 144 or are no longer Registrable Securities.
SECTION 2.2. REGISTRATION PROCEDURES; FILINGS; INFORMATION.
In connection with any Shelf Registration Statement under Section 2.1
hereof, the Company shall use its reasonable best efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method or methods of disposition thereof as expeditiously as possible
(and in any event within the periods referred to in Section 2.1), and in
connection with any such request:
(a) As provided in Section 2.1 hereof, the Company shall
prepare and file with the Commission a registration statement on any form for
which the Company then qualifies or that counsel for the Company shall deem
appropriate and which form shall be available for the sale by the Selling
Holders of the Registrable Securities to be registered thereunder in accordance
with the intended method of distribution thereof and that shall comply as to
form in all material respects with the requirements of the applicable form and
include or incorporate by reference all financial statements required by the
Commission to be filed therewith, and use its reasonable best efforts to cause
such filed registration statement to become and remain effective for the period
specified elsewhere herein.
(b) The Company shall, if requested, prior to filing a
registration statement or prospectus or any amendment or supplement thereto,
notify each Holder of Registrable Securities that a Shelf Registration Statement
is being filed and advise such Holder that an offering of Registrable Securities
will be made in accordance with the method or methods elected (which method may
also include an underwritten offering by a nationally recognized Underwriter
selected by the Company and reasonably acceptable to the electing Holders) by
the Holders of a majority of the Registrable Securities, furnish to each Selling
Holder and each Underwriter, if any, of the Registrable Securities covered by
such registration statement or prospectus copies of such registration statement
or prospectus or any amendment or supplement thereto as proposed to be filed,
and thereafter furnish to such Selling Holder and Underwriter, if any, such
number of conformed copies of such registration statement, each amendment and
supplement thereto (in each case including all exhibits thereto and documents
incorporated by reference therein), the prospectus included in such registration
statement (including each preliminary prospectus) and such other documents as
such Selling Holder or Underwriter may reasonably request in order to facilitate
the disposition of the Registrable Securities owned by such Selling Holder.
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(c) The Company shall notify each Holder of Registrable
Securities and counsel for such Holder promptly and, if requested by such Holder
or counsel, confirm such advice in writing promptly (i) when a registration
statement has become effective and when any post-effective amendments and
supplements thereto become effective, (ii) of any request by the Commission or
any state securities authority for post-effective amendments and supplements to
a registration statement that has become effective, (iii) of the issuance by the
Commission or any state securities authority of any stop order suspending the
effectiveness of a registration statement or the initiation of any proceedings
for that purpose, (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registrable Securities for
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose, and (v) of any determination by the Company that a post-effective
amendment to a registration statement would be appropriate.
(d) The Company shall use its reasonable best efforts to (i)
register or qualify the Registrable Securities under such other securities or
blue sky laws of such jurisdictions in the United States (where an exemption is
not available) as any Selling Holder or managing Underwriter or Underwriters, if
any, reasonably (in light of such Selling Holder's intended plan of
distribution) requests by the time the registration statement relating thereto
is declared effective by the Commission and (ii) cause such Registrable
Securities to be registered with or approved by such other governmental agencies
or authorities, including the National Association of Securities Dealers
("NASD"), as may be necessary by virtue of the business and operations of the
Company and do any and all other acts and things that may be reasonably
necessary or advisable to enable such Selling Holder to consummate the
disposition of the Registrable Securities owned by such Selling Holder; provided
that the Company will not be required to (A) qualify generally to do business in
any jurisdiction where it would not otherwise be required to qualify but for
this paragraph (d), (B) subject itself to taxation in any such jurisdiction or
(C) consent to general service of process in any such jurisdiction except as may
be required by the Securities Act.
(e) The Company shall promptly notify each Selling Holder or
Underwriter of such Registrable Securities, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of the
occurrence of an event requiring the preparation of a supplement or amendment to
such prospectus and shall file with the Commission such amendments and
supplements to such prospectus and deliver copies of the same to the Selling
Holders or Underwriters, as the case may be, so that as thereafter delivered to
the purchasers of such Registrable Securities, such 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 in order to make the statements
therein, in the light of the circumstances under which they are made, not
misleading and promptly make available to each Selling Holder a reasonable
number of copies of any such supplement or amendment.
