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EXHIBIT 4.7
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of June 10, 1998 between EOP OPERATING LIMITED PARTNERSHIP, a
Delaware limited partnership (the "Company"), and the Initial Purchasers (as
hereinafter defined).
This Agreement is made pursuant to the Purchase Agreement dated June
10, 1998 (the "Purchase Agreement"), between the Company, as issuer of the
6.763% Notes due 2007 (the "Notes") and Warrants to purchase 6.763% Notes due
2008 (the "Warrants"), and the Initial Purchasers, which provides for, among
other things, the sale by the Company to the Initial Purchasers of the aggregate
principal amount of Notes and number of Warrants specified therein. In order to
induce the Initial Purchasers to enter into the Purchase Agreement, the Company
has agreed to provide to the Initial Purchasers and their direct and indirect
transferees the registration rights set forth in this Agreement. The execution
and delivery of this Agreement is a condition to the closing under the Purchase
Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"Advice" shall have the meaning set forth in the last paragraph of Section 3
hereof.
"Affiliate" has the same meaning as given to that term in Rule 405 under the
Securities Act or any successor rule thereunder.
"Applicable Period" shall have the meaning set forth in Section 3(u) hereof.
"Business Day" means any day other than a Saturday, a Sunday, or a day on
which banking institutions in New York, New York or Boston, Massachusetts are
authorized or required by law or executive order to remain closed.
"Closing Time" shall mean the Closing Time as defined in the Purchase
Agreement.
"Company" shall have the meaning set forth in the preamble to this Agreement
and also includes the Company's successors and permitted assigns.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company; provided, however, that such depositary
must have an address in the Borough of Manhattan, in The City of New York.
"Effectiveness Period" shall have the meaning set forth in Section 2(b)
hereof.
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"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"Exchange Offer" shall mean the offer by the Company to the Holders to
exchange all of the Registrable Notes and Registrable Warrants for a like amount
of Exchange Notes and Exchange Warrants pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the Securities
Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form), and all amendments and supplements to such registration statement, in
each case including the Prospectus contained therein, all exhibits thereto and
all documents incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section 2(a) hereof.
"Exchange Notes" shall mean the 6.763% Notes due 2007 containing terms
identical to the Notes (except that they will not contain terms with respect to
the transfer restrictions under the Securities Act and will not provide for any
Liquidated Damages thereon).
"Exchange Warrants" shall mean the Warrants to purchase the 6.763% Notes due
2008 containing terms identical to the Warrants (except that they will not
contain terms with respect to the transfer restrictions under the Securities
Act).
"Exercise Date" shall mean the date upon which Warrants may be exchanged for
the Underlying Notes in accordance with the terms of such Warrants.
"Holder" shall mean any Initial Purchaser, for so long as it owns any
Registrable Notes or Registrable Warrants, and each of its respective
successors, assigns and direct and indirect transferees who become registered
owners of Registrable Notes under the Indenture, or Registrable Warrants under
the Warrant Agreement, as the case may be.
"Indenture" shall mean the Indenture, dated as of September 2, 1997, as
amended or supplemented to the date hereof, between the Company, as issuer, and
State Street Bank and Trust Company, as trustee, as the same may be further
amended or supplemented from time to time in accordance with the terms thereof.
"Initial Purchasers" shall mean Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx"), Xxxxxxx, Xxxxx & Co. ("Xxxxxxx,
Sachs"), X.X. Xxxxxx Securities Inc. ("X.X. Xxxxxx") and NationsBanc Xxxxxxxxxx
Securities LLC ("NationsBanc").
"Inspectors" shall have the meaning set forth in Section 3(o) hereof.
"Issue Date" shall mean June 15, 1998, the date of delivery of the Notes and
Warrants from the Company to the Initial Purchasers.
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"Issuer" shall mean the Company as defined in the preamble hereto.
"Liquidated Damages" shall have the meaning set forth in Section 2(e)
hereof.
"Majority Holders" shall mean, as the context requires, the Holders of a
majority of the aggregate principal amount of outstanding Notes and Exchange
Notes or the Holders of a majority of the outstanding number of Warrants and
Exchange Warrants.
"Notes" shall have the meaning set forth in the preamble to this Agreement.
"Participating Broker-Dealer" shall have the meaning set forth in Section
3(u) hereof.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, limited liability corporation, or a government or
agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration Statement,
including any preliminary prospectus, and any such prospectus as amended or
supplemented by any prospectus supplement, including a prospectus supplement
with respect to the terms of the offering of any portion of the Registrable
Notes or Registrable Warrants covered by a Shelf Registration Statement, and by
all other amendments and supplements to a prospectus, including post-effective
amendments, and in each case including all documents incorporated by reference
therein.
"Purchase Agreement" shall have the meaning set forth in the preamble to
this Agreement.
"Records" shall have the meaning set forth in Section 3(o) hereof.
"Registrable Notes" shall mean the Notes; provided, however, that Notes
shall cease to be Registrable Notes when the earlier of the following occurs:
(i) a Registration Statement with respect to such Notes for the exchange or
resale thereof shall have been declared effective under the Securities Act and
such Notes shall have been disposed of pursuant to such Registration Statement,
(ii) such Notes shall have been sold to the public pursuant to Rule 144(k) (or
any similar provision then in force, but not Rule 144A) under the Securities Act
or are eligible to be sold without restriction as contemplated by Rule 144(k),
(iii) such Notes shall have ceased to be outstanding or (iv) no Shelf
Registration Event has occurred and the Exchange Offer has concluded in
accordance with the provisions hereof.
"Registrable Warrants" shall mean the Warrants; provided, however, that
Warrants shall cease to be Registrable Warrants when the earlier of the
following occurs: (i) a Registration Statement with respect to such Warrants for
the exchange or resale thereof shall have been declared effective under the
Securities Act and such Warrants shall have been disposed of pursuant to such
Registration Statement, (ii) such Warrants shall have been sold to the public
pursuant to Rule 144(k) (or any similar provision then in force, but not Rule
144A) under the Securities Act or are eligible to be sold without restriction as
contemplated by Rule 144(k), (iii)
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such Warrants shall have ceased to be outstanding or (iv) no Shelf Registration
Event has occurred and the Exchange Offer has concluded in accordance with the
provisions hereof.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC or National Association of Securities Dealers,
Inc. (the "NASD") registration and filing fees, including, if applicable, the
fees and expenses of any "qualified independent underwriter" (and its counsel)
that is required to be retained by any Holder of Registrable Notes or
Registrable Warrants in accordance with the rules and regulations of the NASD,
(ii) all fees and expenses incurred in connection with compliance with state
securities or blue sky laws (including reasonable fees and disbursements of one
counsel for all underwriters or Holders as a group in connection with blue sky
qualification of any of the Exchange Notes, Exchange Warrants, Registrable
Notes, or Registrable Warrants) and compliance with the rules of the NASD, (iii)
all expenses of any Persons in preparing or assisting in preparing, word
processing, printing and distributing any Registration Statement, any Prospectus
and any amendments or supplements thereto, and in preparing or assisting in
preparing, printing and distributing any underwriting agreements, securities
sales agreements and other documents relating to the performance of and
compliance with this Agreement, (iv) all rating agency fees, (v) the fees and
disbursements of counsel for the Company and of the independent certified public
accountants of the Company, including the expenses of any "cold comfort" letters
required by or incident to the performance of and compliance with this
Agreement, (vi) the reasonable fees and expenses of the Trustee, the Warrant
Agent, and their counsel and any exchange agent or custodian, and (vii) the
reasonable fees and expenses of any special experts retained by the Company in
connection with any Registration Statement.
