EXHIBIT 10.2
INNKEEPERS USA TRUST
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8.625% Series A Cumulative Convertible
Preferred Shares of Beneficial Interest
Registration Rights Agreement
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dated May 18, 1998
EVEREN SECURITIES, INC.
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Registration Rights Agreement
(Innkeepers USA Trust)
May 18, 1998
INTRODUCTORY. This Registration Rights Agreement (this "Agreement") is
made and entered into as of May 18, 1998, by and among Innkeepers USA Trust, a
Maryland real estate investment trust (the "Company"), and EVEREN Securities
Inc. (the "Initial Purchaser") for the benefit of the Holders (as defined
herein). This Agreement is entered into pursuant to that certain purchase
agreement (the "Purchase Agreement"), dated May 12, 1998, between the Company,
Innkeepers USA Limited Partnership, a Virginia limited partnership (the
"Partnership") and the Initial Purchaser. In order to induce the Initial
Purchaser to enter into the Purchase Agreement, the Company and the Partnership
have agreed to provide the registration rights provided for in this Agreement to
the Initial Purchaser and its direct and indirect transferees. The execution of
this Agreement is a condition to the closing of the transactions contemplated by
the Purchase Agreement.
The parties hereby agree as follows:
DEFINITIONS.
As used in this Agreement, the following terms shall have the following
meanings:
Affiliate: As to any specified person shall mean any other person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified person. For the purposes of this definition,
"control," when used with respect to any person, means the power to direct the
management and policies of such person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise and the terms
"controlling and "controlled" have the meanings correlative to the foregoing.
Agreement: This Registration Rights Agreement, as the same may be
amended, supplemented or modified from time to time in accordance with the terms
hereof.
Business Day: With respect to any act to be performed under this
Agreement, each Monday, Tuesday, Wednesday, Thursday and Friday that is not a
day on which banking institutions in New York, or other applicable place where
such act is to occur, are authorized or obligated by applicable law, regulation
or executive order to close.
Commission: The United States Securities and Exchange Commission.
Common Shares: Common Shares of beneficial interest $0.01 par value
per share, of the Company.
Company: Innkeepers USA Trust, a Maryland real estate investment
trust, and any successor thereto.
Controlling Person: Any person who controls a specified person within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act.
Exchange Act: The Securities and Exchange Act of 1934, as amended, and
the rules and regulations promulgated by the Commission thereunder.
General Partner: Innkeepers Financial Corporation, a Virginia
corporation and general partner of the Partnership.
Holder: Each record owner of any Registrable Shares from time to time,
including the Initial Purchaser and its Affiliates.
Initial Purchaser: EVEREN Securities, Inc. an Illinois corporation.
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Initial Purchaser's Option: The option granted by the Company to the
Initial Purchaser in the Purchase Agreement to purchase up to 630,000 Series A
Preferred Shares.
Issue Date: The First Closing Date, as defined in the Purchase
Agreement, which is the first date of issuance of the Series A Preferred Shares.
NASD: National Association of Securities Dealers, Inc., or its
subsidiary NASD Regulation, Inc., as the context requires.
Offering Memorandum: The final Offering Memorandum of the Company
dated May 12, 1998 pursuant to which the Series A Preferred Shares are offered
and sold.
Partnership: Innkeepers USA Limited Partnership, a Virginia limited
partnership, in which the sole partner is Innkeepers Financial Corporation, a
Virginia corporation and a wholly-owned subsidiary of the Company.
Person: An individual, partnership, corporation, trust, or
unincorporated organization, or government agency or political subdivision
thereof or any other legal entity.
Proceeding: An action, claim, suit or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or, to the knowledge of the person subject thereto,
threatened.
Prospectus: The prospectus included in any Registration Statement,
including any preliminary prospectus, and all other amendments and supplements
to any such prospectus, including post effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference, it any, in
such prospectus.
Purchase Agreement: As defined in the Introductory paragraph of this
Agreement.
Register, registered and registration: Such terms refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement by the Commission.
Registrable Shares: The Series A Preferred Shares and the Underlying
Common Shares, upon original issuance thereof and at all times subsequent
thereto, until, in the case of any Share, the earliest to occur of (i) the date
on which it has been registered effectively under the Securities Act and
disposed of in accordance with the registration statement relating to it, (ii)
the date on which it either is transferred in compliance with Rule 144 (or any
similar provision then in effect) or is eligible for resale in compliance with
Rule 144(k), as promulgated by the Commission under the Securities Act, (iii)
the date on which it is eligible for general resale, without restriction,
pursuant to another available exemption from registration under the Securities
Act, if any, or (iv) the date on which it is sold to the Company.
