SUBSCRIPTION AGENT AGREEMENT
Exhibit
99.9
This Subscription Agent Agreement (the
"Agreement") is made as of March 7, 2008, by and among Centerline Holding
Company (the
"Company"), Computershare Inc., a Delaware corporation, and its fully owned
subsidiary Computershare Trust Company, N.A., a national banking (collectively,
the “Agent” or
individually “Computershare” and the “Trust Company”,
respectively). All terms not defined herein shall have the
meaning given in the prospectus (the "Prospectus") filed as part of the shelf
registration statement on Form S-3, File No. 333-120077, filed by the Company
with the Securities and Exchange Commission (the “SEC”) on October 29, 2004, as
amended by Pre-Effective Amendment No. 1 filed with the SEC on February 25, 2006
respect thereto (the "Registration Statement"), which Registration Statement was
declared effective by the SEC on March 1, 2005.
WHEREAS, the Company proposes to make a
subscription offer by issuing certificates or other evidences of subscription
rights, in the form designated by the Company (the "Subscription Certificates")
to the holders (other than Related Special Assets LLC, Xxxxxxx X. Xxxx, Xxxx
Xxxx, Related General II L.P. or any Affiliates of the foregoing
(collectively, “Related”)) (collectively, the “Equity Security Holders”) of the
following equity securities of the Company:
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the
Company’s Common Shares (including any restricted Common
Shares),
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vested
options exercisable for Common
Shares,
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Convertible
Community Reinvestment Act Preferred
Shares,
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Series
A Convertible Community Reinvestment Act Preferred
Shares,
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4.40%
Cumulative Perpetual Convertible Community Reinvestment Act Preferred
Shares, Series A-1,
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Special
Preferred Voting Shares (which for this purpose includes, as a single
class of securities with
the special preferred voting shares, the Special Common Units Issued by
Centerline Capital Company
LLC, one of the Company’s Affiliates),
and
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Special
Common Interests issued by Centerline Investors I LLC, another one of the
Company’s Affiliates
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(collectively,
the “Trust Securities” and individually, a “Trust Security”), as of a record
date specified by the Company (the "Record Date"), pursuant to which each Equity
Security Holder will receive one right (collectively, the "Rights") to subscribe
for shares of the Company’s 11% Cumulative Convertible Preferred Shares, Series
A-1 (the “Convertible Preferred Shares”), for each Common Share held by such
Equity Security Holder, or that would be issuable to such Equity Security Holder
upon conversion or exercise of Trust Securities, all as described in and upon
such terms as are set forth in the Prospectus, a final copy of which has been
or, upon availability will promptly be, delivered to the Agent; for purposes of
this Agreement; For purposes of this Agreement, “Affiliate” of an entity shall
mean (i) any officer, director, partner, employee or controlling shareholder of
such
entity;
(ii) any person controlling, controlled by or under common control with any
entity or any individual described in (i) above; (iii) any officer, director,
trustee, general partner or employee of any person described in (ii) above; and
(iv) any person who is a member, other than as limited partner, with any
individual described in (i) and (ii) above in a relationship of joint venture,
general partnership, or similar form of unincorporated business association;
provided, however, that for purposes of this whereas clause and the Rights
offering only, “Affiliates” shall not include officers, directors, trustees or
employees of the Company or its Subsidairies, other than Xxxxxxx X. Xxxx and
Xxxx Xxxx; and
WHEREAS, the Company wishes the Agent
to perform certain acts on behalf of the Company, and the Agent is willing to so
act, in connection with the distribution of the Subscription Certificates and
the issuance and exercise of the Rights to subscribe therein set forth, all upon
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the
foregoing and of the mutual agreements set forth herein, the parties agree as
follows:
1.
Appointment.
The Company hereby appoints the Agent
to act as subscription agent in connection with the distribution of Subscription
Certificates and the issuance and exercise of the Rights in accordance with the
terms set forth in this Agreement and the Agent hereby accepts such
appointment.
2.
Form and Execution of
Subscription Certificates.
