EXHIBIT 4.16
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REGISTRATION RIGHTS AGREEMENT
Dated as of October 15, 2004
Among
HERITAGE PROPERTY INVESTMENT TRUST, INC.
AND THE GUARANTORS NAMED HEREIN
and
DEUTSCHE BANK SECURITIES INC.,
UBS SECURITIES LLC
and
WACHOVIA CAPITAL MARKETS, LLC
4.50% Notes due 2009
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TABLE OF CONTENTS
PAGE
1. Definitions..............................................................................................1
2. Exchange Offer...........................................................................................4
3. Shelf Registration.......................................................................................7
4. Additional Interest......................................................................................8
5. Registration Procedures.................................................................................10
6. Registration Expenses...................................................................................16
7. Indemnification and Contribution........................................................................16
8. Rules 144 and 144A......................................................................................19
9. Underwritten Registrations..............................................................................19
10. Miscellaneous..........................................................................................19
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REGISTRATION RIGHTS AGREEMENT
This
Registration Rights Agreement (this "AGREEMENT") is dated as of
October 15, 2004, among HERITAGE PROPERTY INVESTMENT TRUST, INC., a Maryland
corporation (the "COMPANY"), and
HERITAGE PROPERTY INVESTMENT LIMITED
PARTNERSHIP AND XXXXXXX OPERATING LIMITED PARTNERSHIP (the "GUARANTORS," and,
together with the Company, the "ISSUERS") and DEUTSCHE BANK SECURITIES INC., UBS
SECURITIES LLC and WACHOVIA CAPITAL MARKETS, LLC (the "INITIAL PURCHASERS").
This Agreement is entered into in connection with the Purchase Agreement
by and among the Company and the Initial Purchasers, dated as of October 12,
2004 (the "PURCHASE AGREEMENT"), which provides for, among other things, the
sale by the Company to the Initial Purchasers of $150,000,000 aggregate
principal amount of the Company's 4.50% Notes due 2009 (the "NOTES"), guaranteed
by the Guarantors (the "GUARANTEES"). The Notes and the Guarantees are
collectively referenced herein as the "SECURITIES." In order to induce the
Initial Purchasers to enter into the Purchase Agreement, the Issuers have agreed
to provide the registration rights set forth in this Agreement for the benefit
of the Initial Purchasers and any subsequent holder or holders of the
Securities. The execution and delivery of this Agreement is a condition to the
Initial Purchasers' obligation to purchase the Securities under the Purchase
Agreement.
The parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
"ADDITIONAL INTEREST" has the meaning given such term in Section 4(a)
hereof.
"ADVICE" has the meaning given such term in the last paragraph of Section
5 hereof.
"AGREEMENT" has the meaning given such term in the introductory
paragraphs hereto.
"APPLICABLE PERIOD" has the meaning given such term in Section 2(b)
hereof.
"BUSINESS DAY" means any day other than a Saturday, Sunday that is
neither a legal holiday nor a day on which banking institutions in
New York City
are authorized or required by law, regulation or executive order to close.
"COMPANY" has the meaning given such term in the introductory paragraphs
hereto.
"EFFECTIVENESS DATE" means, with respect to (i) the Exchange Offer
Registration Statement, the 150th day after the Issue Date and (ii) any Shelf
Registration Statement, the 120th day after the Filing Date with respect
thereto; PROVIDED, HOWEVER, that if the Effectiveness Date would otherwise fall
on a day that is not a Business Day, then the Effectiveness Date shall be the
next succeeding Business Day.
"EFFECTIVENESS PERIOD" has the meaning given such term in Section 3(a)
hereof.
"EVENT DATE" has the meaning given such term in Section 4(b) hereof.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
"EXCHANGE NOTES" has the meaning given such term in Section 2(a) hereof.
"EXCHANGE OFFER" has the meaning given such term in Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" has the meaning given such term
in Section 2(a) hereof.
"FILING DATE" means (A) if no Registration Statement has been filed by
the Issuers pursuant to this Agreement, the 75th day after the Issue Date; and
(B) in any other case (which may be applicable notwithstanding the consummation
of the Exchange Offer), the 45th day after the delivery of a Shelf Notice as
required pursuant to Section 2(c) hereof; PROVIDED, HOWEVER, that if the Filing
Date would otherwise fall on a day that is not a Business Day, then the Filing
Date shall be the next succeeding Business Day.
"GUARANTEES" has the meaning given such term in the introductory
paragraphs hereto.
"GUARANTORS" has the meaning given such term in the introductory
paragraphs hereto.
"HOLDER" means any holder of a Registrable Note or Registrable Notes.
"INDENTURE" means the Indenture, dated as of October 15, 2004, among the
Issuers, the Guarantors and LaSalle Bank National Association, as Trustee,
pursuant to which the Securities are being issued, as amended or supplemented
from time to time in accordance with the terms thereof.
"INFORMATION" has the meaning given such term in Section 5(n) hereof.
"INITIAL PURCHASERS" has the meaning given such term in the introductory
paragraphs hereto.
"INITIAL SHELF REGISTRATION" has the meaning given such term in Section
3(a) hereof.
"INSPECTORS" has the meaning given such term in Section 5(n) hereof.
"ISSUE DATE" means October 15, 2004, the date of original issuance of the
Notes.
"ISSUERS" has the meaning given such term in the introductory paragraphs
hereto.
"NASD" has the meaning given such term in Section 5(r) hereof.
"NOTES" has the meaning given such term in the introductory paragraphs
hereto.
"PARTICIPANT" has the meaning given such term in Section 7(a) hereof.
"PARTICIPATING BROKER-DEALER" has the meaning given such term in Section
2(b) hereof.
"PERSON" means an individual, trustee, corporation, partnership, limited
liability company, joint stock company, trust, unincorporated association,
union, business association, firm or other legal entity.
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"PRIVATE EXCHANGE" has the meaning given such term in Section 2(b)
hereof.
"PRIVATE EXCHANGE NOTES" has the meaning given such term in Section 2(b)
hereof.
"PROSPECTUS" means the prospectus included in any Registration Statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
under the Securities Act and any term sheet filed pursuant to Rule 434 under the
Securities Act), as amended or supplemented by any prospectus supplement, and
all other amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
"PURCHASE AGREEMENT" has the meaning given such term in the introductory
paragraphs hereof.
"RECORDS" has the meaning given such term in Section 5(n) hereof.
"REGISTRABLE NOTES" means each Note (and the related Guarantee) upon its
original issuance and at all times subsequent thereto, each Exchange Note as to
which Section 2(c)(iv) hereof is applicable upon original issuance and at all
times subsequent thereto and each Private Exchange Note upon original issuance
thereof and at all times subsequent thereto, until, in each case, the earliest
to occur of (i) a Registration Statement (other than, with respect to any
Exchange Note as to which Section 2(c)(iv) hereof is applicable, the Exchange
Offer Registration Statement) covering such Note (and the related Guarantee),
Exchange Note or Private Exchange Note has been declared effective by the SEC
and such Note (and the related Guarantee), Exchange Note or such Private
Exchange Note, as the case may be, has been disposed of in accordance with such
effective Registration Statement, (ii) such Note (and the related Guarantee) has
been exchanged pursuant to the Exchange Offer for an Exchange Note or Exchange
Notes that may be resold without restriction under state and federal securities
laws, (iii) such Note (and the related Guarantee), Exchange Note or Private
Exchange Note, as the case may be, ceases to be outstanding for purposes of the
Indenture or (iv) such Note (and the related Guarantee), Exchange Note or
Private Exchange Note, as the case may be, may be resold without restriction
pursuant to Rule 144(k) (as amended or replaced) under the Securities Act.
"REGISTRATION STATEMENT" means any registration statement of the Issuers
that covers any of the Notes, the Exchange Notes or the Private Exchange Notes
(and the related guarantees) filed with the SEC 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.