"Registration Statement" shall mean any registration statement of the
Company which covers any of the Exchange Notes, Exchange Warrants, Registrable
Notes or Registrable Warrants pursuant to the provisions of this Agreement, and
all amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all documents incorporated by reference
therein.
"Rule 144(k) Period" shall mean the period of two years (or such shorter
period as may hereafter be referred to in Rule 144(k) under the Securities Act
(or similar successor rule)) commencing on the Issue Date.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended from time
to time.
"Shelf Registration" shall mean a registration effected pursuant to Section
2(b) hereof.
"Shelf Registration Event" shall have the meaning set forth in Section 2(b)
hereof.
"Shelf Registration Event Date" shall have the meaning set forth in Section
2(b) hereof.
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"Shelf Registration Statement" shall mean a "shelf" registration statement
of the Company pursuant to the provisions of Section 2(b) hereof which covers
all of the Registrable Notes and Registrable Warrants on an appropriate form
under Rule 415 under the Securities Act, or any similar rule that may be adopted
by the SEC, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all documents incorporated by
reference therein.
"TIA" shall have the meaning set forth in Section 3(l) hereof.
"Trustee" shall mean the trustee under the Indenture.
"Underlying Notes" shall mean the 6.763% Notes due 2008 which are
purchasable upon exercise of the Warrants.
"Warrant Agent" shall mean the Debt Warrant Agent under the Warrant
Agreement.
"Warrant Agreement" shall mean the Warrant Agreement, dated as of June 15,
1998, between the Company, as issuer, and State Street Bank and Trust company,
as warrant agent, as the same may be amended or supplemented from time to time
in accordance with the terms thereof.
"Warrants" shall have the meaning set forth in the preamble to this
Agreement.
2. Registration Under the Securities Act.
(a.) Exchange Offer. Except as set forth in Section 2(b) below, the
Company shall, for the benefit of the Holders, at the Company's cost, use its
reasonable best efforts to (i) cause to be filed with the SEC within 60 calendar
days after the Issue Date an Exchange Offer Registration Statement on an
appropriate form under the Securities Act relating to the Exchange Offer, (ii)
cause such Exchange Offer Registration Statement to be declared effective under
the Securities Act by the SEC not later than the date which is 135 calendar days
after the Issue Date, (iii) keep such Exchange Offer Registration Statement
effective for not less than 30 calendar days (or longer if required by
applicable law) after the date notice of the Exchange Offer is mailed to the
Holders and (iv) cause the Exchange Offer to be consummated within 180 calendar
days after the Issue Date. Promptly after the effectiveness of the Exchange
Offer Registration Statement, the Company shall commence the Exchange Offer, it
being the objective of such Exchange Offer to enable each Holder eligible and
electing to exchange Registrable Notes and Registrable Warrants for a like
principal amount or number of Exchange Notes and Exchange Warrants, respectively
(provided that such Holder (i) is not an Affiliate of the Company, (ii) is not a
broker-dealer tendering Registrable Notes or Registrable Warrants acquired
directly from the Company, (iii) acquires the Exchange Notes or the Exchange
Warrants, as applicable, in the ordinary course of such Holder's business and
(iv) has no arrangements or understandings with any Person to participate in the
Exchange Offer for the purpose of distributing the Exchange
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Notes or Exchange Warrants) to transfer such Exchange Notes and / or such
Exchange Warrants from and after their receipt without any limitations or
restrictions under the Securities Act and under state securities or blue sky
laws.
In connection with the Exchange Offer, the Company shall:
(i.) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter of
transmittal and related documents;
(ii.) keep the Exchange Offer open for acceptance for a period of not less
than 30 days after the date notice thereof is mailed to the Holders (or longer
if required by applicable law) (such period referred to herein as the "Exchange
Period");
(iii.) utilize the services of the Depositary for the Exchange Offer with
respect to Notes and Warrants represented by a global certificate;
(iv.) permit Holders to withdraw tendered Notes and Warrants at any time
prior to the close of business, New York City time, on the last Business Day of
the Exchange Period, by sending to the institution specified in the notice to
Holders, a telegram, telex, facsimile transmission or letter setting forth the
name of such Holder, the series and amount of Notes and / or Warrants delivered
for exchange, and a statement that such Holder is withdrawing his election to
have such Notes and / or Warrants exchanged;
(v.) notify each Holder that any Note or Warrant not tendered by such Holder
in the Exchange Offer will remain outstanding and continue to accrue interest
but will not retain any rights under this Agreement (except in the case of the
Initial Purchasers and Participating Broker-Dealers as provided herein); and
(vi.) otherwise comply in all respects with all applicable laws relating to
the Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the
Company shall:
(i) accept for exchange all Notes and Warrants or portions thereof tendered
and not validly withdrawn pursuant to the Exchange Offer;
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all
Notes and Warrants or portions thereof so accepted for exchange by the Company;
and
(iii) issue, and cause the Trustee under the Indenture and Warrant Agent
under the Warrant Agreement, as the case may be, to promptly authenticate and
deliver to each Holder, Exchange Notes of the same series equal in principal
amount to the principal amount of the Notes as are surrendered by such Holder,
and Exchange Warrants equal in number to the number of the Warrants as are
surrendered by such Holder.
Interest on each Exchange Note issued pursuant to the Exchange Offer
will accrue from the last date on which interest was paid on the Note
surrendered in exchange therefor or, if
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no interest has been paid on such Note, from the Issue Date. To the extent not
prohibited by any law or applicable interpretation of the staff of the SEC, the
Company shall use reasonable best efforts to complete the Exchange Offer as
provided above, and shall comply with the applicable requirements of the
Securities Act, the Exchange Act and other applicable laws in connection with
the Exchange Offer. The Exchange Offer shall not be subject to any conditions
other than the conditions referred to in Section 2(b)(i) and (ii) below and
those conditions that are customary in similar exchange offers. Each Holder of
Registrable Notes or Registrable Warrants who wishes to exchange such
Registrable Notes or Registrable Warrants for Exchange Notes or Exchange
Warrants in the Exchange Offer will be required to make certain customary
representations in connection therewith, including, in the case of any Holder,
representations that (i) it is not an Affiliate of the Company, (ii) it is not a
broker-dealer tendering Registrable Notes or Registrable Warrants acquired
directly from the Company, (iii) the Exchange Notes or Exchange Warrants to be
received by it are being acquired in the ordinary course of its business and
(iv) at the time of the Exchange Offer, it has no arrangements or understandings
with any Person to participate in the distribution (within the meaning of the
Securities Act) of the Exchange Notes or the Exchange Warrants. The Company
shall inform the Initial Purchasers, after consultation with the Trustee, of the
names and addresses of the Holders to whom the Exchange Offer is made, and the
Initial Purchasers shall have the right to contact such Holders in order to
facilitate the tender of Registrable Notes or Registrable Warrants in the
Exchange Offer.