Registration Expenses: Any and all expenses incident to the performance
of or compliance with this Agreement, including, without limitation: (i) all
Commission, stock exchange, NASD registration, listing, inclusion and filing
fees, (ii) all fees and expenses incurred in connection with compliance with
Canadian, federal or state securities or blue sky laws (including, without
limitation, any registration, listing and filing fees and reasonable fees and
disbursements of counsel in connection with blue sky qualification of any of the
Registrable Shares and the preparation of a Blue Sky Memorandum and compliance
with the rules of the NASD), (iii) all expenses of any Persons in preparing or
assisting in preparing, word processing, duplicating, printing, delivering and
distributing any Registration Statement, any Prospectus, any amendments or
supplements thereto, certificates and other documents relating to the
performance of and compliance with this Agreement, (iv) the fees and
disbursements of counsel for the Company and of the independent public
accountants (including, without limitation, the expenses of any special audit
and "cold comfort" letters required by or incident to such performance) of the
Company (provided that Registration Expenses shall not include the fees and
expenses of any counsel to the Holders or the Selling Shareholders) and (v) any
fees and disbursements customarily paid in connection with the issuance or sales
of securities (including the fees and expenses of any experts retained by the
Company in connection with any Registration Statement), but excluding brokers'
commissions and transfer taxes, if any, relating to the sale or disposition of
Registrable Shares by a holder or by a Selling Shareholder.
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Registration Statement: One or more registration statements, on the
appropriate form, of the Company that cover the resale of any of the Registrable
Shares pursuant to the provisions of this Agreement, including the Prospectus,
any required amendments and supplements to such registration statement or
Prospectus, including pre- and post-effective amendments, all exhibits thereto,
and all material incorporated by reference or deemed to be incorporated by
reference, if any, in such registration statement.
Rule 144: Rule 144 promulgated by the Commission pursuant to the
Securities Act, as such rule may be amended from time to time, or any similar or
successor rule or regulation hereafter adopted by the Commission as a
replacement thereto having substantially the same effect as such rule.
Rule 144A: Rule 144A promulgated by the Commission pursuant to the
Securities Act, as such rule may be amended from time to time, or any similar or
successor rule or regulation hereafter adopted by the Commission as a
replacement thereto having substantially the same effect as such rule.
Rule 158: Rule 158 promulgated by the Commission pursuant to the
Securities Act, as such rule may be amended from time to time, or any similar or
successor rule or regulation hereafter adopted by the Commission as a
replacement thereto having substantially the same effect as such rule.
Rule 424: Rule 424 promulgated by the Commission pursuant to the
Securities Act, as such rule may be amended from time to time, or any similar or
successor rule or regulation hereafter adopted by the Commission as a
replacement thereto having substantially the same effect as such rule.
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations promulgated by the Commission thereunder.
Selling Shareholder: An entity (i) which beneficially owns Registrable
Shares and (ii) which is listed (or which the Company has an obligation to list
pursuant to Section 5 of this Agreement) as a potential selling shareholder in
the Registration Statement filed pursuant to this Agreement.
Series A Preferred Shares: The 8.625% Series A Cumulative Convertible
Preferred Shares of Beneficial Interest, liquidation preference $25.00 per
share, of the Company, sold by the Company to the Initial Purchaser pursuant to
the terms and conditions of the Purchase Agreement, including any shares sold
pursuant to the Initial
Shares: The Series A Preferred Shares and the Underlying Common
Shares.
Underlying Common Shares: The Common Shares into which the Series A
Preferred Shares are convertible or which may be issued upon redemption of the
Series A Preferred Shares.
Underlying Offering: A sale of securities of the Company to an
underwriter or underwriters for reoffering to the public.
Units: Units of limited partnership interest in the Partnership.
SHELF REGISTRATION.
As set forth in Section 5 of this Agreement, the Company agrees to file
with the Commission as soon as reasonably practicable, but in no event later
than sixty (60) calendar days after the Issue Date, as shelf Registration
Statement with respect to the sale from time to time by the Holders (or
beneficial owners, in the case of shares held in street name or held by a
nominee of The Depository Trust Company) of any and all Registrable Shares. The
Company shall use its best efforts to cause such Registration Statement to be
declared effective by the Commission as soon as practicable thereafter and to
remain effective until such time as non of the Shares are Registrable Shares.