"RULE 144" means Rule 144 under the Securities Act.
"RULE 144A" means Rule 144A under the Securities Act.
"RULE 405" means Rule 405 under the Securities Act.
"RULE 415" means Rule 415 under the Securities Act.
"RULE 424" means Rule 424 under the Securities Act.
"SEC" means the U.S. Securities and Exchange Commission. ---
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"SECURITIES" has the meaning given such term in the introductory
paragraphs hereof.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"SHELF NOTICE" has the meaning given such term in Section 2(c) hereof.
"SHELF REGISTRATION" has the meaning given such term in Section 3(b)
hereof.
"SHELF REGISTRATION STATEMENT" means any Registration Statement relating
to a Shelf Registration.
"SHELF SUSPENSION PERIOD" has the meaning given such term in Section 3(a)
hereof.
"SUBSEQUENT SHELF REGISTRATION" has the meaning given such term in
Section 3(b) hereof.
"TIA" means the Trust Indenture Act of 1939, as amended.
"TRUSTEE" means the trustee under the Indenture and the trustee (if any)
under any indenture governing the Exchange Notes and Private Exchange Notes (and
the related guarantees).
"UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING" means a registration
in which securities of one or more of the Issuers are sold to an underwriter for
reoffering to the public.
Except as otherwise specifically PROVIDED, all references in this
Agreement to acts, laws, statutes, rules, regulations, releases, forms,
no-action letters and other regulatory requirements (collectively, "REGULATORY
REQUIREMENTS") shall be deemed to refer also to any amendments thereto and all
subsequent Regulatory Requirements adopted as a replacement thereto having
substantially the same effect therewith; PROVIDED that Rule 144 shall not be
deemed to amend or replace Rule 144A.
2. EXCHANGE OFFER
(a) Unless the Exchange Offer would violate applicable law or any
applicable interpretation of the staff of the SEC, the Issuers shall file with
the SEC, no later than the Filing Date, a Registration Statement (the "EXCHANGE
OFFER REGISTRATION STATEMENT") on an appropriate registration form with respect
to a registered offer (the "EXCHANGE OFFER") to exchange any and all of the
Registrable Notes for a like aggregate principal amount of debt securities of
the Company and guarantees of the Guarantors (collectively, the "EXCHANGE
NOTES") that are, in each case, identical in all material respects to the
Securities, except that (i) the Exchange Notes shall contain no restrictive
legend thereon and (ii) interest thereon shall accrue from (A) the later of (1)
the last date on which interest was paid on the Notes or (2) if the Note is
surrendered for exchange on a date between the record date for interest payment
and that interest payment date, the interest payment date, or, (B) if no such
interest has been paid, from the Issue Date, and which are entitled to the
benefits of the Indenture or a trust indenture which is identical in all
material respects to the Indenture (other than such changes to the Indenture or
any such identical trust indenture as are necessary to comply with the TIA) and
which, in either case, has been qualified under the TIA. The Exchange Offer
shall comply with all applicable tender offer rules and regulations under the
Exchange Act and other applicable laws. The Issuers shall (x) use their
reasonable best efforts to cause the Exchange Offer Registration Statement to be
declared effective under the Securities Act on or before the Effectiveness Date;
(y) keep the Exchange Offer open for at least 30 days (or longer if required by
applicable law) after the date that notice of the Exchange Offer is mailed to
Holders; and (z) consummate the Exchange Offer on or prior to the 180th day
following the Issue Date.
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Each Holder (including, without limitation, each Participating
Broker-Dealer) who participates in the Exchange Offer will be required to
represent to the Company in writing (which may be contained in the applicable
letter of transmittal) that: (i) any Exchange Notes acquired in exchange for
Registrable Notes tendered are being acquired in the ordinary course of business
of the Person receiving such Exchange Notes, whether or not such recipient is
such Holder itself; (ii) at the time of the commencement or consummation of the
Exchange Offer, neither such Holder nor, to the actual knowledge of such Holder,
any other Person receiving Exchange Notes from such Holder has an arrangement or
understanding with any Person to participate in, the distribution of the
Exchange Notes in violation of the provisions of the Securities Act; (iii)
neither such Holder nor, to the actual knowledge of such Holder, any other
Person receiving Exchange Notes from such Holder is an "affiliate" (as defined
in Rule 405 under the Securities Act) of the Company or, if it is an affiliate
of the Company, it will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable and will provide
information to be included in the Shelf Registration Statement in accordance
with Section 5 hereof in order to have its Notes included in the Shelf
Registration Statement and benefit from the provisions regarding Additional
Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual
knowledge of such Holder, any other Person receiving Exchange Notes from such
Holder is engaging in or intends to engage in a distribution of the Exchange
Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has
acquired Registrable Notes as a result of market-making activities or other
trading activities and that it will comply with the applicable provisions of the
Securities Act (including, but not limited to, the prospectus delivery
requirements thereunder).
Upon consummation of the Exchange Offer in accordance with this Section
2, the provisions of this Agreement shall continue to apply, MUTATIS MUTANDIS,
solely with respect to Registrable Notes that are Private Exchange Notes,
Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes
held by Participating Broker-Dealers, and the Issuers shall have no further
obligation to register Registrable Notes (other than Private Exchange Notes,
Exchange Notes as to which Section 2(c)(iv) hereof applies and Exchange Notes
held by Participating Broker-Dealers) pursuant to Section 3 hereof.
No securities other than the Exchange Notes shall be included in the
Exchange Offer Registration Statement.
(b) The Issuers shall include within the Prospectus contained in the
Exchange Offer Registration Statement a section entitled "Plan of Distribution,"
reasonably acceptable to the Initial Purchasers, 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 broker-dealer that is the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of Exchange
Notes received by such broker-dealer in the Exchange Offer (a "PARTICIPATING
BROKER-DEALER"), whether such positions or policies have been publicly
disseminated by the staff of the SEC or such positions or policies represent the
prevailing views of the staff of the SEC. Such "Plan of Distribution" section
shall also expressly permit, to the extent permitted by applicable policies and
regulations of the SEC, the use of the Prospectus by all Persons subject to the
prospectus delivery requirements of the Securities Act, including, to the extent
permitted by applicable policies and regulations of the SEC, all Participating
Broker-Dealers, and include a statement describing the means by which
Participating Broker-Dealers may resell the Exchange Notes in compliance with
the Securities Act.
The Issuers shall use their 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 is necessary to comply with applicable
law in connection with any resale of the Exchange Notes; PROVIDED, HOWEVER, that
such period shall not be
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required to exceed 150 days or such longer period if extended pursuant to the
last paragraph of Section 5 hereof (the "APPLICABLE PERIOD").
If, prior to consummation of the Exchange Offer, the Initial Purchasers
hold any Securities acquired by them that have the status of an unsold allotment
in the initial distribution, the Issuers, upon the request of the Initial
Purchasers, shall simultaneously with the delivery of the Exchange Notes issue
and deliver to the Initial Purchasers, in exchange (the "PRIVATE EXCHANGE") for
such Securities held by any such Holder, a like principal amount of notes of the
Company and guarantees of the Guarantors (collectively, the "PRIVATE EXCHANGE
NOTES") that are, in each case, identical in all material respects to the
Exchange Notes except for the placement of a restrictive legend on such Private
Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same
indenture as the Exchange Notes and bear the same CUSIP number as the Exchange
Notes if permitted by the CUSIP Service Bureau.