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(f) The Company shall enter into customary agreements
(including an underwriting agreement or securities sale agreement, if any, in
customary form) containing such representations and warranties to the Holders of
such Registrable Securities and the Underwriters, if any, in form, substance and
scope as are customarily made by issuers to underwriters in similar underwritten
offerings as may be reasonably requested by them and take such other actions as
are reasonably required in order to expedite or facilitate the disposition of
such Registrable Securities.
(g) The Company shall make available for inspection by any
Selling Holder of such Registrable Securities, any Underwriter participating in
any disposition pursuant to such registration statement and any attorney,
accountant or other professional retained by any such Selling Holder or
Underwriter (collectively, the "Inspectors"), all financial and other records,
pertinent corporate documents and properties of the Company (collectively, the
"Records") as shall be reasonably necessary to enable them to exercise their due
diligence responsibility, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any Inspectors in
connection with such registration statement. Records that the Company
determines, in good faith, to be confidential and that it notifies the
Inspectors are confidential shall not be disclosed by the Inspectors unless (i)
the disclosure of such Records is necessary to avoid or correct a misstatement
or omission in such registration statement or (ii) the release of such Records
is ordered pursuant to a subpoena or other order from a court of competent
jurisdiction. Each Selling Holder of such Registrable Securities agrees that
information obtained by it as a result of such inspections shall be deemed
confidential and shall not be used by it as the basis for any market
transactions in the securities of the Company or its Affiliates or otherwise
disclosed by it unless and until such is made generally available to the public.
Each Selling Holder of such Registrable Securities further agrees that it will,
upon learning that disclosure of such Records is sought in a court of competent
jurisdiction, give notice to the Company and allow the Company, at its expense,
to undertake appropriate action to prevent disclosure of the Records deemed
confidential.
(h) The Company shall furnish to each Selling Holder and to
each Underwriter, if any, a signed counterpart, addressed to such Selling Holder
or Underwriter, of (i) an opinion or opinions of counsel to the Company and (ii)
a comfort letter or comfort letters from the Company's independent public
accountants (to the extent permitted by the standards of the American Institute
of Certified Public Accountants), each in customary form and covering such
matters of the type customarily covered by opinions or comfort letters, as the
case may be, as the Holders of a majority of the Registrable Securities included
in such offering or the managing Underwriter or Underwriters therefor reasonably
request.
(i) The Company shall otherwise use its reasonable best
efforts to comply with all applicable rules and regulations of the Commission
and make available to its securityholders, as soon as reasonably practicable, an
earnings statement covering a period of twelve (12) months, beginning within
three (3) months after the effective date of the registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of
the Securities Act and Rule 158 of the Commission promulgated thereunder (or any
successor rule or regulation hereafter adopted by the Commission).
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(j) The Company shall use its reasonable best efforts to cause
all such Registrable Securities to be listed on each securities exchange on
which similar securities issued by the Company are then listed.
(k) The Company shall use its reasonable best efforts to
obtain a CUSIP number for the Preferred Stock not later than the effective date
of the Shelf Registration Statement.
The Company may require, as a condition precedent to the obligations
of the Company under this Agreement, each Selling Holder of Registrable
Securities to promptly furnish in writing to the Company such information
regarding such Selling Holder, the Registrable Securities held by it and the
intended method of distribution of the Registrable Securities as the Company may
from time to time reasonably request and such other information as may be
legally required in connection with such registration.
Each Selling Holder agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 2.2(e)
hereof, such Selling Holder will forthwith discontinue disposition of
Registrable Securities pursuant to the registration statement and prospectus
covering such Registrable Securities until such Selling Holder's receipt of the
copies of the supplemented or amended prospectus contemplated by Section 2.2(e)
hereof, and, if so directed by the Company, such Selling Holder will deliver to
the Company all copies, other than permanent file copies then in such Selling
Holder's possession, of the most recent prospectus covering such Registrable
Securities at the time of receipt of such notice. Each Selling Holder of
Registrable Securities agrees that it will immediately notify the Company at any
time when a prospectus relating to the registration of such Registrable
Securities is required to be delivered under the Securities Act, of the
happening of an event as a result of which information previously furnished by
such Selling Holder to the Company in writing for inclusion in such prospectus
contains an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading. If
the Company shall give such notice, the Company shall extend the period during
which such registration statement shall be maintained effective (including the
periods referred to in Section 2.1 hereof) by the number of days during the
period from and including the date of the giving of notice pursuant to Section
2.2(e) hereof to the date when the Company shall make available to the Selling
Holders of Registrable Securities covered by such registration statement a
prospectus supplemented or amended to conform with the requirements of Section
2.2(e) hereof.
