REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of January 3, 1998, by and between Meditrust Corporation, a
Delaware corporation (the "Company"), Meditrust Operating Company, a Delaware
corporation ("OPCO"), and each of the parties signatory hereto.
RECITALS
WHEREAS, pursuant to (a) an Agreement and Plan of Merger dated as of
January 3, 1998 among the Company, OPCO and La Quinta Inns, Inc., a Texas
corporation ("La Quinta") (the "Merger Agreement"), and (b) a Shareholders
Agreement dated January 3, 1998 among the Company, OPCO, La Quinta, and the
shareholders of La Quinta named on the signature page hereto (the "Holders") are
receiving (i) shares of common stock of the Company, par value $.01 per share
(the "Company Common Stock"), and (ii) shares of common stock of OPCO, par value
$.01 per share (the "OPCO Common Stock"), which shares of Company Common Stock
and OPCO Common Stock are paired and transferable and tradeable only in
combination as a single unit on the New York Stock Exchange (the "Paired
Shares").
NOW, THEREFORE, in consideration of the mutual promises and
agreements set forth herein and in the Merger Agreement, and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Definitions. For purposes of this Agreement, the following terms
have the following meanings when used herein with initial capital letters:
Advice: As defined in Section 4 hereof.
Losses: As defined in Section 6 hereof.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities covered by such
Registration Statement 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.
Registrable Securities: The Paired Shares issued to the Holders
pursuant to the Merger Agreement excluding (A) Paired Shares that have been
disposed of pursuant to a Registration Statement relating to the sale thereof
that has become effective under the Securities Act, or (B) Paired Shares that
have become eligible to be sold pursuant to Rule 144 or Rule 145 of the
Securities Act, provided that all such Paired Shares referred to in this clause
(B) have become immediately salable within the volume restrictions imposed by
Rule 144 and Rule 145 or as otherwise permitted by either of such Rules.
Registrable Securities shall also include any Paired Shares or other securities
(or Paired Shares underlying such other securities) that may be received by the
Holders (x) as a result of a stock dividend on or stock split of Registrable
Securities or (y) on account of Registrable Securities in a recapitalization of
or other transaction involving the Company and/or OPCO.
Registration Statement: Any registration statement of the Company and
OPCO under the Securities Act that covers any of the Registrable Securities
pursuant to the provisions of this Agreement, including the related Prospectus,
all 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.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended.
2. Registration Rights.
(a) Shelf Registration. The Company and OPCO shall, subject to the
provisions of this Agreement, use reasonable efforts in accordance with the
terms hereof to cause a Registration Statement pursuant to Rule 415 under the
Securities Act (a "Shelf Registration Statement") on Form S-3 relating to the
sale by each of the Holders of their Registrable Securities to be (i) filed with
the SEC on or before the sixtieth (60th) day following the date on which the
merger contemplated by the Merger Agreement becomes effective (the "Effective
Date") and (ii) declared effective by the SEC on or before the ninetieth (90th)
day following the Effective Date. Notwithstanding the foregoing, no sale by any
Holder of Registrable Securities or Paired Shares shall violate any provision of
that certain Shareholders Agreement dated January 3, 1998. The Company and OPCO
agree to use reasonable efforts to keep the Shelf Registration Statement (or any
amendment thereof or replacement or successor thereto) continuously effective
until the earlier of (a) one (1) year from the Effective Date if the Company
shall be in compliance with the public information requirements referred to in
Section 7(k) of this Agreement on such anniversary date and, if it is not in
such compliance, then until the earlier of the date it is in such compliance or
two (2) years from the Effective Date or (b) the date on which the applicable
Holders (or Distributee or other Holder Transferees) no longer hold any
Registrable Securities.
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(b) Postponement of Effectiveness. The Company and OPCO may in their
sole discretion and for any reason whatsoever, postpone the filing of, or delay
the effectiveness of, any Registration Statement required hereunder for one or
more reasonable periods of time, not to exceed thirty (30) days following the
date of this Agreement.