A. Each Subscription
Certificate shall be irrevocable and non-transferable. The Agent
shall, in its capacity as Transfer Agent of the Company, maintain a register of
Subscription Certificates and the holders of record thereof (each of whom shall
be deemed an "Equity Security Holder" hereunder for purposes of determining the
rights of holders of Subscription Certificates). Each Subscription
Certificate shall, subject to the provisions thereof, entitle the Equity
Security Holder in whose name it is recorded to the following:
(1) With respect to Record
Date Equity Security Holders only, the right to acquire during the Subscription
Period, as defined in the Prospectus, at $11.70 (the “Subscription Price”),
one Convertible Preferred Share for every six (6) Rights with no
over-subcription rights (the " Subscription Right").
3.
Rights and
Issuance of Subscription Certificates.
A. Each Subscription
Certificate shall evidence the Rights of the Equity Security Holder therein
named to purchase Convertible Preferred Shares upon the terms and conditions
therein and herein set forth.
B. Upon the written advice
of the Company, signed by any of its duly authorized officers, as to the Record
Date, the Agent shall prepare and record Subscription Certificates in the names
of the Equity Security Holders, setting forth the number of Rights to subscribe
for Convertible Preferred Shares calculated on the basis of one Right for each
Common Share held by such Equity Security Holder, or that would be issuanble to
such Equity Security Holder upon conversion or exercise of
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Trust
Securities, recorded on the books in the name of each such Equity Security
Holder as of the Record Date: (i) from a list of the Equity Security Holders as
of the Record Date, with respect to the Company’s Common Shares (including
restricted Common Shares) and vested options exercisable for Common Shares, prepared by the Agent in its
capacity as Transfer Agent for such Trust Securities, and (ii) from a list of
the Equity Security Holders as of the Record Date, with respect to all other
Trust Securities, prepared by the Company. The number of Rights that
are issued to Equity Security Holders as of the Record Date will be rounded
down, by the Agent, to the nearest whole number of Rights as fractional
Rights will not be
issued. Each Subscription Certificate shall be dated as of the Record
Date and shall be executed by the Subscription Agent. When instructed
by the Company, the Agent shall promptly deliver the Subscription Certificates,
together with a copy of the Prospectus, instruction letter and any other
document as the Company deems necessary or appropriate, to all Equity Security
Holders with record addresses in the United States (including its territories
and possessions and the District of Columbia). Delivery shall be by
first class mail (without registration or insurance), except for those Equity
Security Holders having a registered address outside the United States (who will
only receive copies of the Prospectus, instruction letter and other documents as
the Company deems necessary or appropriate, if any), delivery shall be by air
mail (without registration or insurance) or by first class mail (without
registration or insurance) to those Equity Security Holders having APO or FPO
addresses. No Subscription Certificate shall be valid for any purpose
unless so executed.
C. The Agent will mail a
copy of the Prospectus, instruction letter, a special notice and other documents
as the Company deems necessary or appropriate, if any, but not Subscription
Certificates to Record Date Equity Security Holders whose record addresses are
outside the United States (including its territories and possessions and the
District of Columbia ) ("Foreign Record Date Equity Security
Holders"). The Rights to which such Subscription Certificates relate
will be held by the Agent for such Foreign Record Date Equity Security Holders'
accounts until instructions are received to exercise, sell or transfer the
Rights.
4.
Exercise.
A. Record Date Equity
Security Holders may acquire Convertible Preferred Shares pursuant to
Subscription Rights by delivery to the Agent as specified in the Prospectus of
(i) the Subscription Certificate with respect thereto, duly executed by such
Equity Security Holder in accordance with and as provided by the terms and
conditions of the Subscription Certificate, together with (ii) the estimated
purchase price, as disclosed in the Prospectus, for each Convertible Preferred
Share subscribed for by exercise of such Rights, in U.S. dollars by money order
or check drawn on a bank in the United States, in each case payable to the order
of the Company or Computershare
B. Rights may be exercised
at any time after the date of issuance of the Subscription Certificates with
respect thereto but no later than 5:00 P.M. New York time on such date as the
Company shall designate to the Agent in writing (the "Expiration
Date"). For the purpose of determining the time of the exercise of
any Rights, delivery of any material to the Agent shall be deemed to occur when
such materials are received at the Shareholder Services Division of the Agent
specified in the Prospectus.