EXPENSES.
As between the Company, on the one hand, and the Holders and Selling
Shareholders, on the other, the Company shall pay all Registration Expenses in
connection with the registration of the Registrable Shares pursuant to this
Agreement; and the Holder or Holders or Selling Shareholders shall pay all
broker's commissions and
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transfer taxes, if any, and any other expense not specifically allocated to the
Company pursuant to this Agreement relating to the sale or disposition of such
Holder's Registrable Shares pursuant to any Registration Statement; provided,
however, that in connection with an Underwritten Offering, the Selling
Shareholders participating in such Underwritten Offering shall reimburse the
Company for all Registration Expenses reasonably incurred by the Company and any
expenses incidental thereto, in each case to the extent that such expenses would
not have been incurred by the Company but for the Underwritten Offering,
including, without limitation, all reasonable expenses incurred by the Company
in causing the preparation of accountants' "comfort letters" and opinions of
counsel to the Company requested by such Selling Shareholders or the
representative underwriter; and among such Selling Shareholders such expenses
shall be allocated pro rata, according to the number of Shares sold by each
Selling Shareholder in such offering, or such other method as may be agreed upon
by Selling Shareholders.
RULES 144 AND 144A.
During such time as any of the Shares are Registrable Shares, the
Company shall use its best efforts to file the reports required to be filed by
it under the Securities Act and the Exchange Act in a timely manner sufficient
to satisfy the condition set forth in Rule 144(c), and during such time as any
Series A Preferred Shares are Registrable Shares as described herein, the
Company shall make available such other information, if any, as required by, and
so long as necessary to permit sales of such Series A Preferred Shares pursuant
to, Rule 144A.
REGISTRATION PROCEDURES.
THE COMPANY SHALL USE ITS BEST EFFORTS TO CAUSE THE REGISTRATION STATEMENT
RELATING TO THE REGISTRABLE SHARES TO BE DECLARED EFFECTIVE UNDER THE SECURITIES
ACT. PURSUANT TO SUCH OBLIGATION THE COMPANY SHALL:
prepare and file with the Commission, as specified in this Agreement, a
Registration Statement, which Registration Statement shall comply as to form in
all material respects with the requirements of the Securities Act, and use its
best efforts to cause such Registration Statement to become effective as soon as
possible after filing and remain effective until such time, as none of the
Shares are Registrable Shares;
notify Holders (including notifying The Depository Trust Company in the manner
required by The Depository Trust Company) of the Registrable Shares of their
right under this Agreement to be named as Selling Shareholders in the
Registration Statement and, pursuant to Section 5(B) below, include as named
Selling Shareholders in the Registration Statement those beneficial owners of
Registrable Shares who return such completed questionnaires to the Company as
the Company may reasonably request;
subject to Section 5(A)(i) of this Agreement, (i) prepare and file with the
Commission such amendments and post-effective amendments to each such
Registration Statement as may be necessary to keep such Registration Statement
effective for the period described in Section 5(A)(a), (ii) cause each such
Prospectus contained therein to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 or any
similar rule that may be adopted under the Securities Act, and (iii) comply with
the provisions of the Securities Act so as to permit the sale and resale of such
Registrable Shares by the Holder or Holders (and, in the case of Shares held in
street name or by a nominee of The Depository Trust Company, the Selling
Shareholders) in accordance with customary methods of sale or distribution,
including through brokers' transactions and block trades, as well as any other
intended method or methods of distribution reasonably requested by the Initial
Purchaser or Holder (or, in the case of Shares held in street name or by a
nominee of The Depository Trust Company, the Selling Shareholders) by written
notice to the Company prior to the filing of the Registration Statement, or the
applicable prospectus supplement or post-effective amendment; provided, however,
that while the Company must disclose the possibility of Underwritten Offerings
in the "Plan of Distribution" section, if so requested by a Holder (or, in the
case of Shares held in street name or by a nominee of The Depository Trust
Company, a beneficial owner) of Registrable Shares, and must allow certain due
diligence as set forth in paragraph (j) below, nothing in this Agreement shall
obligate the Company to enter into an underwriting or indemnity agreement with
any underwriter, to make any public announcements (other than such as may be
required by law or the stock exchange rules applicable to the Company) or to
participate in any "roadshow" sales presentations.