3. Restrictions on Sale by Holders. Each Holder agrees, if such
Holder is so requested (pursuant to a timely written notice) by the Company and
OPCO during any public offering, not to effect any public sale or distribution
of any of the Company's and OPCO's securities of such class, including a sale
pursuant to Rule 144, during the fifteen (15) calendar day period prior to, and
during the sixty (60) calendar day period beginning on, the closing date of such
offering.
4. Registration Procedures. In connection with the Company's and
OPCO's registration obligations pursuant to Section 2 hereof, the Company and
OPCO will effect such registrations to permit the sale of such Registrable
Securities in accordance with the intended method or methods of disposition
thereof, and pursuant thereto the Company and OPCO will as expeditiously as
possible, and in each case to the extent applicable:
(a) Prepare and file with the SEC a Registration Statement or
Registration Statements on Form S-3 under the Securities Act available for the
sale of the Registrable Securities by the holders thereof in accordance with the
intended method or methods of distribution thereof, and cause each such
Registration Statement to become effective and remain effective as provided
herein.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement continuously effective for the applicable period
specified in Section 2; cause the related Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 (or any similar provisions then in force) under the Securities Act; and
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such Registration Statement during the applicable
period in accordance with the intended methods of disposition by the sellers
thereof set forth in such Registration Statement as so amended or in such
Prospectus as so supplemented.
(c) Notify the selling Holders promptly, and (if requested by any
such person) 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, (ii) of any request by the SEC or any other federal
or state governmental authority for amendments or supplements to a Registration
Statement or related Prospectus or for additional information, (iii) of the
issuance by the SEC or any other federal or state governmental authority of any
stop order suspending the effectiveness of a Registration Statement or the
initiation of any proceedings for that purpose, (iv) of the receipt by the
Company and OPCO of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable
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Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, and (v) of the occurrence of any event which 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 which requires the making of any changes in a
Registration Statement, Prospectus or any such document 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, 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 or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(d) Use every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement, or the lifting of any
suspension of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction, at the earliest possible
moment.
(e) If requested by the Holders holding a majority of the Registrable
Securities being registered, (i) promptly incorporate in a Prospectus supplement
or post-effective amendment such information as the Holders agree should be
included therein as may be required by applicable law and (ii) make all required
filings of such Prospectus supplement or such post-effective amendment as soon
as practicable after the Company and OPCO have received notification of the
matters to be incorporated in such Prospectus supplement or post-effective
amendment; provided, however, that the Company and OPCO will not be required to
take any actions under this Section 4(e) that are not, in the opinion of counsel
for the Company and OPCO, in compliance with applicable law.
(f) Furnish to each selling Holder without charge, at least one
conformed copy of the Registration Statement and any post-effective amendment
thereto, including financial statements (but excluding schedules, all documents
incorporated or deemed incorporated therein by reference and all exhibits,
unless requested in writing by such holder or counsel).
(g) Deliver to each selling Holder without charge as many copies of
the Prospectus or Prospectuses relating to such Registrable Securities
(including each preliminary prospectus) and any amendment or supplement thereto
as such persons may request; and the Company and OPCO hereby consent to the use
of such Prospectus or each amendment or supplement thereto by each of the
selling Holders in connection with the offering and sale of the Registrable
Securities covered by such Prospectus or any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, to
register or qualify or cooperate with the selling Holders and their respective
counsel in connection with the registration or qualification (or exemption from
such registration or qualification) of such
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Registrable Securities for offer and sale under the securities or blue sky laws
of such jurisdictions within the United States as any seller reasonably requests
in writing; use all reasonable efforts to keep such registration or
qualification (or exemption therefrom) effective during the period the
applicable 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
each such jurisdiction of the Registrable Securities covered by the applicable
Registration Statement; provided, however, that the Company and OPCO will not be
required to (i) qualify to do business in any jurisdiction in which they are not
then so qualified or (ii) take any action that would subject them to service of
process generally in any such jurisdiction in which they are not then so
subject.
(i) Cooperate with the selling Holders to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold.