In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record entitled
to participate in the Exchange Offer a copy of the Prospectus forming
part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(2) use their reasonable best efforts to keep the Exchange Offer
open for not less than 30 days after the date that notice of the Exchange
Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with
an address in the Borough of Manhattan, The City of
New York;
(4) permit Holders to withdraw tendered Securities at any time prior
to the close of business,
New York time, on the last Business Day on
which the Exchange Offer remains open; and
(5) otherwise comply in all material respects with all applicable
laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer
and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and
not validly withdrawn pursuant to the Exchange Offer and the Private
Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so
accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each
Holder of Securities, Exchange Notes or Private Exchange Notes, as the
case may be, equal in principal amount to the Securities of such Holder
so accepted for exchange; PROVIDED that, in the case of any Notes held in
global form by a depositary, authentication and delivery to such
depositary of one or more replacement Notes in global form in an
equivalent principal amount thereto for the account of such Holders in
accordance with the Indenture shall satisfy such authentication and
delivery requirement.
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The Exchange Offer and the Private Exchange shall not be subject to any
conditions, other than that (i) the Exchange Offer or Private Exchange, as the
case may be, does not violate applicable law or any applicable interpretation of
the staff of the SEC; (ii) no action or proceeding shall have been instituted or
threatened in any court or by any governmental agency which might materially
impair the ability of the Issuers to proceed with the Exchange Offer or the
Private Exchange, and no material adverse development shall have occurred in any
existing action or proceeding with respect to the Issuers; and (iii) all
governmental approvals which the Issuers deem necessary for the consummation of
the Exchange Offer or Private Exchange shall have been obtained.
The Exchange Notes and the Private Exchange Notes shall be issued under
(i) the Indenture or (ii) an indenture identical in all material respects to the
Indenture and which, in either case, has been qualified under the TIA or is
exempt from such qualification and shall provide that the Exchange Notes shall
not be subject to the transfer restrictions set forth in the Indenture. The
Indenture or such indenture shall provide that the Exchange Notes, the Private
Exchange Notes and the Notes shall vote and consent together on all matters as
one class and that none of the Exchange Notes, the Private Exchange Notes or the
Notes will have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing
interpretations of the staff of the SEC, the Issuers are not permitted to effect
the Exchange Offer, (ii) the Exchange Offer is not consummated within 180 days
of the Issue Date, (iii) the Initial Purchasers or any other holder of Private
Exchange Notes so requests in writing to the Company at any time after the
consummation of the Exchange Offer or (iv) in the case of any Holder that
participates in the Exchange Offer, such Holder does not receive Exchange Notes
on the date of the exchange that may be sold without restriction under state and
federal securities laws (other than due solely to the status of such Holder as
an affiliate of the Issuers within the meaning of the Securities Act) and so
notifies the Issuers within 60 days after the consummation of the Exchange
Offer, then in the case of each of clauses (i) to and including (iv) of this
sentence, the Issuers shall promptly deliver to the Holders and the Trustee
written notice thereof (the "SHELF NOTICE") and shall file a Shelf Registration
pursuant to Section 3 hereof.
3. SHELF REGISTRATION
If at any time a Shelf Notice is delivered as contemplated by Section
2(c) hereof, then:
(a) SHELF REGISTRATION. The Issuers shall file with the SEC a
Registration Statement for an offering to be made on a continuous basis pursuant
to Rule 415 covering all of the Registrable Notes (the "INITIAL SHELF
REGISTRATION"). The Issuers shall file with the SEC the Initial Shelf
Registration as promptly as practicable and, in any event, on or prior to the
applicable Filing Date. The Initial Shelf Registration shall be on Form S-3 or
another appropriate form permitting registration of such Registrable Notes for
resale by Holders in the manner or manners designated by them (including,
without limitation, one or more Underwritten Offerings). The Issuers shall not
permit any securities other than the Registrable Notes to be included in the
Initial Shelf Registration or any Subsequent Shelf Registration (as defined
below).
The Issuers shall use their reasonable best efforts to cause the Shelf
Registration to be declared effective under the Securities Act on or prior to
the Effectiveness Date and to keep the Initial Shelf Registration continuously
effective under the Securities Act until the date that is two years from the
Issue Date or such shorter period ending when all Registrable Notes covered by
the Initial Shelf Registration have been sold in the manner set forth and as
contemplated in the Initial Shelf Registration or, if applicable, a Subsequent
Shelf Registration (the "EFFECTIVENESS PERIOD"); PROVIDED, HOWEVER, that the
Effectiveness Period in respect of the Initial Shelf Registration shall be
extended to the extent required to permit dealers to comply with the applicable
prospectus delivery requirements of Rule 174 under the
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Securities Act and as otherwise provided herein and shall be subject to
reduction to the extent that the applicable provisions of Rule 144(k) are
amended or revised to reduce the two year holding period set forth therein.
Notwithstanding anything to the contrary in this Agreement, at any time, the
Company may delay the filing of any Shelf Registration Statement or delay or
suspend the effectiveness thereof or cease to permit the use of any related
Prospectus (including any amendment or supplement), for a reasonable period of
time, but not in excess of an aggregate of 60 days in any calendar year (a
"SHELF SUSPENSION PERIOD"), if the Board of Directors of the Company determines
in good faith that the filing of any such Shelf Registration Statement or the
continuing effectiveness thereof or the continued use of any such Prospectus (or
amendment or supplement) would require the disclosure of non-public material
information that would be detrimental to the Company if so disclosed or would
otherwise materially adversely affect a financing, acquisition, disposition,
merger or other material transaction.
(b) WITHDRAWAL OF STOP ORDERS; SUBSEQUENT SHELF REGISTRATIONS. If the
Initial Shelf Registration or any Subsequent Shelf Registration ceases to be
effective for any reason at any time during the Effectiveness Period (other than
because of the sale of all of the Securities registered thereunder), the Issuers
shall use their reasonable best efforts to obtain the prompt withdrawal of any
order suspending the effectiveness thereof, and in any event shall within 45
days of such cessation of effectiveness amend such Shelf Registration Statement
in a manner to obtain the withdrawal of the order suspending the effectiveness
thereof or file an additional Shelf Registration Statement pursuant to Rule 415
covering all of the Registrable Notes covered by and not sold under the Initial
Shelf Registration or an earlier Subsequent Shelf Registration (each, a
"SUBSEQUENT SHELF REGISTRATION"). If a Subsequent Shelf Registration is filed,
the Issuers shall use their reasonable best efforts to cause the Subsequent
Shelf Registration to be declared effective under the Securities Act as soon as
practicable after such filing and to keep such subsequent Shelf Registration
continuously effective for a period equal to the number of days in the
Effectiveness Period less the aggregate number of days during which the Initial
Shelf Registration or any Subsequent Shelf Registration was previously
continuously effective. As used herein the term "SHELF REGISTRATION" means the
Initial Shelf Registration and any Subsequent Shelf Registration.
(c) SUPPLEMENTS AND AMENDMENTS. The Issuers shall promptly supplement and
amend the Shelf Registration if required by the rules, regulations or
instructions applicable to the registration form used for such Shelf
Registration, if required by the Securities Act, or if reasonably requested by
the Holders of a majority in aggregate principal amount at maturity of the
Registrable Notes (or their counsel) covered by such Registration Statement with
respect to the information included therein with respect to one or more of such
Holders, or by any underwriter of such Registrable Notes with respect to the
information included therein with respect to such underwriter.