furnish to any Selling Shareholder named in any Prospectus, without charge, as
many copies of such Prospectus, and any amendment or supplement thereto as such
Selling Shareholder may reasonably request, in order to facilitate the public
sale or other disposition of the Registrable Shares; the Company consents to the
use of any such
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Prospectus by such Selling Shareholder in connection with the offering and sale
of the Registrable Shares covered by any such Prospectus in accordance with the
plan of distribution described therein;
use its best efforts to register or qualify, or obtain exemption from
registration or qualification for, all Registrable Shares by the time the
Registration Statement is declared effective by the Commission under all
applicable Canadian, federal or state securities or "blue sky" laws of such
jurisdictions as the Initial Purchaser or any Selling Shareholder shall
reasonably request in writing, keep each such registration or qualification or
exemption effective during the period such Registration Statement is required to
be kept effective pursuant to Section 5(A)(a) of this Agreement and do any and
all other acts which may be reasonably necessary to enable each Selling
Shareholder to consummate the disposition in each such jurisdiction of such
Registrable Shares beneficially owned by such Selling Shareholder in accordance
with the Registration Statement; provided, however, that the company shall not
be required to (i) qualify generally to do business in any jurisdiction or to
register as a broker or dealer in such jurisdiction where it would not otherwise
be required to qualify or register but for this Section 5(A)(e), (ii) subject
itself to taxation in any such jurisdiction, or (iii) submit to the general
service of process in any such jurisdiction;
notify the Initial Purchaser and each Selling Shareholder promptly and, if
requested by the Initial Purchaser or any Selling Shareholder, confirm such
information in writing (i) when a Registration Statement has become effective
and when any post-effective amendments and supplements thereto become effective,
(ii) of the issuance by the Commission or any state securities authority of any
stop order suspending the effectiveness of a Registration Statement or the
initiation of any proceedings for that purpose, (iii) of any request by the
Commission or any other federal or state governmental authority for amendments
or supplements to a Registration Statement or related Prospectus or for
additional information, and (iv) of the happening of any event during the period
a Registration Statement is required to remain effective as a result of which
such Registration Statement or the related Prospectus or any documents
incorporated by reference therein contains any untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading (which information shall
be accompanied by an instruction to suspend the use of the Prospectus until the
requisite changes have been made);
during the period of time referred to in Section 5(A)(a) of this Agreement, use
reasonable efforts to avoid the issuance of, or, if issued, obtain the
withdrawal of, any enjoining order suspending the use or effectiveness of a
Registration Statement or suspending the qualification (or exemption from
qualification) of any of the Registrable Shares for sale in any jurisdiction, at
the earliest possible moment;
upon request, furnish to each requesting Selling Shareholder, without charge, at
least one conformed copy of each Registration Statement and any post-effective
amendment thereto (without documents incorporated therein by reference or
exhibits thereto, unless requested);
except as provided in Section 8 hereof, upon the occurrence of any event
contemplated by Section 5(A)(f)(iv) of this Agreement, use its best efforts
promptly to prepare a supplement or post-effective amendment to a Registration
Statement or the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered
by the Selling Shareholders to the purchasers of the Registrable Shares, such
Prospectus will not contain any 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 the light of the circumstances under which they were
made, not misleading;
if requested by the representative underwriters, if any, or any Selling