(j) Upon the occurrence of any event contemplated by Section 4(c)(v)
hereof, prepare a supplement or post-effective amendment to each Registration
Statement or a supplement to the related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities being sold thereunder,
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) If requested by Holders holding a majority of the Registrable
Securities covered by such Registration Statement, use all reasonable efforts to
cause all Registrable Securities covered by such Registration Statement to be
(i) listed on each securities exchange, if any, on which similar securities
issued by the Company and OPCO are then listed or, if no similar securities
issued by the Company and OPCO are then so listed, on the New York Stock
Exchange or another national securities exchange if the securities qualify to be
so listed or (ii) authorized to be quoted on the National Association of
Securities Dealers Automated Quotation System ("NASDAQ") or the National Market
System of NASDAQ if the securities qualify to be so quoted.
(l) As needed, (i) engage an appropriate transfer agent and provide
the transfer agent with printed certificates for the Registrable Securities in a
form eligible for deposit with The Depository Trust Company and (ii) provide a
CUSIP number for the Registrable Securities.
(m) Make available for reasonable inspection during normal business
hours by a representative of the Holders holding Registrable Securities being
sold, or any attorney or accountant retained by such selling Holders, all
financial and other records, pertinent corporate documents and properties of the
Company and OPCO and their subsidiaries, and cause the officers, directors and
employees of the Company and OPCO and their subsidiaries to supply all
information reasonably requested by any such representative, attorney or
accountant in
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connection with such Registration Statement; provided, however, that any
records, information or documents that are designated by the Company or OPCO in
writing as confidential at the time of delivery of such records, information or
documents will be kept confidential by such persons unless (i) such records,
information or documents are in the public domain or otherwise publicly
available, (ii) disclosure of such records, information or documents is required
by court or administrative order or is necessary to respond to inquiries of
regulatory authorities, or (iii) disclosure of such records, information or
documents, in the reasonable opinion of counsel to such person, is otherwise
required by law (including, without limitation, pursuant to the requirements of
the Securities Act).
The Company and OPCO may require each seller of Registrable
Securities as to which any registration is being effected to furnish to the
Company and OPCO such information regarding the distribution of such Registrable
Securities as the Company and OPCO may, from time to time, reasonably request in
writing and the Company and OPCO may exclude from such registration the
Registrable Securities of any seller who unreasonably fails to furnish such
information within a reasonable time after receiving such request.
Each Holder will be deemed to have agreed by virtue of its
acquisition of Registrable Securities that, upon receipt of any notice from the
Company and OPCO of (i) the occurrence of any event of the kind described in
Section 4(c)(ii), 4(c)(iii), 4(c)(iv) or 4(c)(v) hereof, or (ii) the suspension,
by the Company or OPCO, in their sole discretion for any reason whatsoever, of
the effectiveness of any Registration Statement ("Suspension Notice"), such
Holder will forthwith discontinue disposition of such Registrable Securities
covered by such Registration Statement or Prospectus (a "Black-Out") until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 4(j) hereof, or until it is advised in writing (the
"Advice") by the Company and OPCO that the use of the applicable Prospectus may
be resumed, and such Holder has received copies of any additional or
supplemental filings that are incorporated or deemed to be incorporated by
reference in such Prospectus. Except as expressly provided herein, there shall
be no limitation with regard to the number of Suspension Notices the Company and
OPCO are entitled to give hereunder; provided, however, that (x) in no event
shall the aggregate number of days the Holders are subject to Black-Out during
any period of twelve (12) consecutive months exceed ninety (90) and (y) no one
Black-Out period shall exceed thirty (30) days.
5. Registration Expenses. All fees and expenses incident to the
performance of or compliance with this Agreement by the Company and OPCO will be
borne by the Company and OPCO whether or not any of the Registration Statements
become effective. Such fees and expenses will include, without limitation, (i)
all registration and filing fees (including, without limitation, fees and
expenses for compliance with securities or "blue sky" laws) (ii) printing
expenses (including, without limitation, expenses of printing certificates for
Registrable Securities in a form eligible for deposit with The Depository Trust
Company and of printing a reasonable number of prospectuses if the printing of
such prospectuses is requested by the Holders holding a majority of the
Registrable Securities included in any Registration Statement), (iii) messenger,
telephone and delivery expenses incurred by the Company and
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OPCO, (iv) fees and disbursements of counsel for the Company and OPCO incurred
by the Company and OPCO, (v) fees and disbursements of all independent certified
public accountants (including the expenses of any special audit and "comfort"
letter required by or incident to such performance) incurred by the Company and
OPCO, (vi) Securities Act liability insurance if the Company or OPCO so desires
such insurance, and (vii) fees and expenses of all other persons retained by the
Company or OPCO. In addition, the Company and OPCO will pay their internal
expenses (including without limitation all salaries and expenses of their
officers and employees performing legal or accounting duties), the expense of
any annual audit, the fees and expenses incurred in connection with the listing
of the securities to be registered on any securities exchange on which similar
securities issued by the Company and OPCO are then listed and the fees and
expenses of any person, including special experts, retained by the Company or
OPCO. The Holders shall be responsible on a pro rata basis for any taxes of any
kind (including, without limitation, transfer taxes) with respect to any
disposition, sale or transfer of Registrable Securities and for any legal,
accounting and other expenses incurred by them in connection with any
Registration Statement.