4. ADDITIONAL INTEREST
(a) The Issuers and the Initial Purchasers agree that the Holders will
suffer damages if the Issuers fail to fulfill their obligations under Section 2
or Section 3 hereof and that it would not be feasible to ascertain the extent of
such damages with precision. Accordingly, the Issuers agree to pay additional
interest on the Notes ("ADDITIONAL INTEREST") under the circumstances and to the
extent set forth below (each of which shall be given independent effect):
(i) if (A) neither the Exchange Offer Registration Statement nor the
Initial Shelf Registration has been filed on or prior to the Filing Date
applicable thereto or (B) notwithstanding that the Issuers have
consummated or will consummate the Exchange Offer, the Issuers are
required to file a Shelf Registration and such Shelf Registration is not
filed on or prior to the Filing Date applicable thereto, then, commencing
on the day after any such Filing Date, Additional Interest shall accrue
on the principal amount of the Notes at a rate of 0.25% per annum for the
first 90 days immediately following such applicable Filing Date, and such
Additional
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Interest rate shall increase by an additional 0.25% per annum at the
beginning of each subsequent 90-day period; or
(ii) if (A) neither the Exchange Offer Registration Statement nor
the Initial Shelf Registration is declared effective by the SEC on or
prior to the Effectiveness Date applicable thereto or (B) notwithstanding
that the Issuers have consummated or will consummate the Exchange Offer,
the Issuers are required to file a Shelf Registration and such Shelf
Registration is not declared effective by the SEC on or prior to the
Effectiveness Date applicable to such Shelf Registration, then,
commencing on the day after such Effectiveness Date, Additional Interest
shall accrue on the principal amount of the Notes at a rate of 0.25% per
annum for the first 90 days immediately following the day after such
Effectiveness Date, and such Additional Interest rate shall increase by
an additional 0.25% per annum at the beginning of each subsequent 90-day
period; or
(iii) if (A) the Issuers have not exchanged Exchange Notes for all
Securities 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
applicable, a Shelf Registration has been declared effective and such
Shelf Registration ceases to be effective at any time during the
Effectiveness Period, then Additional Interest shall accrue on the
principal amount of the Notes which are required to be registered under
the applicable Exchange Offer Registration Statement or Shelf
Registration Statement at a rate of 0.25% per annum for the first 90 days
commencing on the (x) 180th day after the Issue Date, in the case of (A)
above, or (y) the day such Shelf Registration ceases to be effective in
the case of (B) above, and such Additional Interest rate shall increase
by an additional 0.25% per annum at the beginning of each such subsequent
90-day period;
PROVIDED, HOWEVER, that the Additional Interest rate on the Notes may not accrue
under more than one of the foregoing clauses (i) to and including (iii) at any
one time and at no time shall the aggregate amount of additional interest
accruing exceed in the aggregate 1.0% per annum; PROVIDED, FURTHER, HOWEVER,
that (1) upon the filing of the applicable Exchange Offer Registration Statement
or the applicable Shelf Registration as required hereunder (in the case of
clause (i) of this Section 4), (2) upon the effectiveness of the Exchange Offer
Registration Statement or the applicable Shelf Registration Statement as
required hereunder (in the case of clause (ii) of this Section 4) or (3) upon
the exchange of the Exchange Notes for all Securities tendered (in the case of
clause (iii)(A) of this Section 4), or upon the effectiveness of the applicable
Shelf Registration Statement which had ceased to remain effective (in the case
of (iii)(B) of this Section 4), Additional Interest on the Notes in respect of
which such events relate as a result of such clause (or the relevant subclause
thereof), as the case may be, shall cease to accrue. Notwithstanding any other
provision of this Section 4, the Company shall not be obligated to pay
Additional Interest provided in Sections 4(a)(i)(B), 4(a)(ii)(B) or 4(a)(iii)(B)
during a Shelf Suspension Period permitted by Section 3(a) hereof. Each
reference in this Indenture to payment of interest due with respect to any Note
includes payment of any Additional Interest due with respect thereto.
(b) The Issuers shall notify the Trustee within one Business Day after
each and every date on which an event occurs in respect of which Additional
Interest is required to be paid (an "EVENT DATE"). Any amounts of Additional
Interest due pursuant to (a)(i), (a)(ii) or (a)(iii) of this Section 4 will be
payable in cash, in each case, semiannually on each April 15 and October 15 (to
the holders of record on the April 1 and October 1 immediately preceding such
dates), commencing with the first such date occurring after any such Additional
Interest commences to accrue. The amount of Additional Interest will be
determined by multiplying the applicable Additional Interest rate by the
principal amount of the Registrable Notes, multiplied by a fraction, the
numerator of which is the number of days such Additional Interest rate was
applicable during such period (determined on the basis of a 360-day year
comprised of
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twelve 30-day months and, in the case of a partial month, the actual number of
days elapsed), and the denominator of which is 360.
5. REGISTRATION PROCEDURES
In connection with the filing of any Registration Statement pursuant to
Section 2 or 3 hereof, the Issuers shall effect such registrations to permit the
sale of the securities covered thereby in accordance with the intended method or
methods of disposition thereof, and pursuant thereto and in connection with any
Registration Statement filed thereunder, the Issuers shall:
(a) Prepare and file with the SEC prior to the applicable Filing Date a
Registration Statement or Registration Statements as prescribed by Section 2 or
3 hereof, and use their reasonable best efforts to cause each such Registration
Statement to become effective and remain effective as provided herein; PROVIDED,
HOWEVER, that if (1) such filing is pursuant to Section 3 hereof or (2) a
Prospectus contained in the Exchange Offer Registration Statement filed pursuant
to Section 2 hereof is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period relating thereto from whom the Issuers have received prior
written notice that it will be a Participating Broker-Dealer in the Exchange
Offer, before filing any Registration Statement or Prospectus or any amendments
or supplements thereto the Issuers shall furnish to and afford the Holders of
the Registrable Notes covered by such Registration Statement (with respect to a
Registration Statement filed pursuant to Section 3 hereof) or each such
Participating Broker-Dealer (with respect to any such Registration Statement),
as the case may be, 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 (in each case at least five Business Days prior to
such filing). The Issuers shall not file any Registration Statement or
Prospectus or any amendments or supplements thereto if the Holders of a majority
in aggregate principal amount of the Registrable Notes covered by such
Registration Statement, their counsel, or the managing underwriters, if any,
shall reasonably object on a timely basis.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration Statement or Exchange Offer Registration
Statement, as the case may be, as may be necessary to keep such Registration
Statement continuously effective for the Effectiveness Period, the Applicable
Period or until consummation of the Exchange Offer, as the case may be; cause
the related Prospectus to be supplemented by any prospectus supplement required
by applicable law, and as so supplemented to be filed pursuant to Rule 424; and
comply with the provisions of the Securities Act and the Exchange Act applicable
to each of them with respect to the disposition of all securities covered by
such Registration Statement as so amended or in such Prospectus as so
supplemented and with respect to the subsequent resale of any securities being
sold by an Participating Broker-Dealer covered by any such Prospectus.
(c) If (1) a Shelf Registration is filed pursuant to Section 3 hereof, or
(2) a Prospectus contained in the Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period relating thereto from whom any Issuer has received written
notice that it will be a Participating Broker-Dealer in the Exchange Offer,
notify the selling Holders of Registrable Notes (with respect to a Registration
Statement filed pursuant to Section 3 hereof), or each such Participating
Broker-Dealer (with respect to any such Registration Statement), as the case may
be, their counsel and the managing underwriters, if any, promptly (but in any
event within one Business Day), and confirm such notice in writing, (i) when a
Prospectus or any prospectus supplement or post-effective amendment has been
filed, and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective under the Securities Act
(including in such notice a
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written statement that any Holder may, upon request, obtain, at the sole expense
of the Issuers, one conformed copy of such Registration Statement or
post-effective amendment including financial statements and schedules, documents
incorporated or deemed to be incorporated by reference and exhibits), (ii) of
the issuance by the SEC of any stop order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus or the initiation of any proceedings for that purpose,
(iii) if at any time when a Prospectus is required by the Securities Act to be
delivered in connection with sales of the Registrable Notes or resales of
Exchange Notes by Participating Broker-Dealers the representations and
warranties of the Issuers contained in any agreement (including any underwriting
agreement) contemplated by Section 5(m) hereof cease to be true and correct,
(iv) of the receipt by the Issuers of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the
Registrable Notes or the Exchange Notes to be sold by any Participating
Broker-Dealer for offer or sale in any jurisdiction, or the initiation or
threatening of any proceeding for such purpose, (v) of the happening of any
event, the existence of any condition or any information becoming known that
makes any statement made in such Registration Statement or related Prospectus or
any document incorporated or deemed to be incorporated therein by reference
untrue in any material respect or that requires the making of any changes in or
amendments or supplements to such Registration Statement, Prospectus or
documents so that, in the case of the Registration Statement, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and that in the case of the Prospectus, it will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading and (vi) of the
Issuers' determination that a post-effective amendment to a Registration
Statement would be appropriate.