Upon consummation of the Exchange Offer in accordance with this Section
2(a), the provisions of this Agreement shall continue to apply, mutatis
mutandis, solely with respect to Exchange Notes and Exchange Warrants held by
Participating Broker-Dealers, and the Company shall have no further obligation
to register the Registrable Notes or Registrable Warrants held by any Holder
pursuant to Section 2(b) of this Agreement.
(b) Shelf Registration. In the event that (i) the Company reasonably
determines, after conferring with counsel (which may be in-house counsel), that
the Exchange Offer Registration provided in Section 2(a) above is not available
under applicable law and regulations and currently prevailing interpretations of
the staff of the SEC, (ii) the Exchange Offer is not consummated within 180 days
after the Issue Date or (iii) upon the request of any Initial Purchaser with
respect to any Registrable Notes or Registrable Warrants held by it, if such
Initial Purchaser is not permitted, in the reasonable opinion of Xxxxx & Xxxx
LLP, pursuant to applicable law or applicable interpretations of the staff of
the SEC, to participate in the Exchange Offer and thereby receive securities
that are freely tradeable without restriction under the Securities Act and
applicable blue sky or state securities laws (any of the events specified in
(i), (ii) or (iii) being a "Shelf Registration Event", and the date of
occurrence thereof, the "Shelf Registration Event Date"), then in addition to or
in lieu of conducting the Exchange Offer contemplated by Section 2(a), as the
case may be, the Company shall promptly notify the Holders thereof and shall, at
its cost, use its reasonable best efforts to cause to be filed as promptly as
practicable after such Shelf Registration Event Date, as the case may be, and,
in any event, within 60 days after such Shelf Registration Event Date (provided
that in no event shall such filing date be required to be earlier than 75 days
after the Issue Date), a Shelf Registration Statement providing for the sale by
the Holders of all of the Registrable Notes and all of the Registrable Warrants,
and shall use its reasonable best efforts to have such Shelf Registration
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Statement declared effective by the SEC as soon as practicable. No Holder of
Registrable Notes or Registrable Warrants shall be entitled to include any of
its Registrable Notes or Registrable Warrants in any Shelf Registration pursuant
to this Agreement unless and until such Holder agrees in writing to be bound by
all of the provisions of this Agreement applicable to such Holder and furnishes
to the Company in writing, within 15 days after receipt of a request therefor,
such information as the Company may, after conferring with counsel with regard
to information relating to Holders that would be required by the SEC to be
included in such Shelf Registration Statement or Prospectus included therein,
reasonably request for inclusion in any Shelf Registration Statement or
Prospectus included therein. Each Holder as to which any Shelf Registration is
being effected agrees to furnish to the Company all information with respect to
such Holder necessary to make the information previously furnished to the
Company by such Holder not materially misleading.
The Company agrees to use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective and the Prospectus usable for
resales for the earlier of: (a) the Rule 144(k) Period or (b) such time as all
of the securities covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement or cease to be Registrable Notes
(the "Effectiveness Period"). The Company shall not permit any securities other
than (i) the Company's issued and outstanding securities currently possessing
incidental registration rights (ii) Registrable Notes and (iii) Registrable
Warrants, to be included in the Shelf Registration. The Company will, in the
event a Shelf Registration Statement is declared effective, provide to each
Holder a reasonable number of copies of the Prospectus which is a part of the
Shelf Registration Statement, notify each such Holder when the Shelf
Registration has become effective and take any other action required to permit
unrestricted resales of the Registrable Notes and Registrable Warrants. The
Company further agrees, if necessary, to supplement or amend the Shelf
Registration Statement, if required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf
Registration Statement or by the Securities Act or by any other rules and
regulations thereunder for shelf registrations, and the Company agrees to
furnish to the Holders of Registrable Notes or Registrable Warrants copies of
any such supplement or amendment promptly after its being used or filed with the
SEC.
(c) Expenses. The Company shall pay all Registration Expenses in
connection with any Registration Statement filed pursuant to Section 2(a) and/or
2(b) hereof and will reimburse the Initial Purchasers for the reasonable fees
and disbursements of Xxxxx & Wood LLP incurred in connection with the Exchange
Offer. Except as provided herein, each Holder shall pay all expenses of its
counsel, underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Registrable Notes or
Registrable Warrants pursuant to the Shelf Registration Statement.
(d) Effective Registration Statement. An Exchange Offer Registration
Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement
pursuant to Section 2(b) hereof will not be deemed to have become effective
unless it has been declared effective by the SEC; provided, however, that if,
after it has been declared effective, the offering of Registrable Notes and
Registrable Warrants pursuant to such Exchange Offer Registration Statement or
Shelf
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Registration Statement is interfered with by any stop order, injunction or
other order or requirement of the SEC or any other governmental agency or court,
such Exchange Offer Registration Statement or Shelf Registration Statement will
be deemed not to have been effective during the period of such interference,
until the offering of Registrable Notes and Registrable Warrants pursuant to
such Registration Statement may legally resume. The Company will be deemed not
to have used its reasonable best efforts to cause the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may be,
to become, or to remain, effective during the requisite period if voluntarily
takes any action that would result in any such Registration Statement not being
declared effective or that would result in the Holders of Registrable Notes or
Registrable Warrants covered thereby not being able to exchange or offer and
sell such Registrable Notes or such Registrable Warrants during that period,
unless such action is required by applicable law.
(e) Liquidated Damages. In the event that:
(i) the Exchange Offer Registration Statement is not filed with
the SEC on or prior to the 60th day after the Issue Date, then, commencing on
the 61st day after the Issue Date, liquidated damages ("Liquidated Damages")
shall accrue on the principal amount of the Notes at a rate of 0.50% per annum;
(ii) the Exchange Offer Registration Statement is not declared
effective by the SEC on or prior to the 135th day after the Issue Date, then,
commencing on the 136th day after the Issue Date, Liquidated Damages shall
accrue on the principal amount of the Notes at a rate of 0.50% per annum;
(iii) the Shelf Registration Statement, if required pursuant to
Section 2(b), is not filed with the SEC on or prior to the date required
pursuant to such section, then, commencing on the first day after the applicable
required filing date, Liquidated Damages shall accrue on the principal amount of
the Notes at the rate of 0.50% per annum;
(iv) (A) the Company has not exchanged Exchange Notes and Exchange
Warrants for all Notes and Warrants, respectively, validly tendered in
accordance with the terms of the Exchange Offer on or prior to the 180th day
after the Issue Date or (B) if the Shelf Registration Statement is required to
be filed pursuant to Section 2(b) but is not declared effective by the SEC on or
prior to the 180th day after the Issue Date, then, commencing on the 181st day
after the Issue Date, Liquidated Damages shall accrue on the principal amount of
the Notes at the rate of 0.50% per annum; or
(v) the Shelf Registration Statement has been declared effective
and such Shelf Registration Statement ceases to be effective or the Prospectus
usable for resales (I) at any time prior to the expiration of the Effectiveness
Period or (II) if related to corporate developments, public filings or similar
events or to correct a material misstatement or omission in the Prospectus, for
more than 60 days (whether or not consecutive) in any twelve-month period, then
Liquidated Damages shall accrue on the principal amount of Notes at a rate of
0.50% per annum commencing on the day (in the case of (I) above), or the 61st
day after (in the
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case of (II) above), such Shelf Registration Statement ceases to be effective or
the Prospectus usable for resales;
provided, however, that the Liquidated Damages rate on the Notes may not exceed
in the aggregate 0.50% per annum; provided, further, however, that (1) upon the
filing of the Exchange Offer Registration Statement (in the case of clause (i)
above), (2) upon the effectiveness of the Exchange Offer Registration Statement
(in the case of clause (ii) above), (3) upon the filing of the Shelf
Registration Statement (in the case of clause (iii) above), (4) upon the
exchange of Exchange Notes and Exchange Warrants for all Notes and Warrants,
respectively, validly tendered (in the case of clause (iv)(A) above) or upon the
effectiveness of the Shelf Registration Statement (in the case of clause (iv)
(B) above) or (5) the earlier of (y) such time as the Shelf Registration
Statement which had ceased to remain effective or the Prospectus usable for
resales again becomes effective and usable for resales and (z) the expiration of
the Effectiveness Period (in the case of clause (v) above), Liquidated Damages
on the principal amount of the Notes as a result of such clause (or the relevant
subclause thereof) shall cease to accrue;
provided, further, however, that if the Exchange Offer Registration Statement is
not declared effective by the SEC on or prior to the 135th day after the Issue
Date and the Company shall request Holders to provide the information required
by the SEC for inclusion in the Shelf Registration Statement, the Notes owned by
Holders who do not provide such information when required pursuant to Section
2(b) will not be entitled to any Liquidated Damages following the 180th day
after the Issue Date.