6. Indemnification.
(a) Indemnification by the Company and OPCO. The Company and OPCO
will, without limitation as to time, indemnify and hold harmless, to the fullest
extent permitted by law, each Holder holding Registrable Securities registered
pursuant to this Agreement, the officers, directors and agents and employees of
each of them, each person who controls such a Holder (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) and the
officers, directors, agents and employees of any such controlling person, from
and against all losses, claims, damages, liabilities, costs (including without
limitation the costs of investigation and attorneys' fees) and expenses
(collectively, "Losses"), as incurred, arising out of or based upon any untrue
or alleged untrue statement of a material fact contained in any Registration
Statement, Prospectus or form of Prospectus or in any amendment or supplement
thereto or in any preliminary prospectus, or arising out of or based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as the same are based solely upon information furnished in
writing to the Company and OPCO by such Holder expressly for use therein;
provided, however, that the Company and OPCO will not be liable to any Holder to
the extent that any such Losses arise out of or are based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Registration Statement, Prospectus or preliminary prospectus if either (A)
(i) such Holder failed to send or deliver a copy of the Prospectus with or prior
to the delivery of written confirmation of the sale by such Holder of a
Registrable Security to the person asserting the claim from which such Losses
arise and (ii) the Prospectus would have completely corrected such untrue
statement or alleged untrue statement or such omission or alleged omission; or
(B) such untrue statement or alleged untrue statement, omission or alleged
omission is completely corrected in an amendment or supplement to the Prospectus
previously furnished by or on behalf of the Company and OPCO with copies of the
Prospectus, and such Holder thereafter fails to deliver such Prospectus as so
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amended or supplemented prior to or concurrently with the sale of a Registrable
Security to the person asserting the claim from which such Losses arise.
(b) Indemnification by Holders. In connection with any Registration
Statement in which a Holder is participating, such Holder will furnish to the
Company and OPCO in writing such information as the Company and OPCO reasonably
request for use in connection with any Registration Statement, Prospectus or
preliminary prospectus and will indemnify, to the fullest extent permitted by
law, the Company and OPCO, their respective directors and officers, agents and
employees, each person who controls the Company and OPCO (within the meaning of
Section 15 of the Securities Act and Section 20 of the Exchange Act), and the
directors, officers, agents or employees of such controlling persons, from and
against all Losses arising out of or based upon any untrue statement of a
material fact contained in any Registration Statement, Prospectus or preliminary
prospectus or arising out of or based upon any omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, to the extent, but only to the extent, that such untrue statement or
omission is contained in any information so furnished in writing by such Holder
to the Company and OPCO expressly for use in such Registration Statement,
Prospectus or preliminary prospectus and was relied upon by the Company and OPCO
in the preparation of such Registration Statement, Prospectus or preliminary
prospectus. In no event will the liability of any selling Holder hereunder be
greater in amount than the dollar amount of the proceeds (net of payment of all
expenses) received by such Holder upon the sale of the Registrable Securities
giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. If any person shall
become entitled to indemnity hereunder (an "indemnified party"), such
indemnified party shall give prompt notice to the party from which such
indemnity is sought (the "indemnifying party") of any claim or of the
commencement of any action or proceeding with respect to which such indemnified
party seeks indemnification or contribution pursuant hereto; provided, however,
that the failure to so notify the indemnifying party will not relieve the
indemnifying party from any obligation or liability except to the extent that
the indemnifying party has been prejudiced materially by such failure. All fees
and expenses (including any fees and expenses incurred in connection with
investigating or preparing to defend such action or proceeding) will be paid to
the indemnified party, as incurred, within five calendar days of written notice
thereof to the indemnifying party (regardless of whether it is ultimately
determined that an indemnified party is not entitled to indemnification
hereunder). The indemnifying party will not consent to entry of any judgment or
enter into any settlement or otherwise seek to terminate any action or
proceeding in which any indemnified party is or could be a party and as to which
indemnification or contribution could be sought by such indemnified party under
this Section 6, unless such judgment, settlement or other termination includes
as an unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release, in form and substance satisfactory to the
indemnified party, from all liability in respect of such claim or litigation for
which such indemnified party would be entitled to indemnification hereunder.