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C. Notwithstanding the
provisions of Section 4 (A) and 4 (B) regarding delivery of an executed
Subscription Certificate to the Agent prior to 5:00 P.M. New York time on the
Expiration Date, if prior to such time the Agent receives a Notice of Guaranteed
Delivery by facsimile (telecopy) or otherwise from a bank, a trust company or a
New York Stock Exchange member guaranteeing delivery of (i) payment of the full
Subscription Price for Convertible Preferred Shares subscribed for pursuant to
Subscription Rights and (ii) a properly completed and executed Subscription
Certificate, then such exercise of Subscription Rights shall be regarded as
timely, subject, however, to receipt of the duly executed Subscription
Certificate and full payment for the Convertible Preferred Shares by the Agent
within three Business Days (as defined below) after the Expiration Date (the
"Protect Period"). For the purposes of the Prospectus and this
Agreement, "Business Day" shall mean any day on which trading is conducted on
the New York Stock Exchange.
D. As soon as practicable
after the Expiration Date, Computershare shall send to each exercising Equity
Security Holder (or, if the Trust Securities on the Record Date are held by Cede
& Co. or any other depository or nominee, to Cede & Co. or such other
depository or nominee) a confirmation showing the number of Convertible
Preferred Shares acquired pursuant to Subscription Rights and the per share and
total purchase price for such shares.
5.
Validity of
Subscriptions.
Irregular subscriptions not otherwise
covered by specific instructions herein shall be submitted to an appropriate
officer of the Company and handled in accordance with his or her
instructions. Such instructions will be documented by the Agent
indicating the instructing officer and the date thereof.
6.
[Intentionally
Omitted].
7.
Delivery
of Shares.
The Agent will deliver certificates or
Statements of
Holding reflecting new Convertible Preferred Shares in the Direct Registration
System, representing those Convertible Preferred
Shares purchased pursuant to the exercise of Subscription Rights as soon
as practicable after the corresponding Rights have been validly exercised and
full payment for such Convertible Preferred Sharres has been received and
cleared.
8.
Holding
Proceeds of Rights Offering.
A. All proceeds received by
Computershare from Equity Security Holders in respect of the exercise of Rights
shall be held by Computershare, on behalf of the Company, in a segregated,
interest-bearing account (the "Account"), and the Company shall be entitled to
all accrued interest from the Account. No interest shall accrue to
holders of Trust Securities on funds held in the Account pending
disbursement.
B. Computershare shall
deliver all proceeds received in respect of the exercise of Rights and all
interest on the Account to the Company as promptly as practicable, but in no
event later than three business days after the Guarantee of Delivery Expiration
Date.
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C. The
Company acknowledges that the Account will be maintained by Computershare in its
name. Computershare will provide the Company with a reasonable
accounting of the funds deposited in the Account and the interest earned thereon
so that the Company can verify the amount of interest earned on the
Account.
9.
Reports.
Daily, during the period commencing on
March 21, 2008, until termination of the Subscription Period, the Agent will
report by telephone or telecopier, confirmed by letter, to an Officer of the
Company, data regarding Rights exercised, the total number of Convertible
Preferred Shares subscribed for, and payments received therefor, bringing
forward the figures from the previous day's report in each case so as to show
the cumulative totals and any such other information as may be mutually
determined by the Company and the Agent.
10. Loss or
Mutilation.
If any Subscription Certificate
is lost, stolen, mutilated or destroyed, the Agent may, on such terms which will
indemnify and protect the Company and the Agent as the Company may in its
discretion impose (which shall, in the case of a mutilated Subscription
Certificate include the surrender and cancellation thereof), issue a new
Subscription Certificate of like denomination in substitution for the
Subscription Certificate so lost, stolen, mutilated or destroyed.
11. Compensation for
Services.
The Company agrees to pay to the
Agent compensation for its services hereunder in accordance with its Fee
Schedule to act as Agent attached hereto as Exhibit A. The Company
further agrees that it will reimburse the Agent for its reasonable out-of-pocket
expenses incurred in the performance of its duties as such.
12. Instructions,
Indemnification and Limitation of Liability.