Any amounts of Liquidated Damages due pursuant to Section 2(e)(i), (ii),
(iii), (iv) or (v) above will be payable in cash on the next succeeding June 15
or December 15, as the case may be, to Holders on the relevant record dates for
the payment of interest pursuant to the Indenture.
(f) Specific Enforcement. Without limiting the remedies available to
the Holders, the Company acknowledges that any failure by the Company to comply
with its obligations under Section 2(a) and Section 2(b) hereof may result in
material irreparable injury to the Holders for which there is no adequate remedy
at law, that it would not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, any Holder may obtain such
relief as may be required to specifically enforce the Company's obligations
under Section 2(a) and Section 2(b) hereof.
3. Registration Procedures. In connection with the obligations of the
Company with respect to the Registration Statements pursuant to Sections 2(a)
and 2(b) hereof, the Company shall use its reasonable best efforts to:
(a) prepare and file with the SEC a Registration Statement or
Registration Statements as prescribed by Sections 2(a) and 2(b) hereof
within the relevant time period specified in Section 2 hereof on the
appropriate form under the Securities Act, which form shall (i) be
selected by the Company, (ii) in the case of a Shelf Registration, be
available for the sale of the Registrable Notes and the Registrable
Warrants by the selling Holders thereof and, in the case of an Exchange
Offer, be available for the exchange of Registrable Notes and the
Registrable Warrants, and
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(iii) comply as to form in all material respects with the requirements
of the applicable form and include all financial statements required by
the SEC to be filed therewith; the Company shall use its reasonable
best efforts to cause such Registration Statement to become effective
and remain effective (and, in the case of a Shelf Registration
Statement, the Prospectus usable for resales) in accordance with
Section 2 hereof; provided, however, that if (1) such filing is
pursuant to Section 2(b), or (2) a Prospectus contained in an Exchange
Offer Registration Statement filed pursuant to Section 2(a) is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes or Exchange Warrants,
before filing any Registration Statement or Prospectus or any
amendments or supplements thereto, the Company shall furnish to and
afford the Holders of the Registrable Notes and Registrable Warrants
and each such Participating Broker-Dealer, as the case may be, covered
by such Registration Statement, their counsel and the managing
underwriters, if any, a reasonable opportunity to review copies of all
such documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed; and
the Company shall not file any Registration Statement or Prospectus or
any amendments or supplements thereto in respect of which the Holders
must be afforded an opportunity to review prior to the filing of such
document if the Majority Holders of either or both the Registrable
Notes or Registrable Warrants, depending solely upon which Holders must
be afforded the opportunity of such review, or such Participating
Broker-Dealer, as the case may be, their counsel or the managing
underwriters, if any, shall reasonably object in a timely manner;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep
such Registration Statement effective for the Effectiveness Period or
the Applicable Period, as the case may be, and cause each Prospectus to
be supplemented, if so determined by the Company or requested by the
SEC, by any required prospectus supplement and as so supplemented to be
filed pursuant to Rule 424 (or any similar provision then in force)
under the Securities Act, and comply with the provisions of the
Securities Act, the Exchange Act and the rules and regulations
promulgated thereunder applicable to it with respect to the disposition
of all securities covered by each Registration Statement during the
Effectiveness Period or the Applicable Period, as the case may be, in
accordance with the intended method or methods of distribution by the
selling Holders thereof described in this Agreement (including sales by
any Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Notes and Registrable Warrants included in the Shelf
Registration Statement, at least three Business Days prior to filing,
that a Shelf Registration Statement with respect to the Registrable
Notes and the Registrable Warrants is being filed and advising such
Holder that the distribution of Registrable Notes and Registrable
Warrants will be made in accordance with the method selected by (1) the
Majority
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Holders of the Registrable Notes solely in respect to the method of
distribution for the Registrable Notes and (2) the Majority Holders of
the Registrable Warrants solely in respect to the method of
distribution for the Registrable Warrants, (ii) furnish to each Holder
of Registrable Notes and Registrable Warrants included in the Shelf
Registration Statement and to each underwriter of an underwritten
offering of Registrable Notes and Registrable Warrants, if any, without
charge, as many copies of each Prospectus, including each preliminary
prospectus, and any amendment or supplement thereto, and such other
documents as such Holder or underwriter may reasonably request, in
order to facilitate the public sale or other disposition of the
Registrable Notes and Registrable Warrants and (iii) consent to the use
of the Prospectus or any amendment or supplement thereto by each of the
selling Holders of Registrable Notes and Registrable Warrants included
in the Shelf Registration Statement in connection with the offering and
sale of the Registrable Notes and Registrable Warrants covered by the
Prospectus or any amendment or supplement thereto;
(d) in the case of a Shelf Registration, register or qualify the
Registrable Notes and Registrable Warrants under all applicable state
securities or "blue sky" laws of such jurisdictions by the time the
applicable Registration Statement is declared effective by the SEC as
any Holder of Registrable Notes or Registrable Warrants covered by a
Registration Statement and each underwriter of an underwritten offering
of Registrable Notes or Registrable Warrants shall reasonably request
in writing in advance of such date of effectiveness, and do any and all
other acts and things which may be reasonably necessary or advisable to
enable such Holder and underwriter to consummate the disposition in
each such jurisdiction of such Registrable Notes or Registrable
Warrants owned by such Holder; provided, however, that the Company
shall not be required to (i) qualify as a foreign corporation or as a
dealer in securities in any jurisdiction where it would not otherwise
be required to qualify but for this Section 3(d), (ii) file any general
consent to service of process in any jurisdiction where it would not
otherwise be subject to such service of process or (iii) subject itself
to taxation in any such jurisdiction if it is not then so subject;
(e) (1) in the case of a Shelf Registration or (2) if Participating
Broker-Dealers from whom the Company has received prior written notice
that they will be utilizing the Prospectus contained in the Exchange
Offer Registration Statement as provided in Section 3(u) hereof, are
seeking to sell Exchange Notes or Exchange Warrants and are required to
deliver Prospectuses, promptly notify each Holder of Registrable Notes
and Registrable Warrants, or such Participating Broker-Dealers, as the
case may be, their counsel and the managing underwriters, if any, and
promptly confirm such notice in writing (i) when a Registration
Statement has become effective and when any post-effective amendments
thereto become effective, (ii) of any request by the SEC or any state
securities authority for amendments and supplements to a Registration
Statement or Prospectus or for additional information after the
Registration Statement has become effective, (iii)
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of the issuance by the SEC or any state securities authority of any
stop order suspending the effectiveness of a Registration Statement or
the qualification of the Registrable Notes, the Registrable Warrants,
the Exchange Notes or the Exchange Warrants to be offered or sold by
any Participating Broker-Dealer in any jurisdiction described in
Section 3(d) hereof or the initiation of any proceedings for that
purpose, (iv) in the case of a Shelf Registration, if, between the
effective date of a Registration Statement and the closing of any sale
of Registrable Notes or Registrable Warrants covered thereby, the
representations and warranties of the Company contained in any purchase
agreement, securities sales agreement or other similar agreement cease
to be true and correct in all material respects, (v) of the happening
of any event or the failure of any event to occur or the discovery of
any facts, during the Effectiveness Period, which makes any statement
made in such Registration Statement or the related Prospectus untrue in
any material respect or which causes such Registration Statement or
Prospectus to omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading, as well as any other corporate