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(d) Contribution. If the indemnification provided for in this Section
6 is unavailable to an indemnified party under Section 6(a) or 6(b) hereof in
respect of any Losses or is insufficient to hold such indemnified party
harmless, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, will, severally but not jointly, contribute to the amount
paid or payable by such indemnified party as a result of such Losses, in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party or indemnifying parties, on the one hand, and such indemnified party, on
the other hand, in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of such indemnifying party or indemnifying parties, on the
one hand, and such indemnified party, on the other hand, will be determined by
reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged
omission of a material fact, has been taken or made by, or related to
information supplied by, such indemnifying party or indemnified party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action, statement or omission. The amount paid or
payable by a party as a result of any Losses will be deemed to include any legal
or other fees or expenses incurred by such party in connection with any action
or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 6(d), an indemnifying party that
is a selling Holder will not be required to contribute any amount in excess of
the amount by which the total price at which the Registrable Securities sold by
such indemnifying party and distributed to the public were offered to the public
exceeds the amount of any damages which such indemnifying party has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
The indemnity, contribution and expense reimbursement obligations of
the Company and OPCO hereunder will be in addition to any liability the Company
or OPCO may otherwise have hereunder or otherwise. The provisions of this
Section 8 will survive so long as Registrable Securities remain outstanding,
notwithstanding any permitted transfer of the Registrable Securities by any
Holder thereof or any termination of this Agreement.
7. Miscellaneous.
(a) Remedies. In the event of a breach by the Company and OPCO of
their obligations under this Agreement, each Holder, in addition to being
entitled to exercise all rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement. The
Company and OPCO agree that monetary damages would not be adequate compensation
for any loss incurred by reason of a breach by them of
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any provision of this Agreement and hereby further agree that, in the event of
any action for specific performance in respect of such breach, they will waive
the defense that a remedy at law would be adequate.
(b) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented without the prior written consent of the
Company and OPCO, and Holders holding in excess of 50% of the Registrable
Securities and Unpaired Shares in respect of which Registrable Securities are
issuable.
(c) Notices. Except as set forth below, all notices and other
communications provided for or permitted hereunder shall be in writing and shall
be deemed to have been duly given if delivered personally or sent by telex or
telecopier, registered or certified mail (return receipt requested), postage
prepaid or courier or overnight delivery service to the Company and OPCO at the
following address and to a Holder x/x Xxxxxxx X. Xxxxxxx, Xxxxx 0000, Xxxxx
Xxxxxxxx Bank Tower, 000 Xxxx Xxxxxx, Xxxx Xxxxx, Xxxxx 00000 (or at such other
address for any party as shall be specified by like notice, provided that
notices of a change of address shall be effective only upon receipt thereof):
If to the Company: Meditrust Corporation
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
and if to OPCO Meditrust Operating Company
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
With a copy in either case to:
Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, P.C. and
Xxxxxxx X. Xxxx, P.C.
Telecopy: (000) 000-0000
(d) Successors and Assigns. This Agreement will inure to the benefit
of and be binding upon the successors and assigns of the Company and OPCO. This
Agreement may not be assigned by any Holder, except to a constituent partner or
shareholder of such Holder which is an accredited investor, unless the proposed
transferee or assignee of such Holder (a "Holder Transferee") agrees in a
writing reasonably acceptable to the Company and OPCO to be bound by the terms
of this Agreement. Except as otherwise expressly permitted herein, any attempted
assignment hereof by any Holder will be void and of no effect and shall
terminate all obligations of
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the Company and OPCO with respect to such Holder. Notwithstanding the foregoing,
each of the indemnified parties shall be entitled to enforce the covenants set
forth in Section 6 hereof.