The Agent undertakes the duties
and obligations imposed by this Agreement upon the following terms and
conditions:
A. The Agent shall be
entitled to rely upon and shall be indemnified and held harmless in acting, or
omitting to act, in reliance upon any instructions or directions furnished to it
by Xxxx X. Xxxxxxxxx, President and Chief Executive Officer of the Company,
Xxxxxx X. Xxxx, Chief Financial Officer and Secretary of the Company and/or Xxxx
X. X’Xxxxx, Senior Managing Director/General Counsel of the Company, or any
other person subsequently notified to you in writing by any of the foregoing
(each, an “Authorized
Officer” and, collectively, the “Authorized
Officers”), whether in conformity with the provisions of this Agreement
or constituting a modification hereof or a supplement hereto. Without
limiting the generality of the foregoing or any other provision of this
Agreement, the Agent, in connection with its duties hereunder, shall not be
under any duty or obligation to inquire into the validity or invalidity or
authority or lack thereof of any instruction or direction from an Authorized
Officer which conforms to the applicable requirements of this Agreement and
which the Agent reasonably believes to be genuine and shall not be liable for
any delays, errors or loss of data occurring by reason of circumstances beyond
the Agent's control.
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B. The Company will
indemnify the Agent and its nominees against, and hold it harmless from, all
liability and expense which may arise out of or in connection with the services
described in this Agreement or the instructions or directions furnished to the
Agent relating to this Agreement by an Authorized Officer of the Company, except
for any liability or expense which shall arise out of the negligence, bad faith
or willful misconduct of the Agent or such nominees.
Promptly
after the receipt by the Agent of notice of any demand or claim or the
commencement of any action, suit, proceeding or investigation, the Agent shall,
if a claim in respect thereof is to be made against the Company, notify the
Company thereof in writing. The Company shall be entitled to
participate at its own expense in the defense of any such claim or proceeding,
and, if it so elects at any time after receipt of such notice, it may assume the
defense of any suit brought to enforce any such claim or of any other legal
action or proceeding and, after such assumption, the Agent shall not be entitled
to reimbursement of any expenses thereafter incurred by it in connection with
such claim or proceeding. For the purposes of this Section 12, the term "expense
or loss" means any amount paid or payable to satisfy any claim, demand, action,
suit or proceeding settled with the express written consent of the Company and
the Agent, and all reasonable costs and expenses, including, but not limited to,
reasonable counsel fees and disbursements, paid or incurred in investigating or
defending against any such claim, demand, action, suit, proceeding or
investigation.
C. The Agent shall be
responsible for and shall indemnify and hold the Company harmless from and
against any and all losses, damages, costs, charges, counsel fees, payments,
expenses and liability arising out of or attributable to Agent’s refusal or
failure to comply with the terms of this Agreement, or which arise out of
Agent’s negligence, bad faith or willful misconduct or which arise out of the
breach of any representation or warranty of Agent hereunder, for which Agent is
not entitled to indemnification under this Agreement; provided, however, that
Agent’s aggregate liability during any term of this Agreement with respect to,
arising from, or arising in connection with this Agreement, or from all services
provided or omitted to be provided under this Agreement, whether in contract, or
in tort, or otherwise, is limited to, and shall not exceed, the amounts paid
hereunder by the Company to Agent as fees and charges, but not including
reimbursable expenses, during the twelve (12) calendar months immediately
proceeding the event for which recovery from the Agent is being
sought.
13. Changes in Subscription
Certificate.
The Agent may, without the
consent or concurrence of the Equity Security Holders in whose names
Subscription Certificates are registered, by supplemental agreement or
otherwise, concur with the Company in making any changes or
corrections in a Subscription Certificate that it shall have been advised by
counsel (who may be counsel for the Company) is appropriate to cure any
ambiguity or to correct any defective or inconsistent provision or clerical
omission or mistake or manifest error therein or herein contained, and which
shall not be inconsistent with the provisions of the Subscription Certificate
except insofar as any such change may confer additional rights upon the Equity
Security Holders.
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14. Assignment/Delegation.
A. Except as provided
in Section 14(B) below, neither this Agreement nor any rights or obligations
hereunder may be assigned or delegated by either party without the written
consent of the other party.
B. The
Agent may, without further consent on the part of the Company, subcontract with
other subcontractors for systems, processing, telephone and mailing services,
and post-exchange activities, as may be required from time to time; provided, however, that
the Agent shall be as fully responsible to the Company for the acts and
omissions of any subcontractor as it is for its own acts and
omissions.