developments, public filings with the SEC or similar events causing
such Registration Statement not to be effective or the Prospectus not
useable for resales and (vi) of the reasonable determination of the
Company that a post-effective amendment to the Registration Statement
would be appropriate;
(f) obtain the withdrawal of any order suspending the effectiveness of
a Registration Statement at the earliest possible moment;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Notes and Registrable Warrants included within the coverage
of such Shelf Registration Statement, without charge, at least one
conformed copy of each Registration Statement relating to such Shelf
Registration and any post-effective amendment thereto (without
documents incorporated therein by reference or exhibits thereto, unless
requested);
(h) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Notes and Registrable Warrants to facilitate the
timely preparation and delivery of certificates representing
Registrable Notes and Registrable Warrants to be sold and not bearing
any restrictive legends and in such denominations (consistent with the
provisions of the Indenture in the case of the Registrable Notes) and
registered in such names as the selling Holders or the underwriters may
reasonably request at least two Business Days prior to the closing of
any sale of Registrable Notes or Registrable Warrants pursuant to such
Shelf Registration Statement;
(i) in the case of a Shelf Registration or an Exchange Offer
Registration, promptly after the occurrence of any event specified in
Section 3(e)(ii), 3(e)(iii), 3(e)(v) (subject to a 60-day grace period
within any twelve-month period) or 3(e)(vi) hereof, prepare a
supplement or post-effective amendment to such
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Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of the Registrable
Notes and Registrable Warrants, such Prospectus will not include any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and the
Company shall notify each Holder to suspend use of the Prospectus as
promptly as practicable after the occurrence of such an event, and each
Holder hereby agrees to suspend use of the Prospectus until the Company
has amended or supplemented the Prospectus to correct such misstatement
or omission;
(j) in the case of a Shelf Registration, a reasonable time prior to the
filing of any document which is to be incorporated by reference into a
Registration Statement or a Prospectus after the initial filing of a
Registration Statement, provide a reasonable number of copies of such
document to the Holders and make such of the representatives of the
Company as shall be reasonably requested by the Holders of Registrable
Notes or Registrable Warrants or the Initial Purchasers on behalf of
such Holders available for discussion of such document;
(k) obtain a CUSIP number the Notes and Warrants, as the case may be,
not later than the effective date of a Registration Statement, and
provide the Trustee with certificates for the Exchange Notes or the
Registrable Notes and the Warrant Agent with certificates for the
Exchange Warrants or the Registrable Warrants, as the case may be, in a
form eligible for deposit with the Depositary;
(l) cause the Indenture to be qualified under the Trust Indenture Act
of 1939, as amended (the "TIA"), in connection with the registration of
the Exchange Notes or Registrable Notes, as the case may be, and effect
such changes to such documents as may be required for them to be so
qualified in accordance with the terms of the TIA and execute, and
cause the Trustee to execute, all documents as may be required to
effect such changes, and all other forms and documents required to be
filed with the SEC to enable such documents to be so qualified in a
timely manner;
(m) in the case of a Shelf Registration, enter into such agreements
(including underwriting agreements) as are customary in underwritten
offerings and take all such other appropriate actions in connection
therewith as are reasonably requested by (1) in the case of the
Registrable Notes, the Holders of at least 25% in aggregate principal
amount of the Registrable Notes in order to expedite or facilitate the
registration or the disposition of the Registrable Notes and (2) in the
case of the Registrable Warrants, the Holders of at least 25% of the
number of outstanding Warrants in order to expedite or facilitate the
registration or the disposition of the Registrable Warrants;
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(n) in the case of a Shelf Registration, whether or not an underwriting
agreement is entered into and whether or not the registration is an
underwritten registration, if requested by (x) an Initial Purchaser, in
the case where such Initial Purchaser holds Notes or Warrants acquired
by it as part of its initial placement and (y) Holders of at least 25%
in aggregate principal amount of the Registrable Notes or 25% of the
outstanding number of Registrable Warrants, as the case may be, covered
thereby: (i) make such representations and warranties to Holders of
such Registrable Notes or Registrable Warrants and the underwriters (if
any), with respect to the business of the Company and the subsidiaries
of the Company as then conducted and the Registration Statement,
Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, as are customarily
made by issuers to underwriters in underwritten offerings, and confirm
the same if and when requested; (ii) obtain opinions of counsel to the
Company and updates thereof (which may be in the form of a reliance
letter) in form and substance reasonably satisfactory to the managing
underwriters (if any) and the Holders of a majority in amount of the
Registrable Notes or Registrable Warrants being sold, addressed to each
selling Holder and the underwriters (if any) covering the matters
customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by such underwriters
(it being agreed that the matters to be covered by such opinion may be
subject to customary qualifications and exceptions); (iii) obtain "cold
comfort" letters and updates thereof in form and substance reasonably
satisfactory to the managing underwriters from the independent
certified public accountants of the Company (and, if necessary, any
other independent certified public accountants of any business acquired
by the Company for which financial statements and financial data are,
or are required to be, included in the Registration Statement),
addressed to each of the underwriters, such letters to be in customary
form and covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings and such
other matters as reasonably requested by such underwriters in
accordance with Statement on Auditing Standards No. 72; and (iv) if an
underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable than those
set forth in Section 4 hereof (or such other provisions and procedures
acceptable to Holders of a majority (1) in aggregate principal amount
of Registrable Notes or (2) of the outstanding number of Registrable
Warrants, as the context requires, covered by such Registration
Statement and the managing underwriters) customary for such agreements
with respect to all parties to be indemnified pursuant to said Section
(including, without limitation, such underwriters and selling Holders);
and in the case of an underwritten registration, the above requirements
shall be satisfied at each closing under the related underwriting
agreement or as and to the extent required thereunder;
(o) if (1) a Shelf Registration is filed pursuant to Section 2(b) or
(2) a Prospectus contained in an Exchange Offer Registration Statement
filed pursuant to Section 2(a) is required to be delivered under the
Securities Act by any Participating
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Broker-Dealer who seeks to sell Exchange Notes or Exchange Warrants
during the Applicable Period, make reasonably available for inspection
by any selling Holder or Registrable Notes or Registrable Warrants or
Participating Broker-Dealer, as applicable, who certifies to the
Company that it has a current intention to sell Registrable Notes or
Registrable Warrants pursuant to the Shelf Registration, any
underwriter participating in any such disposition of Registrable Notes
or Registrable Warrants, if any, and any attorney, accountant or other
agent retained by any such selling Holder, Participating Broker-Dealer,
as the case may be, or underwriter (collectively, the "Inspectors"), at
the offices where normally kept, during the Company's normal business
hours, all financial and other records, pertinent organizational and
operational documents and properties of the Company and its
subsidiaries (collectively, the "Records") as shall be reasonably
necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, trustees and employees of
Equity Office Properties Trust and the Company and its subsidiaries to
supply all relevant information in each case reasonably requested by
any such Inspector in connection with such Registration Statement;
records and information which the Company determines, in good faith, to
be confidential and any Records and information which it notifies the
Inspectors are confidential shall not be disclosed to any Inspector
except where (i) the disclosure of such Records or information is
necessary to avoid or correct a material misstatement or omission in