Shareholders of Registrable Shares being sold in connection with an Underwritten
Offering, (i) promptly incorporate in a Prospectus supplement or post-effective
amendment such material identifying information as the representative of the
underwriters, if any, or such Selling Shareholders indicate relates to them (and
such information shall be deemed to have been furnished in writing to the
Company by the Holders of Registrable Shares being sold in such Underwritten
Offering expressly for use in the Registration Statement), and (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 such
matters to be incorporated in such Prospectus supplement or post-effective
amendment;
in connection with an Underwritten Offering of Registrable Shares:
UPON ANY REASONABLE REQUEST RECEIVED IN CONNECTION WITH SUCH AN
UNDERWRITTEN OFFERING, MAKE AVAILABLE FOR INSPECTION BY
REPRESENTATIVES OF THE SELLING SHAREHOLDERS AND THE REPRESENTATIVE
OF ANY
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UNDERWRITERS PARTICIPATING IN ANY DISPOSITION PURSUANT TO A
REGISTRATION STATEMENT AND ANY SPECIAL COUNSEL OR ACCOUNTANT
RETAINED BY SUCH SELLING SHAREHOLDERS OR UNDERWRITERS, ALL
FINANCIAL AND OTHER RECORDS, PERTINENT CORPORATE DOCUMENTS AND
PROPERTIES OF THE COMPANY AND THE PARTNERSHIP AND THEIR
SUBSIDIARIES AND CAUSE THEIR RESPECTIVE OFFICERS, DIRECTORS AND
EMPLOYEES TO SUPPLY ALL INFORMATION REASONABLY REQUESTED BY ANY
SUCH REPRESENTATIVES, THE REPRESENTATIVE OF THE UNDERWRITERS, THE
SPECIAL COUNSEL OR ACCOUNTANTS IN CONNECTION WITH A REGISTRATION
STATEMENT, EXCEPT TO THE EXTENT THAT THE REQUESTED ITEMS ARE
PUBLICLY AVAILABLE; PROVIDED, HOWEVER, THAT SUCH RECORDS,
DOCUMENTS OR INFORMATION WHICH THE COMPANY DETERMINES, IN GOOD
FAITH, TO BE CONFIDENTIAL AND NOTIFIES SUCH REPRESENTATIVES,
REPRESENTATIVE OF THE UNDERWRITERS, SPECIAL COUNSEL FOR
ACCOUNTANTS ARE CONFIDENTIAL SHALL BE KEPT CONFIDENTIAL AND SHALL
NOT BE DISCLOSED BY THE REPRESENTATIVES, REPRESENTATIVE OF THE
UNDERWRITERS, SPECIAL COUNSEL OR ACCOUNTANTS UNLESS (A) SUBJECT TO
THE BLACK-OUT PERIODS DESCRIBED IN SECTION 6 OF THIS AGREEMENT
DURING WHICH NO INFORMATION NEED BE PROVIDED, THE DISCLOSURE OF
SUCH RECORDS, DOCUMENTS OR INFORMATION IS NECESSARY TO AVOID OR
CORRECT A MATERIAL MISSTATEMENT OR OMISSION IN A REGISTRATION
STATEMENT OR PROSPECTUS, (B) THE RELEASE OF SUCH RECORDS,
DOCUMENTS OR INFORMATION IS ORDERED PURSUANT TO A SUBPOENA OR
OTHER ORDER FROM A COURT OF COMPETENT JURISDICTION, OR (C) SUCH
RECORDS, DOCUMENTS OR INFORMATION HAVE BEEN GENERALLY MADE
AVAILABLE TO THE PUBLIC; AND PROVIDED, FURTHER, THAT THE FOREGOING
INSPECTION AND INFORMATION GATHERING SHALL, TO THE GREATEST EXTENT
POSSIBLE, BE COORDINATED ON BEHALF OF THE SELLING SHAREHOLDERS AND
THE OTHER PARTIES ENTITLED THERETO BY ONE COUNSEL DESIGNATED BY
AND ON BEHALF OF SUCH SELLING SHAREHOLDERS AND OTHER PARTIES
REASONABLY ACCEPTABLE TO THE COMPANY;
IN GOOD FAITH CAUSE ITS ACCOUNTANTS TO PREPARE AND DELIVER TO THE
SELLING SHAREHOLDERS AND UNDERWRITERS A "COMFORT LETTER" AS
DESCRIBING IN STATEMENT OF AUDITING STANDARDS NO. 72 PUBLISHED BY
THE AMERICAN INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS (OR ANY
SUCCESSOR PUBLICATION); PROVIDED, HOWEVER, THAT THE NEGOTIATION OF
SUCH COMFORT LETTER SHALL BE ENTIRELY THE RESPONSIBILITY OF THE
SELLING SHAREHOLDERS AND THEIR REPRESENTATIVES AND THE COMPANY
SHALL NOT BE LIABLE IN THE EVENT THAT SUCH ACCOUNTANTS FAIL OR
REFUSE TO DELIVER ALL OR ANY PART OF THE REQUESTED LETTER;
IN GOOD FAITH CAUSE ITS ATTORNEYS TO PREPARE AND DELIVER TO THE SELLING
SHAREHOLDERS AND UNDERWRITERS SUCH OPINION LETTERS AS HAVE BEEN
CUSTOMARILY DELIVERED IN THE COMPANY'S RECENT PUBLIC OFFERINGS AND
CONCERNING SUCH OTHER MATTERS AS THE SELLING SHAREHOLDERS OR THE
UNDERWRITERS MAY REASONABLY REQUEST; PROVIDED, HOWEVER, THAT THE
NEGOTIATION OF SUCH OPINION LETTERS SHALL BE ENTIRELY THE
RESPONSIBILITY OF THE SELLING SHAREHOLDERS AND THEIR
REPRESENTATIVES AND THE COMPANY SHALL NOT BE LIABLE IN THE EVENT
THAT SUCH ATTORNEYS FAIL OR REFUSE TO DELIVER ALL OR ANY PART OF
THE REQUESTED LETTER;
provided however, that the Company shall not be required to comply with this
Section 5(A)(k) unless the Underwritten Offering involves at least 500,000
Shares; and provided, further, that the Company shall not be required to comply
with this Section 5(A)(k) more than once in any twelve (12) month period.