SECTION 2.3. REGISTRATION EXPENSES.
In connection with any registration statement required to be filed
hereunder, the Company shall pay the following registration expenses incurred in
connection with the registration hereunder (the "Registration Expenses"): (i)
all Commission, stock exchange, NASD or other registration and filing fees, (ii)
fees and expenses of compliance with securities or blue sky laws and compliance
with the rules of the NASD, (iii) printing expenses
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of any Persons in preparing and distributing any Shelf Registration Statement,
any prospectus, any amendments or supplements thereto, certificates representing
the Preferred Stock and any other document relating to the performance of, and
compliance with, this Agreement, (iv) internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), (v) the fees and expenses incurred in connection
with the listing of the Registrable Securities on any securities exchange, (vi)
reasonable fees and disbursements of counsel for the Company and customary fees
and expenses for independent certified public accountants retained by the
Company (including the expenses of any special audits or comfort letters or
costs associated with compliance with such special audits or with the delivery
by independent certified public accountants of a comfort letter or comfort
letters requested pursuant to Section 2.2(h) hereof, and (vii) the reasonable
fees and expenses of any special experts retained by the Company in connection
with such registration. The Company shall have no obligation to pay any
underwriting fees, discounts or commissions attributable to the sale of
Registrable Securities, or any out-of-pocket expenses of the Holders (or the
agents who manage their accounts) or any transfer taxes relating to the
registration or sale of the Registrable Securities.
SECTION 2.4. INDEMNIFICATION BY THE COMPANY.
The Company agrees to indemnify and hold harmless each Selling Holder
of Registrable Securities, its officers, directors and agents, and each Person,
if any, who controls such Selling Holder within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages, expenses and liabilities caused by any untrue statement
or alleged untrue statement of a material fact contained in any registration
statement or prospectus relating to the Registrable Securities (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) or any preliminary prospectus, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except insofar as such losses,
claims, damages or liabilities are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information
furnished in writing to the Company by such Selling Holder or on such Selling
Holder's behalf expressly for inclusion therein.
SECTION 2.5. INDEMNIFICATION BY HOLDERS OF REGISTRABLE SECURITIES.
Each Selling Holder agrees, severally but not jointly, to indemnify and
hold harmless the Company, its officers, directors and agents and each Person,
if any, who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to such Selling Holder, but only with
respect to information relating to such Selling Holder furnished in writing by
such Selling Holder or on such Selling Holder's behalf expressly for use in any
registration statement or prospectus relating to the Registrable Securities, or
any amendment or supplement thereto, or any preliminary prospectus. In case any
action or proceeding shall be brought against the Company or its officers,
directors or agents or any such controlling
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Person, in respect of which indemnity may be sought against such Selling Holder,
such Selling Holder shall have the rights and duties given to the Company, and
the Company or its officers, directors or agents or such controlling Person
shall have the rights and duties given to such Selling Holder, by Section 2.4
hereof.
SECTION 2.6. CONDUCT OF INDEMNIFICATION PROCEEDINGS.