such Registration Statement, (ii) the release of such Records or
information is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction or is necessary in connection with any
action, suit or proceeding or (iii) such Records or information
previously has been made generally available to the public; each
selling Holder of such Registrable Notes or Registrable Warrants and
each such Participating Broker-Dealer will be required to agree in
writing that Records and information obtained by it as a result of such
inspections shall be deemed confidential and shall not be used by it as
the basis for any market transactions in the securities of the Company
unless and until such is made generally available to the public through
no fault of an Inspector or a selling Holder; and each selling Holder
of such Registrable Notes or Registrable Warrants and each such
Participating Broker-Dealer will be required to further agree in
writing that it will, upon learning that disclosure of such Records or
information is sought in a court of competent jurisdiction, or in
connection with any action, suit or proceeding, give notice to the
Company and allow the Company at its expense to undertake appropriate
action to prevent disclosure of the Records and information deemed
confidential;
(p) comply with all applicable rules and regulations of the SEC so long
as any provision of this Agreement shall be applicable and make
generally available to its securityholders earning statements
satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12-month
period (or 60 days after the end of any 12-month period if such period
is a fiscal year)
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(i) commencing at the end of any fiscal quarter in which Registrable
Notes and / or Registrable Warrants are sold to underwriters in a firm
commitment or best efforts underwritten offering and (ii) if not sold
to underwriters in such an offering, commencing on the first day of the
first fiscal quarter of the Company after the effective date of a
Registration Statement, which statements shall cover said 12-month
periods, provided that the obligations under this paragraph (p) shall
be satisfied by the timely filing of quarterly and annual reports on
Forms 10-Q and 10-K under the Exchange Act;
(q) upon consummation of an Exchange Offer, if requested by the Trustee
or Warrant Agent, obtain an opinion of counsel to the Company addressed
to the Trustee or Warrant Agent for the benefit of all Holders of
Registrable Notes or Registable Warrants participating in the Exchange
Offer, substantially to the effect that (i) the Company has duly
authorized, executed and delivered the Exchange Notes or Exchange
Warrants, as the case may be, and (ii) each of the Exchange Notes or
Exchange Warrants constitutes a legal, valid and binding obligation of
the Company, enforceable against the Company, in accordance with its
respective terms (in each case, with customary exceptions);
(r) if an Exchange Offer is to be consummated, upon delivery of the
Registrable Notes and Registrable Warrants by Holders to the Company
(or to such other Person as directed by the Company), in exchange for
the Exchange Notes and Exchange Warrants, the Company shall xxxx, or
cause to be marked, on such Registrable Notes and Registrable Warrants
delivered by such Holders that such Registrable Notes and Registrable
Warrants are being cancelled in exchange for the Exchange Notes and
Exchange Warrants; it being understood that in no event shall such
Registrable Notes or Registrable Warrants be marked as paid or
otherwise satisfied;
(s) cooperate with each seller of Registrable Notes or Registrable
Warrants covered by any Registration Statement and each underwriter, if
any, participating in the disposition of such Registrable Notes or
Registrable Warrants and their respective counsel in connection with
any filings required to be made with the NASD;
(t) take all other steps necessary to effect the registration of the
Registrable Notes and Registrable Warrants covered by a Registration
Statement contemplated hereby;
(u) (A) in the case of the Exchange Offer Registration Statement (i)
include in the Exchange Offer Registration Statement a section entitled
"Plan of Distribution," which section shall be reasonably acceptable to
the Initial Purchasers or another representative of the Participating
Broker-Dealers, and which shall contain a summary statement of the
positions taken or policies made by the staff of the SEC with respect
to the potential "underwriter" status of any
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broker-dealer that holds Registrable Notes or Registrable Warrants
acquired for its own account as a result of market-making activities or
other trading activities (a "Participating Broker-Dealer") and that
will be the beneficial owner (as defined in Rule 13d-3 under the
Exchange Act) of Exchange Notes or Exchange Warrants to be received by
such broker-dealer in the Exchange Offer, whether such positions or
policies have been publicly disseminated by the staff of the SEC or
such positions or policies, in the reasonable judgment of the Initial
Purchasers or such other representative, represent the prevailing views
of the staff of the SEC, including a statement that any such
broker-dealer who receives Exchange Notes for Registrable Notes and /
or Exchange Warrants for Registrable Warrants pursuant to the Exchange
Offer may be deemed a statutory underwriter and must deliver a
prospectus meeting the requirements of the Securities Act in connection
with any resale of such Exchange Notes or Exchange Warrants, (ii)
furnish to each Participating Broker-Dealer who has delivered to the
Company the notice referred to in Section 3(e), without charge, as many
copies of each Prospectus included in the Exchange Offer Registration
Statement, including any preliminary Prospectus, and any amendment or
supplement thereto, as such Participating Broker-Dealer may reasonably
request (the Company hereby consents to the use of the Prospectus
forming part of the Exchange Offer Registration Statement or any
amendment or supplement thereto by any Person subject to the prospectus
delivery requirements of the Securities Act, including all
Participating Broker-Dealers, in connection with the sale or transfer
of the Exchange Notes or Exchange Warrants covered by the Prospectus or
any amendment or supplement thereto), (iii) use its reasonable best
efforts to keep the Exchange Offer Registration Statement effective and
to amend and supplement the Prospectus contained therein in order to
permit such Prospectus to be lawfully delivered by all Persons subject
to the prospectus delivery requirements of the Securities Act for such
period of time as such Persons must comply with such requirements under
the Securities Act and applicable rules and regulations in order to
resell the Exchange Notes or the Exchange Warrants; provided, however,
that such period shall not be required to exceed 180 days (or such
longer period if extended pursuant to the last sentence of Section 3
hereof) (the "Applicable Period"), and (iv) include in the transmittal
letter or similar documentation to be executed by an exchange offeree
in order to participate in the Exchange Offer (x) the following
provision:
"If the exchange offeree is a broker-dealer holding Registrable Notes
or Registrable Warrants acquired for its own account as a result of
market-making activities or other trading activities, it will deliver a
prospectus meeting the requirements of the Securities Act in connection
with any resale of Exchange Notes or Exchange Warrants received in
respect of such Registrable Notes or Registrable Warrants pursuant to
the Exchange Offer";
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and (y) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (x) and by delivering a Prospectus
in connection with the exchange of Registrable Notes or Registrable
Warrants, the broker-dealer will not be deemed to admit that it is an
underwriter within the meaning of the Securities Act; and
(B) in the case of any Exchange Offer Registration Statement, the
Company agrees to deliver to the Initial Purchasers or to another
representative of the Participating Broker-Dealers, if reasonably
requested by an Initial Purchaser or such other representative of
Participating Broker-Dealers, on behalf of the Participating
Broker-Dealers upon consummation of the Exchange Offer (i) an opinion
of counsel in form and substance reasonably satisfactory to such
Initial Purchaser or such other representative of the Participating
Broker-Dealers, covering the matters customarily covered in opinions
requested in connection with Exchange Offer Registration Statements and
such other matters as may be reasonably requested (it being agreed that
the matters to be covered by such opinion may be subject to customary
qualifications and exceptions), (ii) an officers' certificate
containing certifications substantially similar to those set forth in
Section 5(c) of the Purchase Agreement and such additional
certifications as are customarily delivered in a public offering of
debt securities and (iii) upon the effectiveness of the Exchange Offer
Registration Statement, comfort letter(s), in each case, in customary
form if permitted by Statement on Auditing Standards No. 72.