C. Except
as explicitly stated elsewhere in this Agreement, nothing under this Agreement
shall be construed to give any rights or benefits in this Agreement to anyone
other than the Agent and the Company and the duties and responsibilities
undertaken pursuant to this Agreement shall be for the sole and exclusive
benefit of the Agent and the Company.
15. Governing
Law.
The validity, interpretation and
performance of this Agreement shall be governed by the laws of the State of New
York, without regard to the conflicts of laws principles thereof, and shall
inure to the benefit of and the obligations created hereby shall be binding upon
the successors and permitted assigns of the parties hereto.
16. Third Party
Beneficiaries.
This Agreement does not
constitute an agreement for a partnership or joint venture between the Agent and
the Company. Neither party shall make any commitments with third
parties that are binding on the other party without the other party’s prior
written consent.
17. Force
Majeure.
In the event either party is unable to
perform its obligations under the terms of this Agreement because of acts of
God, strikes, terrorist acts, equipment or transmission failure or damage
reasonably beyond its control, or other cause reasonably beyond its control,
such party shall not be liabile for damages to the other for any damages
resulting from such failure to perform or otherwise from such
causes. Performance under this Agreement shall resume when the
affected party or parties are able to perform substantially that party’s
duties.
18. Consequential
Damages.
Neither party to this Agreement shall
be liable to the other party for any consequential, indirect, special or
incidental damages under any provisions of this Agreement or for any
consequential, indirect, penal, special or incidential damages arising out of
any act or failure to act hereunder even if that party has been advised of or
has foreseen the possibility of such damages.
19. Severability.
If any provision of this
Agreement shall be held invalid, unlawful, or unenforceable, the valididty,
legality, and enforceability of the remaining provisions shall not in any way be
affected or impaired.
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20. Counterparts.
This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
21. Captions.
The captions and descriptive
headings herein are for the convenience of the parties only. They do
not in any way modify, amplify, alter or give full notice of the provisions
hereof.
22. Confidentiality.
The
Agent and the Company agree that all books, records, informtion and data
pertaining to the business of the other party which are exchanged or received
pursuant to the negotiation or the carrying out of this Agreement including the
fees for services set forth in the attached schedule shall remain confidential,
and shall not be voluntarily disclosed to any other person without the other
party’s’ consent, except as may be required by law.
23. Term and
Termination.
This
Agreement shall remain in effect until the earlier of (a) thirty (30) days after
the Expiration Date; (b) it is terminated by either party upon a material breach
of this Agreement which remains uncured for 30 days after written notice of such
breach has been provided; or (c) 30 days’ written notice has been
provided by either party to the other. Upon termination of this
Agreement, all canceled Certificates and related documentation in respect of
Trust Securities for which the Agent is not the Transfer Agent, will be returned
to the Company or agent designated by the Company. Upon termination
of the Agreement, the Agent shall retain all canceled Certificates and related
documentation in respect of Trust Securities for which it is the Transfer Agent
as required by applicable law.
24. Notices.
Until further notice in writing
by either party hereto to the other party, all
written
reports, notices and other communications between the Exchange Agent and
the Company required or permitted hereunder shall be
delivered or mailed by first class mail, postage prepaid, telecopier or overnight
courier guaranteeing next day delivery, addressed as
follows:
If to the
Company, to:
000
Xxxxxxx Xxxxxx
Xxx Xxxx,
XX 00000
Attn: General
Counsel
If to the
Agent, to:
Computershare
Trust Company, N.A.
c/o Comutershare, Inc.
000 Xxxxxx Xxxxxx
0
Xxxxxx, XX 00000
Attn: Reorganization
Department
25. Survival.
The provisions of Paragraphs 8,
12, 15-22, and 24-26 shall survive any termination, for any reason, of this
Agreement.
26. Merger of
Agreement.
This Agreement constitutes the
entire agreement between the parties hereto and supercedes any prior agreement
with respet to the subject matter hereof whether oral or written.
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of this page intentionally left blank)
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IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be executed by their respective officers, hereunto
duly authorized, as of the day and year first above written.
| COMPUTERSHARE TRUST COMPANY, NA. | COMPUTERSHARE TRUST COMPANY, NA. | |||
| By: | By: | |||
| Date: | Date: | |||
| Title: | Title: | |||
| COMPUTERSHARE INC. | ||||
| By: | ||||
| Date: | ||||
| Title: | ||||
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