(d) Use their reasonable best efforts to prevent the issuance of any
order suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of a Prospectus or suspending the qualification
(or exemption from qualification) of any of the Registrable Notes or the
Exchange Notes to be sold by any Participating Broker-Dealer, for sale in any
jurisdiction, and, if any such order is issued, to use their reasonable best
efforts to obtain the withdrawal of any such order at the earliest practicable
moment.
(e) If a Shelf Registration is filed pursuant to Section 3 and if
requested during the Effectiveness Period by the managing underwriter or
underwriters (if any), the Holders of a majority in aggregate principal amount
of the Registrable Notes being sold in connection with an underwritten offering
or any Participating Broker-Dealer, (i) as promptly as practicable incorporate
in a prospectus supplement or post-effective amendment such information as the
managing underwriter or underwriters (if any), such Holders, any Participating
Broker-Dealer or counsel for any of them reasonably request to be included
therein, (ii) make all required filings of such prospectus supplement or such
post-effective amendment as soon as practicable after the Company has received
notification of the matters to be incorporated in such prospectus supplement or
post-effective amendment, and (iii) supplement or make amendments to such
Registration Statement.
(f) If (1) a Shelf Registration is filed pursuant to Section 3 hereof, or
(2) a Prospectus contained in the Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, furnish to each selling Holder of Registrable Notes (with
respect to a Registration Statement filed pursuant to Section 3 hereof) and to
each such Participating Broker-Dealer who so requests (with respect to any such
Registration Statement) and to their respective counsel and each managing
underwriter, if any, at the sole expense of the Issuers, one conformed copy of
the Registration Statement or Registration Statements and each post-effective
amendment thereto,
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including financial statements and schedules, and, if requested, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3 hereof, or
(2) a Prospectus contained in the Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, deliver to each selling Holder of Registrable Notes (with
respect to a Registration Statement filed pursuant to Section 3 hereof), or each
such Participating Broker-Dealer (with respect to any such Registration
Statement), as the case may be, their respective counsel, and the underwriters,
if any, at the sole expense of the Issuers, as many copies of the Prospectus or
Prospectuses (including each form of preliminary prospectus) and each amendment
or supplement thereto and any documents incorporated by reference therein as
such Persons may reasonably request; and, subject to the last paragraph of this
Section 5, the Issuers hereby consent to the use of such Prospectus and each
amendment or supplement thereto by each of the selling Holders of Registrable
Notes or each such Participating Broker-Dealer, as the case may be, and the
underwriters or agents, if any, and dealers, if any, in connection with the
offering and sale of the Registrable Notes covered by, or the sale by
Participating Broker-Dealers of the Exchange Notes pursuant to, such Prospectus
and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes or any delivery of
a Prospectus contained in the Exchange Offer Registration Statement by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, use their reasonable best efforts to register or qualify, and
to cooperate with the selling Holders of Registrable Notes or each such
Participating Broker-Dealer, as the case may be, the managing underwriter or
underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Notes for offer and sale under the securities
or Blue Sky laws of such jurisdictions as any selling Holder, Participating
Broker-Dealer, or the managing underwriter or underwriters reasonably request in
writing; PROVIDED, HOWEVER, that where Exchange Notes held by Participating
Broker-Dealers or Registrable Notes are offered other than through an
underwritten offering, the Issuers agree to cause their counsel to perform Blue
Sky investigations and file registrations and qualifications required to be
filed pursuant to this Section 5(h), keep each such registration or
qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective and do any and all other
acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Exchange Notes held by Participating Broker-Dealers or the
Registrable Notes covered by the applicable Registration Statement; PROVIDED,
HOWEVER, that no Issuer shall be required to (A) qualify generally to do
business in any jurisdiction where it is not then so qualified, (B) take any
action that would subject it to general service of process in any such
jurisdiction where it is not then so subject or (C) subject itself to taxation
in excess of a nominal dollar amount in any such jurisdiction where it is not
then so subject.
(i) If a Shelf Registration is filed pursuant to Section 3 hereof,
cooperate with the selling Holders of Registrable Notes and the managing
underwriter or underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Exchange Notes to be sold, which
certificates shall not bear any restrictive legends and shall be in a form
eligible for deposit with The Depository Trust Company; and enable such Exchange
Notes to be in such denominations (subject to applicable requirements contained
in the Indenture) and registered in such names as the managing underwriter or
underwriters, if any, or Holders may request.
(j) If (1) a Shelf Registration is filed pursuant to Section 3 hereof, or
(2) a Prospectus contained in the Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, upon the occurrence of any event contemplated by
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paragraph 5(c)(v) or 5(c)(vi) hereof, as promptly as practicable prepare and
(subject to Section 5(a) hereof) file with the SEC, at the sole expense of the
Issuers, a supplement or post-effective amendment to the Registration Statement
or a supplement to the related Prospectus or any document incorporated or deemed
to be incorporated therein by reference, or file any other required document so
that, as thereafter delivered to the purchasers of the Registrable Notes being
sold thereunder (with respect to a Registration Statement filed pursuant to
Section 3 hereof) or to the purchasers of the Exchange Notes to whom such
Prospectus will be delivered by a Participating Broker-Dealer (with respect to
any such Registration Statement), any such Prospectus will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(k) Use their reasonable best efforts to cause the Registrable Notes
covered by a Registration Statement or the Exchange Notes, as the case may be,
to be rated with the appropriate rating agencies, if so requested by the Holders
of a majority in aggregate principal amount of Registrable Notes covered by such
Registration Statement or the Exchange Notes, as the case may be, or the
managing underwriter or underwriters, if any.
(l) Prior to the effective date of the first Registration Statement
relating to the Registrable Notes, (i) provide the Trustee with certificates for
the Exchange Notes in a form eligible for deposit with The Depository Trust
Company and (ii) provide a CUSIP number for the Exchange Notes.
(m) In connection with any underwritten offering of Registrable Notes
pursuant to a Shelf Registration, enter into an underwriting agreement as is
customary in underwritten offerings of debt securities similar to the
Securities, and take all such other actions as are reasonably requested by the
managing underwriter or underwriters in order to expedite or facilitate the
registration or the disposition of such Registrable Notes and, in such
connection, (i) make such representations and warranties to, and covenants with,
the underwriters with respect to the business of the Issuers (including any
acquired business, properties or entity, if applicable), 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 of debt securities similar to
the Securities, and confirm the same in writing if and when requested; (ii)
obtain the written opinions of counsel to the Issuers, and written updates
thereof in form, scope and substance reasonably satisfactory to the managing
underwriter or underwriters, addressed to the underwriters covering the matters
customarily covered in opinions reasonably requested in underwritten offerings;
(iii) obtain "cold comfort" letters and updates thereof in form, scope and
substance reasonably satisfactory to the managing underwriter or underwriters
from the independent certified public accountants of the Issuers (and, if
necessary, any other independent certified public accountants of the Issuers, or
of any business acquired by the Issuers, for which financial statements and
financial data are, or are required to be, included or incorporated by reference
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 of
debt securities similar to the Securities; and (iv) if an underwriting agreement
is entered into, the same shall contain indemnification provisions and
procedures no less favorable to the sellers and underwriters, if any, than those
set forth in Section 7 hereof (or such other provisions and procedures
reasonably acceptable to Holders of a majority in aggregate principal amount of
Registrable Notes covered by such Registration Statement and the managing
underwriter or underwriters or agents, if any). The above shall be done at each
closing under such underwriting agreement, or as and to the extent required
thereunder.