Whenever a Selling Shareholder (an "Initiating Seller") proposes to undertake an
Underwritten Offering in which the Company will be asked to provide any of the
items specified in this Section 5(A)(k), such Initiating Seller may designate
the lead underwriter and shall prepare, and the Company shall deliver at the
Initiating Seller's expense, a notice to the Holders (including giving notice to
The Depository Trust Company, in the manner required by The Depository Trust
Company) of Registrable Shares at their address set forth in Section 9(c) of
this Agreement. Such notice shall invite the Holders to participate in the
Underwritten Offering upon their written acceptance to such Initiating Seller at
a stated address with a response deadline no sooner than twenty (20) days from
the date of delivery of the notice. All holders of Registrable Shares who return
a timely acceptance to the Initiating Seller shall be entitled to participate in
the Underwritten Offering; provided, however, that if the total number of Shares
proposed to be included in the Underwritten Offering is greater than the amount
which the lead underwriter believes can successfully be sold in the Underwritten
Offering, then the Shares that each participating seller is allowed to include
in the Underwritten Offering shall be reduced to
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pro rate according to the number of Shares each such seller originally proposed
to include in the Underwritten Offering.
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use its reasonable best efforts to list all Registrable Shares on the New York
Stock Exchange or another nationally recognized exchange or the Nasdaq National
Market as soon as reasonably practicable after the listing requirements are met;
prepare and file in a timely manner all documents and reports required by the
Exchange Act which are incorporated by reference into any Registration
Statement;
provide a CUSIP number for all Registrable Shares, not later than the effective
date of the Registration Statement;
use its best efforts to comply with all applicable rules and regulations of the
Commission and make generally available to its securityholders, as soon as
reasonably practicable, earning statements covering at least 12 months which
satisfy the provision of Section 11(a) of the Securities act and Rule 158 (or
any similar rule promulgated under the Securities Act) thereunder;
provide and cause to be maintained a transfer agent for all Registrable Shares
covered by any Registration from and after a date not later than the effective
date of such Registration Statement;
in connection with any sale or transfer of the Registrable Shares that will
result in such Shares no longer being restricted from resale without
registration under the Securities Act, cooperate with the Selling Shareholders
and the representative of the underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing the Registrable Shares to
be sold, which certificates shall not bear any restrictive legends, and to
enable such Registrable Shares to be in such denominations and registered in
such names as the representative of the underwriters, if any, or Selling
Shareholders may request at least three (3) Business Days prior to any sale of
the Registrable Shares; and
upon the effectiveness of the first Registration Statement filed under this
Agreement, the Company will take such actions and make such filings as are
necessary to effect the registration of the Series A Preferred Shares under the
Exchange Act simultaneously with or immediately following the effectiveness of
the Registration Statement; and
in order to allow Selling Shareholders to sell their Shares privately pursuant
to Rule 144 (during the periods, and in the quantities and manner allowed by
such rule) even though such Shares may also be registered for resale under the
Registration Statement, the Company agrees to disclose under the caption "Plan
of Distribution" (or other appropriate location) in the Registration Statement
that sales by the Selling Shareholders pursuant to Rule 144 may occur(provided,
however, that if the Commission staff informs the Company in writing that the
staff believes the inclusion of such a statement to be inappropriate, the
Company may delete it).