The Company may require each seller of Registrable Notes or Registrable
Warrants as to which any registration is being effected to furnish to the
Company such information regarding such seller as may be required by the staff
of the SEC to be included in a Registration Statement. The Company may exclude
from such registration the Registrable Notes and the Registrable Warrants of any
seller who unreasonably fails to furnish such information within a reasonable
time after receiving such request. The Company shall have no obligation to
register under the Securities Act the Registrable Notes or Registrable Warrants
of a seller who so fails to furnish such information.
In the case of a Shelf Registration Statement, or if Participating
Broker-Dealers who have notified the Company that they will be utilizing the
Prospectus contained in the Exchange Offer Registration Statement as provided in
this Section 3(u) hereof are seeking to sell Exchange Notes or Exchange Warrants
and are required to deliver Prospectuses, each Holder agrees that, upon receipt
of any notice from the Company of the occurrence of any event specified in
Section 3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, such Holder will
forthwith discontinue disposition of Registrable Notes and Registrable Warrants
pursuant to a Registration Statement until such Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 3(i) hereof or
until it is advised in writing (the "Advice") by the Company that the use of the
applicable Prospectus may be resumed, and, if so directed by the Company, such
Holder will deliver to the Company (at the Company's expense) all copies in such
Holder's possession, other than permanent file copies then in such Holder's
possession, of
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the Prospectus covering such Registrable Notes, Registrable Warrants, Exchange
Notes, or Exchange Warrants, as the case may be, current at the time of receipt
of such notice. If the Company shall give any such notice to suspend the
disposition of Registrable Notes, Registrable Warrants, Exchange Notes or
Exchangeable Warrants , as the case may be, pursuant to a Registration
Statement, the Company shall use its reasonable best efforts to file and have
declared effective (if an amendment) as soon as practicable after the resolution
of the related matters an amendment or supplement to the Registration Statement
and shall extend the period during which such Registration Statement is required
to be maintained effective and the Prospectus usable for resales pursuant to
this Agreement by the number of days in the period from and including the date
of the giving of such notice to and including the date when the Company shall
have made available to the Holders (x) copies of the supplemented or amended
Prospectus necessary to resume such dispositions or (y) the Advice.
4. Indemnification and Contribution. (a) In connection with any
Registration Statement, the Company shall indemnify and hold harmless the
Initial Purchasers, each Holder, each underwriter who participates in an
offering of the Registrable Notes or Registrable Warrants, each Participating
Broker-Dealer, each Person, if any, who controls any of such parties within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
and each of their respective directors, officers, employees and agents, as
follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in any Registration
Statement (or any amendment or supplement thereto), covering
Registrable Notes, Registrable Warrants, Exchange Notes, or Exchange
Warrants, as applicable, or the omission or alleged omission therefrom
of a material fact required to be stated therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission; provided that (subject to
Section 4(d) hereof) any such settlement is effected with the prior
written consent of the Company; and
(iii) against any and all expenses whatsoever, as incurred (including
the reasonable fees and disbursements of counsel chosen by such Holder,
such Participating Broker-Dealer, or any underwriter (except to the
extent otherwise expressly provided in Section 4(c) hereof)),
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under subparagraph (i) or (ii) of this Section 4(a);
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provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished in writing to the Company by the
Initial Purchasers or such Holder, underwriter or Participating Broker-Dealer
for use in a Registration Statement (or any amendment thereto) or any Prospectus
(or any amendment or supplement thereto).
(b) Each of the Initial Purchasers and each Holder, underwriter or
Participating Broken-Dealer agrees, severally and not jointly, to indemnify and
hold harmless the Company, Equity Office Properties Trust and the trustees and
officers of Equity Office Properties Trust, and each Person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act against any and all loss, liability, claim,
damage and expense whatsoever described in the indemnity contained in Section
4(a) hereof, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in a Registration
Statement (or any amendment thereto) or any Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by such Holder expressly for use in such Registration
Statement (or any amendment thereto), or any such Prospectus (or any amendment
or supplement thereto); provided, however, that in the case of a Shelf
Registration Statement, no such Holder shall be liable for any claims hereunder
in excess of the amount of net proceeds received by such Holder from the sale of
Registrable Notes or Registrable Warrants pursuant to such Shelf Registration
Statement.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have under this Section 4 to the extent that it is not materially
prejudiced by such failure as a result thereof, and in any event shall not
relieve it from liability which it may have otherwise on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section 4(a)
or (b) above, counsel to the indemnified parties shall be selected by such
parties. An indemnifying party may participate at its own expense in the defense
of such action; provided, however, that counsel to the indemnifying party shall
not (except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for the
fees and expenses of more than one counsel (in addition to local counsel),
separate from their own counsel, for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 4 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional written release of each indemnified party from all liability
arising out of such litigation,
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investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) If at any time an indemnified party shall have validly requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 4(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) In order to provide for just and equitable contribution in
circumstances under which any of the indemnity provisions set forth in this
Section 4 is for any reason held to be unenforceable by an indemnified party
although applicable in accordance with its terms, the Company and the Holders
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by such indemnity agreement incurred by the
Company and the Holders, as incurred; provided, however, that no Person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) shall be entitled to contribution from any Person that was not guilty of
such fraudulent misrepresentation. As between the Company and the Holders, such
parties shall contribute to such aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by such indemnity agreement in such
proportion as shall be appropriate to reflect the relative fault of the Company,
on the one hand, and the Holders, on the other hand, with respect to the
statements or omissions which resulted in such loss, liability, claim, damage or
expense, or action in respect thereof, as well as any other relevant equitable
considerations. The relative fault of the Company, on the one hand, and of the
Holders, on the other hand, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, on the one hand, or by or on behalf of the Holders, on
the other, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and the Holders agree that it would not be just and equitable if contribution
pursuant to this Section 4 were to be determined by pro rata allocation or by
any other method of allocation that does not take into account the relevant
equitable considerations. For purposes of this Section 4, each Affiliate of a
Holder, and each director, officer and employee and Person, if any, who controls
a Holder or such Affiliate within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act shall have the same rights to contribution
as such Holder, and each trustee and officer of Equity Office Properties Trust
and each Person, if any, who controls the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Company.