(n) If (1) a Shelf Registration is filed pursuant to Section 3 hereof, or
(2) a Prospectus contained in the Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell
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Exchange Notes during the Applicable Period, make available for inspection by
any Initial Purchaser, any selling Holder of such Registrable Notes being sold
(with respect to a Registration Statement filed pursuant to Section 3 hereof),
or each such Participating Broker-Dealer (with respect to any such Registration
Statement), as the case may be, any underwriter participating in any such
disposition of Registrable Notes, if any, and any attorney, accountant or other
agent retained by any such selling Holder or each such Participating
Broker-Dealer, as the case may be, or underwriter (any such Initial Purchasers,
Holders, Participating Broker-Dealers, underwriters, attorneys, accountants or
agents, collectively, the "INSPECTORS"), upon written request, at the offices
where normally kept, during reasonable business hours, all pertinent financial
and other records, pertinent corporate documents and instruments of the Issuers
and subsidiaries of Issuers (collectively, the "RECORDS"), as shall be
reasonably necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, directors and employees of the Issuers
and any of their respective subsidiaries to supply all information
("INFORMATION") reasonably requested by any such Inspector in connection with
such due diligence responsibilities. Each Inspector shall agree in writing that
it will keep the Records and Information confidential and that it will not
disclose any of the Records or Information that any Issuer determines, in good
faith, to be confidential and notifies the Inspectors in writing are
confidential unless (i) the disclosure of such Records or Information is
necessary to avoid or correct a misstatement or omission in such Registration
Statement or Prospectus that the Issuers would be required to correct or avoid
pursuant to the terms of this Agreement, (ii) the release of such Records or
Information is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction, or (iii) the information in such Records or Information
has been made generally available to the public other than by an Inspector or an
"affiliate" (as defined in Rule 405) thereof; PROVIDED, HOWEVER, that prior
notice shall be provided as soon as practicable to any Issuer of the potential
disclosure of any information by such Inspector pursuant to clauses (i) or (ii)
of this sentence to permit the Issuers to obtain a protective order (or waive
the provisions of this paragraph (m)) and that such Inspector shall take such
actions as are reasonably necessary to protect the confidentiality of such
information (if practicable) to the extent such action is otherwise not
inconsistent with, an impairment of or in derogation of the rights and interests
of the Holder or any Inspector.
(o) Provide an indenture trustee for the Registrable Notes or the
Exchange Notes, as the case may be, and cause the Indenture or the trust
indenture provided for in Section 2(a) hereof, as the case may be, to be
qualified under the TIA not later than the effective date of the first
Registration Statement relating to the Registrable Notes; and in connection
therewith, cooperate with the trustee under any such indenture and the Holders
of the Registrable Notes, to effect such changes (if any) to such indenture as
may be required for such indenture to be so qualified in accordance with the
terms of the TIA; and execute, and use their reasonable best efforts to cause
such 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 indenture to be so qualified in a timely manner.
(p) Comply with all applicable rules and regulations of the SEC and make
generally available to its securityholders with regard to any applicable
Registration Statement, a consolidated earning statement 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 fiscal quarter (or 90 days after the end of any 12-month
period if such period is a fiscal year) (i) commencing at the end of any fiscal
quarter in which Registrable Notes 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.
(q) Upon consummation of the Exchange Offer or a Private Exchange, obtain
an opinion of counsel for the Issuers, in a form customary for underwritten
transactions, addressed to the Trustee for the benefit of all Holders of
Registrable Notes participating in the Exchange Offer or the
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Private Exchange, as the case may be, that (i) the Exchange Notes or Private
Exchange Notes, as the case may be, and the related indenture constitute legal,
valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms, subject to customary exceptions and qualifications,
and the Exchange Notes and Private Exchange Notes are entitled to the benefits
of the Indenture and (ii) the guarantees constitute legal, valid and binding
obligations of the Guarantors, enforceable against the Guarantors in accordance
with their terms, subject to customary exception and qualifications, and the
guarantees are entitled to the benefits of the Indenture. If the Exchange Offer
or a Private Exchange is to be consummated, upon delivery of the Registrable
Notes by Holders to the Company (or to such other Person as directed by the
Company), in exchange for the Exchange Notes or the Private Exchange Notes, as
the case may be, the Issuers shall xxxx, or cause to be marked, on such
Registrable Notes that such Registrable Notes are being cancelled in exchange
for the Exchange Notes or the Private Exchange Notes, as the case may be; in no
event shall such Registrable Notes be marked as paid or otherwise satisfied.
(r) Cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Notes and their respective counsel in connection
with any filings required to be made with the National Association of Securities
Dealers, Inc. (the "NASD").
(s) Use their reasonable best efforts to take all other steps necessary
to effect the registration of the Exchange Notes and/or Registrable Notes
covered by a Registration Statement contemplated hereby.
The Issuers may require each seller of Registrable Notes as to which any
registration is being effected to furnish to the Issuers such information
regarding such seller and the distribution of such Registrable Notes as the
Issuers may, from time to time, reasonably request. The Issuers may exclude from
such registration the Registrable Notes of any seller so long as such seller
fails to furnish such information within a reasonable time after receiving such
request. Each seller as to which any Shelf Registration is being effected agrees
to furnish promptly to the Issuers all information required to be disclosed in
order to make the information previously furnished to the Issuers by such seller
not materially misleading.
If any such Registration Statement refers to any Holder by name or
otherwise as the holder of any securities of the Company, then such Holder shall
have the right to require (i) the insertion therein of language, in form and
substance reasonably satisfactory to such Holder, to the effect that the holding
by such Holder of such securities is not to be construed as a recommendation by
such Holder of the investment quality of the securities covered thereby and that
such holding does not imply that such Holder will assist in meeting any future
financial requirements of the Company, or (ii) in the event that such reference
to such Holder by name or otherwise is not required by the Securities Act or any
similar federal statute then in force, the deletion of the reference to such
Holder in any amendment or supplement to the Registration Statement filed or
prepared subsequent to the time that such reference ceases to be required.
Each Holder of Registrable Notes and each Participating Broker-Dealer
agrees by its acquisition of such Registrable Notes or Exchange Notes to be sold
by such Participating Broker-Dealer, as the case may be, that, upon actual
receipt of any notice from the Company of the happening of any event of the kind
described in Section 5(c)(ii), 5(c)(iv), 5(c)(v), or 5(c)(vi) hereof, such
Holder will forthwith discontinue disposition of such Registrable Notes covered
by such Registration Statement or Prospectus or Exchange Notes to be sold by
such Holder or Participating Broker-Dealer, as the case may be, until such
Holder's or Participating Broker-Dealer's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 5(j) hereof, or until
it is advised in writing (the "ADVICE")
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by the Issuers that the use of the applicable Prospectus may be resumed, and has
received copies of any amendments or supplements thereto. In the event that the
Issuers shall give any such notice, each of the Applicable Period and the
Effectiveness Period shall be extended (but, in the case of the Effectiveness
Period, not beyond the second anniversary of the Issue Date) by the number of
days during such periods from and including the date of the giving of such
notice to and including the date when each seller of Registrable Notes covered
by such Registration Statement or Exchange Notes to be sold by such
Participating Broker-Dealer, as the case may be, shall have received (x) the
copies of the supplemented or amended Prospectus contemplated by Section 5(j)
hereof or (y) the Advice.