THE COMPANY MAY REQUIRE EACH HOLDER (OR EACH BENEFICIAL OWNER, IN THE CASE OF
SHARES HELD IN STREET NAME OR BY A NOMINEE OF THE DEPOSITORY TRUST COMPANY) WHO
WISHES TO BE NAMED AS A SELLING SHAREHOLDER IN THE REGISTRATION STATEMENT TO
FURNISH TO THE COMPANY SUCH INFORMATION REGARDING THE PROPOSED DISTRIBUTION BY
SUCH HOLDER (OR BENEFICIAL OWNER) OF REGISTRABLE SHARES AS THE COMPANY MAY FROM
TIME TO TIME REASONABLY REQUEST IN WRITING AND NO HOLDER (OR BENEFICIAL OWNER)
SHALL BE ENTITLED TO BE NAMED AS A SELLING SECURITYHOLDER IN ANY REGISTRATION
STATEMENT AND NO HOLDER (OR BENEFICIAL OWNER) SHALL BE ENTITLED TO USE THE
PROSPECTUS FORMING A PART THEREOF IF SUCH HOLDER (OR BENEFICIAL OWNER) DOES NOT
PROVIDE SUCH INFORMATION TO THE COMPANY. THE COMPANY SHALL, TO THE EXTENT IT
FIRST RECEIVES SUCH INFORMATION FROM HOLDERS (OR BENEFICIAL OWNERS) AFTER
INITIAL EFFECTIVENESS OF THE SHELF REGISTRATION STATEMENT, FILE A SUPPLEMENTAL
PROSPECTUS OR POST-EFFECTIVE AMENDMENT WITHIN 20 BUSINESS DAYS OF RECEIVING SUCH
COMPLETE INFORMATION UNLESS THE COMPANY RECEIVES COMPLETE INFORMATION FROM
HOLDERS (OR BENEFICIAL OWNERS) HOLDING (OR BENEFICIALLY OWNING) AT LEAST $2.0
MILLION AGGREGATE LIQUIDATION PREFERENCE OF SERIES A PREFERRED SHARES, IN WHICH
CASE SUPPLEMENTAL PROSPECTUSES WILL BE FILED WITHIN 10 BUSINESS DAYS OF
RECEIVING SUCH INFORMATION; PROVIDED, HOWEVER, THAT TO THE EXTENT THAT THE
EFFECTIVENESS OF SUCH A POST-EFFECTIVE AMENDMENT IS DELAYED AS A RESULT OF
INFORMATION PROVIDED, OR FAILED TO BE PROVIDED, BY A HOLDER (OR BENEFICIAL
OWNER), SUCH DELAY (BUT ONLY TO SUCH EXTENT) SHALL NOT BE INCLUDED IN THE
CALCULATION OF THE 30-DAY PERIOD REFERRED TO IN SECTION 7(A)(III) OF THIS
AGREEMENT.
UPON RECEIPT OF WRITTEN NOTICE FROM THE COMPANY OF THE HAPPENING OF ANY EVENT OF
THE KIND DESCRIBED IN SECTION 5(A)(F)(II), (III) OR (IV) OR SECTION 6 OF THIS
AGREEMENT, EACH SELLING SHAREHOLDER SHALL IMMEDIATELY DISCONTINUE DISPOSITION OF
REGISTRABLE SHARES PURSUANT TO A REGISTRATION STATEMENT UNTIL SUCH SELLING
SHAREHOLDER, OR ITS NOMINEE, RECEIVES COPIES OF A SUPPLEMENTED OR AMENDED
PROSPECTUS OR THE FACTS AND CIRCUMSTANCES GIVING RISE TO SUCH NOTICE ARE
OTHERWISE CURED TO THE COMPANY'S SATISFACTION. IF SO REQUESTED BY
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THE COMPANY, THE SELLING SHAREHOLDERS SHALL DELIVER TO THE COMPANY (AT THE
EXPENSE OF THE COMPANY) ALL COPIES IN THEIR POSSESSION, OTHER THAN PERMANENT
FILE COPIES THEN IN THE SELLING SHAREHOLDERS' POSSESSION, OF THE PROSPECTUS
COVERING SUCH REGISTRABLE SHARES CURRENT AT THE TIME OF RECEIPT OF SUCH NOTICE.
BLACK OUT PERIOD.