(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 will be deemed to be an original and all of which taken
together will constitute one and the same instrument.
(f) Headings. The headings in this Agreement are for convenience of
reference only and will not limit or otherwise affect the meaning hereof.
(g) Governing Law. This agreement will be governed by and construed
in accordance with the laws of the State of Delaware, as applied to contracts
made and performed within the State of Delaware, without regard to principles of
conflict of laws.
(h) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein will remain in full force and effect and will in
no way be affected, impaired or invalidated, and the parties hereto will 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 which may
be hereafter declared invalid, void or unenforceable.
(i) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be the complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein, with respect to such subject matter.
(j) Attorneys' Fees. In any action or proceeding brought to enforce
any provision of this Agreement, or where any provision hereof is validly
asserted as a defense, the prevailing party, as determined by the court, will be
entitled to recover reasonable attorneys' fees in addition to any other
available remedy.
(k) Rule 144. The Company shall use reasonable efforts to comply with
the public information requirements of Rule 144(c) under the Securities Act for
a period of at least two (2) years following the Effective Date.
(l) Effectiveness. Notwithstanding anything herein to the contrary,
this Agreement shall become effective only when and if the Merger becomes
effective.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
MEDITRUST CORPORATION
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
MEDITRUST OPERATING COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
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XXXXXX X. XXXXXX & CO.
By: /s/ X.X. Xxxxxxx, Xx.
----------------------------------
Name: X.X. Xxxxxxx, Xx.
Title: Vice President
XXX X. XXXX, INC.
By: /s/ X.X. Xxxxxxx, Xx.
----------------------------------
Name: X.X. Xxxxxxx, Xx.
Title: Vice President
XXX X. XXXX, INC.
By: /s/ X.X. Xxxxxxx, Xx.
----------------------------------
Name: X.X. Xxxxxxx, Xx.
Title: Vice President
THE BASS MANAGEMENT TRUST
By: /s/ Xxxxx X. Xxxx
----------------------------------
Xxxxx X. Xxxx, Trustee,
by X.X. Xxxxxxx, Attorney-in-fact
13
THE AIRLIE GROUP, L.P.
By: EBD, L.P., General Partner,
By: TMT-FW Inc.,
By: /s/ X.X. Xxxxxxx, Xx.
----------------------------------
X.X. Xxxxxxx, Xx.
Vice President
XXXXXXX X. XXXXXXX, XX.
/s/ Xxxxxxx X. Xxxxxxx, Xx.
----------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
XXXXX X. XXXX GRANDSON'S TRUST FOR
XXX X. XXXX
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
----------------------------------
Xxxxxxx X. Xxxxxxx, Xx., Trustee
XXXXX X. XXXX GRANDSON'S TRUST FOR
XXX X. XXXX
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
----------------------------------
Xxxxxxx X. Xxxxxxx, Xx., Trustee
XXXXX XXXXXXXX
/s/ Xxxxx Xxxxxxxx
----------------------------------
Xxxxx Xxxxxxxx
XXXX X. XXXX
/s/ Xxxx X. Xxxx
----------------------------------
Xxxx X. Xxxx
14
HYATT XXXX XXXX SUCCESSOR TRUST
By: Panther City Investment Co., Trustee
By: /s/ X.X. Xxxxxxx Xx.
----------------------------------
X.X. Xxxxxxx Xx.,
Vice President
XXXXXXXX XXXX BASS SUCCESSOR TRUST
By: Panther City Investment Co., Trustee
By: /s/ X.X. Xxxxxxx Xx.
----------------------------------
X.X. Xxxxxxx Xx.,
Vice President
PORTFOLIO C INVESTORS, L.P.
By: Portfolio Associates, Inc.,
General Partner
By: /s/ X.X. Xxxxxxx Xx.
----------------------------------
X.X. Xxxxxxx Xx.,
Vice President
15