In case any proceeding (including any governmental investigation) shall
be instituted involving any Person in respect of which indemnity may be sought
pursuant to Sections 2.4 or 2.5 hereof, such Person (an "Indemnified Party")
shall, as promptly as reasonably practicable, notify the person against whom
such indemnity may be sought (an "Indemnifying Party") in writing and the
Indemnifying Party shall assume the defense thereof, including the employment of
counsel reasonably satisfactory to such Indemnified Party, and shall assume the
payment of all fees and expenses. In any such proceeding, any Indemnified Party
shall have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Party unless (i) the
Indemnifying Party and the Indemnified Party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the Indemnified Party and the
Indemnifying Party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. It
is understood that the Indemnifying Party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) at any time for all such Indemnified Parties, and
that all such fees and expenses shall be reimbursed as they are incurred. In the
case of any such separate firm for the Indemnified Parties, such firm shall be
designated in writing (i) in the case of Persons indemnified pursuant to Section
2.4 hereof, by the Selling Holders that owned a majority of the Registrable
Securities sold under the applicable registration statement and (ii) in the case
of Persons indemnified pursuant to Section 2.5 hereof, by the Company. The
Indemnifying Party shall not be liable for any settlement of any proceeding
effected without its written consent but, if settled with such consent, or if
there shall be a final judgment for the plaintiff, the Indemnifying Party shall
indemnify and hold harmless such Indemnified Parties from and against any loss
or liability (to the extent stated above) by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified
Party shall have requested an Indemnifying Party to reimburse the Indemnified
Party for fees and expenses of counsel as contemplated by the third sentence of
this paragraph, the Indemnifying Party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than thirty (30) Business Days after receipt by
such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party
shall not have responded to such request (or, if such Indemnifying Party shall
have responded, the same shall be contesting in good faith any portion of the
requested reimbursement) and (iii) such Indemnifying Party shall not have
reimbursed the Indemnified Party for the uncontested fees and expenses of
counsel in accordance with such request prior to the date of such settlement. No
Indemnifying Party shall, without the prior written consent of the Indemnified
Party, effect any settlement of any
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pending or threatened proceeding in which any Indemnified Party is or could have
been a party and indemnity could have been sought hereunder by such Indemnified
Party, unless such settlement includes an unconditional release of such
Indemnified Party from all liability arising out of such proceeding.
SECTION 2.7. CONTRIBUTION.
If the indemnification provided for in Section 2.4 or 2.5 hereof is
unavailable to an Indemnified Party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each such Indemnifying
Party, in lieu of indemnifying such Indemnified Party, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such losses,
claims, damages or liabilities as is appropriate to reflect the relative
benefits received by the parties, or if such allocation is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits but also the relative fault of the parties, as well as any
other relevant equitable considerations. The relative fault 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 Indemnified Party or the
Indemnifying Party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Selling Holders agree that it would not be just
and equitable if contribution pursuant to this Section 2.7 were determined by
pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Party as a result of the
losses, claims, damages or liabilities referred to in Sections 2.4 and 2.5
hereof shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending any such action or claim. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Selling Holder's
obligations to contribute pursuant to this Section 2.7 are several in the
proportion that the proceeds of the offering received by such Selling Holder
bears to the total proceeds of the offering received by all the Selling Holders
and not joint.
SECTION 2.8. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
No Person may participate in any underwritten registration hereunder
unless such Person (a) agrees to sell such Person's securities on the basis
provided in any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents in customary form and reasonably required under the terms of
such underwriting arrangements and these registration rights provided for in
this Article II.
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SECTION 2.9. RULE 144.
The Company shall use its reasonable best efforts to file any reports
required to be filed by it under the Securities Act and the Exchange Act and
shall use its reasonable best efforts to take such further action as any Holder
may reasonably request, all to the extent required from time to time to enable
Holders to sell Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by (a) Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or (b) any
similar rule or regulation hereafter adopted by the Commission. Upon the request
of any Holder, the Company will deliver to such Holder a written statement as to
whether it has complied with such requirements.
SECTION 2.10. HOLDBACK AGREEMENT.
(a) If the Board of Directors of the Company determines in its
good faith judgment that the filing of the Shelf Registration Statement under
Section 2.1 hereof or the use of any related prospectus would require the
disclosure of non-public material information that the Company has a bona fide
business purpose for preserving as confidential or the disclosure of which would
impede the Company's ability to consummate a material transaction, and that the
Company is not otherwise required by applicable securities laws or regulations
to disclose, upon written notice of such determination by the Board of Directors
of the Company, the rights of the Holders to offer, sell or distribute any
Registrable Securities pursuant to the Shelf Registration Statement or to
require the Company to take action with respect to the registration or sale of
any Registrable Securities pursuant to the Shelf Registration Statement shall be
suspended until the earlier of (i) the date upon which the Company notifies the
Holders in writing that suspension of such rights for the grounds set forth in
this Section 2.10(a) is no longer necessary and (ii) 60 days; provided however,
the aggregate number of days in any consecutive twelve (12) month period during
which such suspension or suspensions shall continue shall not exceed 120 days.
The Company agrees to give such notice as promptly as practicable following the
date that such suspension of rights is no longer necessary.