6. REGISTRATION EXPENSES
All fees and expenses incident to the performance of or compliance with
this Agreement shall be borne by the Company, whether or not the Exchange Offer
Registration Statement or any Shelf Registration Statement is filed or becomes
effective or the Exchange Offer is consummated, including, without limitation,
(i) all registration and filing fees (including, without limitation, (A) fees
with respect to filings required to be made with the NASD in connection with an
underwritten offering and (B) fees and expenses of compliance with state
securities or Blue Sky laws (including, without limitation, fees and
disbursements of counsel in connection with Blue Sky qualifications of the
Registrable Notes or Exchange Notes and determination of the eligibility of the
Registrable Notes or Exchange Notes for investment under the laws of such
jurisdictions (x) where the holders of Registrable Notes are located, in the
case of the Exchange Notes, or (y) as provided in Section 5(h) hereof, in the
case of Registrable Notes or Exchange Notes to be sold by a Participating
Broker-Dealer during the Applicable Period)), (ii) printing expenses, including,
without limitation, expenses of printing certificates for Registrable Notes or
Exchange Notes in a form eligible for deposit with The Depository Trust Company
and of printing Prospectuses if the printing of Prospectuses is requested by the
managing underwriter or underwriters, if any, by the Holders of a majority in
aggregate principal amount of the Registrable Notes included in any Registration
Statement or in respect of Registrable Notes or Exchange Notes to be sold by any
Participating Broker-Dealer during the Applicable Period, as the case may be,
(iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of
counsel for the Issuers and, in the case of a Shelf Registration, reasonable
fees and disbursements of one special counsel for all of the sellers of
Registrable Notes selected by the Holders of a majority in aggregate principal
amount of Registrable Notes covered by such Shelf Registration (exclusive of any
counsel retained pursuant to Section 7 hereof), (v) fees and disbursements of
all independent certified public accountants referred to in Section 5(m)(iii)
hereof (including, without limitation, the expenses of any "comfort" letters
required by or incident to such performance), (vi) Securities Act liability
insurance, if the Issuers desire such insurance, (vii) fees and expenses of all
other Persons retained by the Issuers, (viii) internal expenses of the Issuers
(including, without limitation, all salaries and expenses of officers and
employees of the Issuers performing legal or accounting duties), (ix) the
expense of any annual audit, (x) any fees and expenses incurred in connection
with the listing of the securities to be registered on any securities exchange,
and the obtaining of a rating of the securities, in each case, if applicable and
(xi) the expenses relating to printing, word processing and distributing all
Registration Statements, underwriting agreements, indentures and any other
documents necessary in order to comply with this Agreement.
7. INDEMNIFICATION AND CONTRIBUTION
(a) Each of the Issuers agree, jointly and severally, to indemnify and
hold harmless each Holder of Registrable Notes, each Participating Broker-Dealer
selling Exchange Notes during the Applicable Period and each underwriter who
participates in an offering of Registrable Notes (each, a "PARTICIPANT"), their
respective directors and officers and each Person, if any, who controls such
Person or its affiliates within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act against any losses, claims, damages or
liabilities to which any Participant or any such director, officer or
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controlling person may become subject under the Securities Act, the Exchange Act
or otherwise, insofar as any such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement (or any amendment thereto)
or Prospectus (as amended or supplemented if the Issuers shall have
furnished any amendments or supplements thereto) or any preliminary
prospectus; or
(ii) the omission or alleged omission to state, (a) in any
Registration Statement (or any amendment thereto), a material fact
required to be stated therein or necessary to make the statements therein
not misleading or (b) in any Prospectus (as amended or supplemented if
the Issuers shall have furnished any amendments or supplements thereto)
or any preliminary prospectus or any amendment or supplement thereto, a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
and will reimburse, as incurred, the Participant or any such director, officer
or controlling person for any legal or other expenses reasonably incurred by
such party in connection with investigating, defending against or appearing as a
third-party witness in connection with any such loss, claim, damage, liability
or action; provided, HOWEVER, the Issuers will not be liable in any such case to
the extent that any such loss, claim, damage, or liability arises out of or is
based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in any Registration Statement (or any amendment thereto)
or Prospectus (as amended or supplemented if the Issuers shall have furnished
any amendments or supplements thereto) or any preliminary prospectus in reliance
upon and in conformity with information relating to any Participant furnished to
the Issuers by such Participant specifically for use therein.
(b) Each Participant, severally and not jointly, agrees to indemnify and
hold harmless each of the Issuers, their respective directors, officers and each
Person, if any, who controls any of the Issuers within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act against any losses,
claims, damages or liabilities to which any of the Issuers or any such director,
officer or controlling person may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained
in any Registration Statement or Prospectus, any amendment or supplement
thereto, or any preliminary prospectus, or (ii) the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information concerning such Participant, furnished to
the Issuers by the Participant, specifically for use therein; and subject to the
limitation set forth immediately preceding this clause, will reimburse, as
incurred, any legal or other expenses reasonably incurred by the Issuers or any
such director, officer or controlling person in connection with investigating or
defending against or appearing as a third party witness in connection with any
such loss, claim, damage, liability or action in respect thereof.
(c) Promptly after receipt by an indemnified party under this Section 7
of notice of the commencement of any action for which such indemnified party is
entitled to indemnification under this Section 7, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party under
this Section 7, notify the indemnifying party of the commencement thereof in
writing; PROVIDED, HOWEVER, the omission to so notify the indemnifying party
will not relieve the indemnifying party with respect to any indemnity which may
be sought hereunder to the extent the indemnifying party is not materially
prejudiced as a result thereof, and in any event shall not relieve it
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from any liability which it may have otherwise than on account of this indemnity
agreement. In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party; PROVIDED, HOWEVER, that if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party, then the indemnifying
party shall not have the right to direct the defense of such action on behalf of
such indemnified party or parties and such indemnified party or parties shall
have the right to select separate counsel to defend such action on behalf of
such indemnified party or parties. After notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof and
approval by such indemnified party of counsel appointed to defend such action,
the indemnifying party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof, unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the immediately preceding
sentence (it being understood, however, that in connection with such action the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to local counsel) in any one action or separate
but substantially similar actions in the same jurisdiction arising out of the
same general allegations or circumstances, designated by Participants who sold a
majority in interest of the Registrable Notes and Exchange Notes sold by all
such Participants in the case of paragraph (a) of this Section 7, representing
the indemnified parties under such paragraph (a) who are parties to such action
or actions) or (ii) the indemnifying party has authorized in writing the
employment of counsel for the indemnified party at the expense of the
indemnifying party. All fees and expenses reimbursed pursuant to this paragraph
(c) shall be reimbursed as they are incurred. After such notice from the
indemnifying party to such indemnified party, the indemnifying party will not be
liable for the costs and expenses of any settlement of such action effected by
such indemnified party without the consent of the indemnifying party. No
indemnifying party or parties shall, without the prior written consent of the
indemnified party or parties, settle or compromise or consent to the entry of
any judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnification may be sought hereunder by such indemnified
party (whether or not such indemnified party is a party to such claim, action or
proceeding), unless (1) such settlement, compromise or consent (A) includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding and (B) does not include any statement
as to an admission of fault, culpability or failure to act by or on behalf of
any indemnified party.
(d) In circumstances in which the indemnity agreement provided for in the
preceding paragraphs of this Section 7 is unavailable to, or insufficient to
hold harmless, an indemnified party in respect of any losses, claims, damages or
liabilities (or actions in respect thereof), each indemnifying party, in order
to provide for just and equitable contribution, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative fault of the indemnifying party or parties
on the one hand and the indemnified party on the other in connection with the
statements or omissions or alleged statements or omissions that resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative fault of the
parties 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 Issuers
or such Participant, the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission or
alleged statement or omission, and any other equitable considerations
appropriate in the circumstances. The parties agree that it would not be
equitable if the amount of such contribution were determined by pro rata or per
capita
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allocation or by any other method of allocation that does not take into account
the equitable considerations referred to above in this paragraph (d).