5. Participation in an Underwritten Registration. No Holder may
participate in an underwritten registration hereunder unless such Holder (a)
agrees to sell such Holder's
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Registrable Notes or Registrable Warrants on the basis provided in the
underwriting arrangement approved by the Persons entitled hereunder to approve
such arrangements and (b) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up letters and
other documents reasonably required under the terms of such underwriting
arrangements.
6. Selection of Underwriters. The Holders of Registrable Notes and / or
Registrable Warrants covered by the Shelf Registration Statement who desire to
do so may sell the Securities covered by such Shelf Registration in an
underwritten offering, subject to the provisions of Section 3(m) hereof. In any
such underwritten offering, the underwriter or underwriters and manager or
managers that will administer the offering will be selected by the Holders of a
majority in aggregate principal amount of the Registrable Notes or a majority of
the outstanding number of the Registrable Warrants included in such offering;
provided, however, that such underwriters and managers must be reasonably
satisfactory to the Company.
7. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the Company is subject to
the reporting requirements of Section 13 or 15 of the Exchange Act and any
Registrable Notes or Registrable Warrants remain outstanding, the Company will
file the reports required to be filed by it under the Securities Act and Section
13(a) or 15(d) of the Exchange Act and the rules and regulations adopted by the
SEC thereunder; provided, however, that if the Company ceases to be so required
to file such reports, it will, upon the request of any Holder of Registrable
Notes or Registrable Warrants, (a) make publicly available such information as
is necessary to permit sales of its securities pursuant to Rule 144 under the
Securities Act, (b) deliver such information to a prospective purchaser as is
necessary to permit sales of its securities pursuant to Rule 144A under the
Securities Act, and (c) take such further action that is reasonable in the
circumstances, in each case, to the extent required from time to time to enable
such Holder to sell its Registrable Notes or Registrable Warrants without
registration under the Securities Act within the limitation of the exemptions
provided by (i) Rule 144 under the Securities Act, as such rule may be amended
from time to time, (ii) Rule 144A under the Securities Act, as such rule may be
amended from time to time, or (iii) any similar rules or regulations hereafter
adopted by the SEC. Upon the request of any Holder of Registrable Notes or
Registrable Warrants, the Company will deliver to such Holder a written
statement as to whether it has complied with such requirements.
(b) No Inconsistent Agreements. The Company has not entered into, nor
will the Company on or after the date of this Agreement enter into, any
agreement which is inconsistent with the rights granted to the Holders of
Registrable Notes or the Registrable Warrants in this Agreement or otherwise
conflicts with the provisions hereof. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Company's other issued and outstanding
securities under any such agreements.
(c) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, unless the Company has
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obtained the written consent of Holders of a majority in aggregate principal
amount of the outstanding Registrable Notes or a majority of the outstanding
number of the Registrable Warrants affected by such amendment, modification,
supplement, waiver or departure; provided that no amendment, modification or
supplement or waiver or consent to the departure with respect to the provisions
of Section 4 hereof shall be effective as against any Holder of Registrable
Notes or Registrable Warrants unless consented to in writing by such Holder of
Registrable Notes or Registrable Warrants. Notwithstanding the foregoing
sentence, (i) this Agreement may be amended, without the consent of any Holder
of Registrable Notes or Registrable Warrants, by written agreement signed by the
Company and the Initial Purchasers, to cure any ambiguity, correct or supplement
any provision of this Agreement that may be inconsistent with any other
provision of this Agreement or to make any other provisions with respect to
matters or questions arising under this Agreement which shall not be
inconsistent with other provisions of this Agreement, (ii) this Agreement may be
amended, modified or supplemented, and waivers and consents to departures from
the provisions hereof may be given, by written agreement signed by the Company
and the Initial Purchasers to the extent that any such amendment, modification,
supplement, waiver or consent is, in their reasonable judgment, necessary or
appropriate to comply with applicable law (including any interpretation of the
Staff of the SEC) or any change therein and (iii) to the extent any provision of
this Agreement relates to an Initial Purchaser, such provision may be amended,
modified or supplemented, and waivers or consents to departures from such
provisions may be given, by written agreement signed by such Initial Purchaser
and the Company.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of this
Section 7(d), which address initially is, with respect to each Initial
Purchaser, the address set forth in the Purchase Agreement; and (ii) if to the
Company, initially at the Company's address set forth in the Purchase Agreement
and thereafter at such other address, notice of which is given in accordance
with the provisions of this Section 7(d).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of the Initial
Purchasers, including, without limitation and without the need for an express
assignment, subsequent Holders; provided, however, that nothing herein shall be
deemed to permit any assignment, transfer or other
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disposition of Registrable Notes or Registrable Warrants in violation of the
terms of the Purchase Agreement, the Indenture, or the Warrant Agreement. If any
transferee of any Holder shall acquire Registrable Notes or Registrable Warrants
in any manner, whether by operation of law or otherwise, such Registrable Notes
or Registrable Warrants shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Notes or Registrable
Warrants, such Person shall be conclusively deemed to have agreed to be bound by
and to perform all of the terms and provisions of this Agreement and such Person
shall be entitled to receive the benefits hereof.
(f) Third Party Beneficiaries. Each Holder and any Participating
Broker-Dealer shall be third party beneficiaries of the agreements made
hereunder between the Initial Purchasers and the Company, and the Initial
Purchasers shall have the right to enforce such agreements directly to the
extent it deems such enforcement necessary or advisable to protect its rights or
the rights of Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN
THE STATE OF NEW YORK. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT, AND
THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY
PROVISIONS RELATING TO CONFLICTS OF LAWS. EACH OF THE PARTIES HERETO AGREES TO
SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
ANY OF THE MATTERS CONTEMPLATED HEREBY, IRREVOCABLY WAIVES ANY DEFENSE OF LACK
OF PERSONAL JURISDICTION AND IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF
ANY SUIT, ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT.
EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(j) 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,
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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.
(k) Securities Held by the Company or its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable Notes or
Registrable Warrants is required hereunder, Registrable Notes or Registrable
Warrants held by the Company or its Affiliates shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
EOP OPERATING LIMITED PARTNERSHIP
By: EQUITY OFFICE PROPERTIES TRUST,
As Managing General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title:Executive Vice President and
Chief Financial Officer
Confirmed and accepted as of
the date first above
written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXXX, SACHS & CO.
X.X. XXXXXX SECURITIES INC.
NATIONSBANC XXXXXXXXXX SECURITIES LLC
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
For itself and as Representative of the
several Initial Purchasers
By: /s/ Xxxxxxx Xxxxxx
----------------------------------------
Authorized Signatory
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