(b) The Company shall extend the period during which a
registration statement shall be maintained effective (including the periods
referred to in Section 2.1 hereof) by the number of days of suspension pursuant
to Section 2.10(a).
ARTICLE III
MISCELLANEOUS
SECTION 3.1. REMEDIES.
In addition to being entitled to exercise all rights provided herein
and granted by law, including recovery of damages, the Holders shall be entitled
to specific performance of the rights under this Agreement. The Company agrees
that monetary damages would not be adequate compensation for any loss incurred
by reason of a breach by it of the provisions of this Agreement and hereby
agrees to waive the defense in any action for specific performance that a remedy
at law would be adequate.
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SECTION 3.2. AMENDMENTS AND WAIVERS.
The provisions of this Agreement, including the provisions of this
sentence, may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given without the prior
written consent of the Company and the Holders or any such Holder's
representative if any such Holder is Incapacitated. No failure or delay by any
party to insist upon the strict performance of any covenant, duty, agreement or
condition of this Agreement or to exercise any right or remedy consequent upon
any breach thereof shall constitute a waiver of any such breach or any other
covenant, duty, agreement or condition.
SECTION 3.3. NOTICE. All notices and other communications in
connection with this Agreement shall be made in writing by hand delivery,
registered first-class mail, telex, telecopier or air courier guaranteeing
overnight delivery. All notices and other communications required or permitted
to be given hereunder shall be in writing and shall be deemed to have been duly
given if personally delivered, delivered by nationally recognized overnight
courier with proof of delivery thereof, sent by U.S. registered or certified
mail (postage prepaid, return receipt requested) addressed as hereinafter
provided or via telephonic facsimile transmission with proof of delivery in the
form of a telecopier's transmission confirmation report. Notice shall be sent
and deemed given (a) if personally delivered or via nationally recognized
overnight courier, then upon receipt by the receiving party, or (b) if mailed,
then three (3) days after being postmarked, or (c) if sent via telephonic
facsimile transmission, then at the time set forth in the telecopier's
transmission confirmation report.
Any party listed below may change its address hereunder by notice to
the other party listed below. Until further notice, notice and other
communications hereunder shall be addressed to the parties listed below as
follows:
(1) if to any Unit Holder:
Meadowbrook Equity Fund II, LLC
c/o Bessemer Trust Company N.A.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. XxxXxxxxx
Facsimile Number: (000) 000-0000
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(2) if to the Company or the Operating Partnership:
Urban Shopping Centers, Inc.
000 X. Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Chief Financial Officer
Facsimile Number: (000) 000-0000
With copies to:
Urban Shopping Centers, Inc.
000 X. Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: General Counsel
Facsimile Number: (000) 000-0000
And to:
Xxxxx, Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq.
Fax: (000) 000-0000
SECTION 3.4. SUCCESSORS AND ASSIGNS.
The rights and obligations of any Holder hereunder may be assigned to
any other Holder. Except as expressly provided in this Agreement, the rights and
obligations of the Holders under this Agreement shall not be assignable by any
Holder to any Person that is not a Holder. This Agreement shall be binding upon
the parties hereto and their respective successors and assigns.
SECTION 3.5. COUNTERPARTS; FACSIMILE SIGNATURES.
This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement. Each party shall become bound by this Agreement
immediately upon affixing its signature hereto, which may be an original
signature or facsimile thereof.
SECTION 3.6. GOVERNING LAW
This Agreement shall be interpreted and enforced according to the
internal laws of the State of New York.
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SECTION 3.7. SEVERABILITY.
In the event that any one or more of the provisions contained herein,
or the application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.
SECTION 3.8. ENTIRE AGREEMENT.
This Agreement is intended by the parties as a final expression of
their agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein with respect to
the registration rights granted by the Company with respect to the Registrable
Securities. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
SECTION 3.9. HEADINGS.
The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
SECTION 3.10. NO THIRD PARTY BENEFICIARIES.
Nothing express or implied herein is intended or shall be construed to
confer upon any person or entity, other than the parties hereto and their
respective successors and assigns, any rights, remedies or other benefits under
or by reason of this Agreement.
(Signature Page Follows)
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date above written.
URBAN SHOPPING CENTERS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
MEADOWBROOK EQUITY FUND II, LLC
By: Bessemer Trust Company N.A.,
as its Manager
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Executive Vice President
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