Notwithstanding any other provision of this paragraph (d), no Participant shall
be obligated to make contributions hereunder that in the aggregate exceed the
total net profit received by such Participant in connection with the sale of the
Registrable Notes, less the aggregate amount of any damages that such
Participant has otherwise been required to pay in respect of the same or any
substantially similar claim, and 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 Participants' obligations to contribute
pursuant to this paragraph (d) are several and not joint. For purposes of this
paragraph (d), each director or officer of a Participant and each Person, if
any, who controls a Participant 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 Participants, and each director of any of the Issuers, each
officer of the Issuers and each Person, if any, who controls any of the Issuers
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 Issuers.
(e) The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party of law or in equity.
8. RULES 144 AND 144A
Each of the Issuers covenants and agrees that it will file the reports
required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the SEC thereunder in a timely manner in
accordance with the requirements of the Securities Act and the Exchange Act and,
if at any time such Issuer is not required to file such reports, such Issuer
will, upon the request of any Holder or beneficial owner of Registrable Notes,
make available such information necessary to permit sales pursuant to Rule 144A.
The Company further covenants and agrees, for so long as any Registrable Notes
remain outstanding that it will take such further action as any Holder of
Registrable Notes may reasonably request, all to the extent required from time
to time to enable such holder to sell Registrable Notes without registration
under the Securities Act within the limitation of the exemptions provided by
Rule 144(k) under the Securities Act and Rule 144A.
9. UNDERWRITTEN REGISTRATIONS
If any of the Registrable Notes covered by any Shelf Registration are to
be sold in an Underwritten Offering, the investment banker or investment bankers
and manager or managers that will manage the offering will be selected by the
Holders of a majority in aggregate principal amount of such Registrable Notes
included in such offering and shall be reasonably acceptable to the Issuers.
No Holder of Registrable Notes may participate in any Underwritten
Registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Notes 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 required under the terms of such
underwriting arrangements.
10. MISCELLANEOUS
(a) NO INCONSISTENT AGREEMENTS. The Issuers have not, as of the date
hereof, and shall not, after the date of this Agreement, enter into any
agreement with respect to any of its securities that is inconsistent with the
rights granted to the Holders of Registrable Notes 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 Issuers' other issued
-19-
and outstanding securities under any such agreements. The Issuers will not enter
into any agreement with respect to any of its securities which will grant to any
Person piggy-back registration rights with respect to any Registration
Statement.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, otherwise than with the prior written
consent of (i) the Company, and (ii) (A) the Holders of not less than a majority
in aggregate principal amount of the then outstanding Registrable Notes and (B)
in circumstances that would adversely affect the Participating Broker-Dealers,
the Participating Broker-Dealers holding not less than a majority in aggregate
principal amount of the Exchange Notes held by all Participating Broker-Dealers;
PROVIDED, HOWEVER, that Section 7 and this Section 10(c) may not be amended,
modified or supplemented without the prior written consent of each Holder and
each Participating Broker-Dealer (including any person who was a Holder or
Participating Broker-Dealer of Registrable Notes or Exchange Notes, as the case
may be, disposed of pursuant to any Registration Statement) affected by any such
amendment, modification or supplement. Notwithstanding the foregoing, a waiver
or consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders of Registrable Notes whose
securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect, impair, limit or compromise the rights of other
Holders of Registrable Notes may be given by Holders of at least a majority in
aggregate principal amount of the Registrable Notes being sold pursuant to such
Registration Statement.
(c) NOTICES. All notices and other communications (including, without
limitation, any notices or other communications to the Trustee) provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or facsimile:
(i) if to a Holder of the Registrable Notes or any Participating
Broker-Dealer, at the most current address of such Holder or
Participating Broker-Dealer, as the case may be, set forth on the records
of the registrar under the Indenture, with a copy in like manner to the
Initial Purchasers as follows:
Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Corporate Finance Department
and
UBS Securities LLC
000 Xxxxxxxxxx Xxxx.
Xxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Fixed Income Syndicate
and
Wachovia Capital Markets, LLC
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
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with a copy to:
Xxxxxxxx Chance US LLP
00 Xxxx 00xx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxxx Xxxxxx, Esq.
(ii) if to the Initial Purchasers, at the address specified in
Section 10(d)(i);
(iii) if to the Company, at the address as follows:
Heritage Property Investment Trust, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Chief Executive Officer, with a copy to Corporate
Counsel
with a copy to:
Xxxxxxx XxXxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; one Business Day after
being timely delivered to a next-day air courier; and upon written confirmation,
if sent by facsimile.
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 and in the manner specified in such Indenture.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties hereto,
the Holders and the Participating Broker-Dealers; PROVIDED, HOWEVER, that
nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Registrable Notes in violation of the terms of the Purchase
Agreement or the Indenture.
(e) 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.
(f) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, AS
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APPLIED TO CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF
NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW THAT WOULD REQUIRE THE
APPLICATION OF ANY OTHER LAW.
(h) SEVERABILITY. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their best efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
(i) NOTES HELD BY THE ISSUERS OR THEIR RESPECTIVE AFFILIATES. Whenever
the consent or approval of Holders of a specified percentage of Registrable
Notes is required hereunder, Registrable Notes held by the Issuers or their
respective affiliates (as such term is defined in Rule 405 under the Securities
Act) shall not be counted in determining whether such consent or approval was
given by the Holders of such required percentage.
(j) THIRD-PARTY BENEFICIARIES. Holders of Registrable Notes and
Participating Broker-Dealers are intended third-party beneficiaries of this
Agreement, and this Agreement may be enforced by such Persons.
(k) ENTIRE AGREEMENT. This Agreement, together with the Purchase
Agreement and the Indenture, is intended by the parties as a final and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein and any and all prior oral or
written agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Holders on the one hand
and the Issuers on the other, or between or among any agents, representatives,
parents, subsidiaries, affiliates, predecessors in interest or successors in
interest with respect to the subject matter hereof and thereof are merged herein
and replaced hereby.
[The remainder of the page has been intentionally left blank.]
-22-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
HERITAGE PROPERTY INVESTMENT TRUST, INC.
By:/s/ XXXXXX X. XXXXXXXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: President and Chief Executive
Officer
HERITAGE PROPERTY INVESTMENT LIMITED
PARTNERSHIP
By: Heritage Property Investment
Trust, Inc., its General Partner
By: /s/ XXXXXX X. XXXXXXXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: President and Chief Executive
Officer
XXXXXXX OPERATING LIMITED PARTNERSHIP
By: Heritage-Xxxxxx Acquisition, Inc.,
its General Partner
By: /s/ XXXXXX X. XXXXXXXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: President and Chief Executive
Officer
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
DEUTSCHE BANK SECURITIES INC.
UBS SECURITIES LLC
WACHOVIA CAPITAL MARKETS, LLC
By: DEUTSCHE BANK SECURITIES INC.
By: /s/ XXXXX XXXXX
----------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
By: /s/ XXXX XXXX
----------------------------------
Name: Xxxx Xxxx
Title: Director
By: UBS SECURITIES LLC
By: /s/ XXXXX XXXXXXX
----------------------------------
Name: Xxxxx Xxxxxxx
Title Director
By: /s/ XXXX XXXXXXX
----------------------------------
Name: Xxxx Xxxxxxx
Title Associate Director
By: WACHOVIA CAPITAL MARKETS, LLC
By: /s/ XXXXXX XXX
----------------------------------
Name: Xxxxxx Xxx
Title Director
The Initial Purchasers.