Following the effectiveness of a Registration Statement (and the
filings with any state securities commissions), the Company, by written notice
to the Initial Purchaser and to the Selling Shareholders, may direct the Selling
Shareholders to suspend sales of the Registrable Shares pursuant to the
Registration Statement if any of the following events shall occur: (i) an
Underwritten Offering by the Company where the Company is advised by the
representative of underwriters for such Underwritten Offering that the sale of
Registrable Shares pursuant to the Registration Statement would have a material
adverse effect on the Company's primary offering; or (ii) pending negotiations
relating to, or consummation of, a transaction or the occurrence of an event
that requires additional disclosure of material information by the Company in
the Registration Statement and which has not been so disclosed; or (iii) a
material corporate transaction is pending, the disclosure of which should be set
forth in the Registration Statement and the Board of Trustees of the Company
shall have determined in good faith that such disclosure would not be in the
best interest of the Company and its stockholders.
In the case of an event which causes the Company to suspend the
effectiveness of a Registration Statement (a "Suspension Event"), the Company
may give written notice (a "Suspension Notice") to the Selling Shareholders at
the addresses set forth in the questionnaires such Selling Shareholders returned
to the Company pursuant to Section 5(A)(b) of this Agreement and otherwise in
the share transfer records of the Company and to the Initial Purchaser
(Attention: Xxx X. Xxxxx) to suspend sales of the Registrable Shares so that the
Company may amend or update the Registration Statement; provided, however, that
such suspension shall continue only for so long as the Suspension Event, or its
effect is continuing and the Company is taking all reasonable steps to terminate
suspension of the effectiveness of the Registration Statement as promptly as
possible. The Selling Shareholders shall not effect any sales of the Registrable
Shares pursuant to such Registration Statement at any time after receipt of a
Suspension Notice from the Company (and prior to the receipt of an End of
Suspension Notice (defined below)). If so requested by the Company, the Selling
Shareholders will deliver to the Company (at the expense of the Company) all
copies in their possession, other than permanent file copies then in the
Holders' possession, of the Prospectus covering such Registrable Shares at the
time of receipt of the Suspension Notice. The Selling Shareholders may
recommence effecting sales of the Registrable Shares pursuant to the
Registration Statement (or such filings) following further notice to such effect
(an "End of Suspension Notice") from the Company, which End of Suspension Notice
shall be given by the Company to the Selling Shareholders and the Initial
Purchaser in the manner described above promptly following the conclusion of any
Suspension Event.
SPECIAL DISTRIBUTIONS
If (i) within 60 calendar days after the Issue Date, the resale of shelf
Registration Statement referred to in Section 2 of this Agreement has not been
filed with the Commission, (ii) within 120 calendar days after the Issue Date,
such resale shelf Registration Statement has not been declared effective by the
Commission other than as a result of a change in applicable law or a change in
the Commission staff's interpretation thereof or delays by the Commission beyond
the Company's control, (iii) after the Registration Statement has been declared
effective, the Registration Statement ceases to be effective or otherwise
becomes unusable by the Selling Shareholders for any reason except as provided
in Section 6 and other than as a result of a change in applicable law or a
change in the Commission staff's interpretation thereof, and the aggregate
number of calendar days in any consecutive twelve (12) month period for which
the Registration Statement shall not be usable exceeds 30 days in the aggregate
(each such event referred to in clauses (i) though (iii), inclusive, a
"Registration Default"), additional distributions ("Special Distributions")
shall be payable quarterly in arrears to Holders (in addition to any regular
distribution accruing or payable on such Shares) and will accrue beginning (and
including) the date on which any such Registration Default shall occur and
ending (but excluding) the date on which all Registration Defaults have been
cured. Special Distributions shall accrue at a rate of $0.0625 (equivalent to
0.25% of the liquidation preference) per annum per Series A Preferred Share
during the 90-calendar-day period immediately following the occurrence of any
Registration Default, which rate shall increase by $0.0625 (equivalent to 0.25%
of the liquidation preference) per annum per Series A Preferred Share at the
beginning of each subsequent 90-calendar-day period, but in no event shall such
rate exceed $0.25 (equivalent to 1.00% of the liquidation preference) per annum
per Series A Preferred Share. Special Distributions shall accrue on any
Underlying Common Shares into which the Series A Preferred Shares have been
converted or
9
redeemed, at a rate adjusted to provide such Holder with the same economic
benefit as though such Underlying Common Shares had not been converted or
redeemed from the Series A Preferred Shares.
Special Distributions shall cease to accrue in respect of any Registrable Share
on such date as such Share is no longer a Registrable Share.
The Company shall cause the Special Distributions to be paid on the regular
dividend date, whether or not the Company shall have declared a dividend or
other distribution on the Registrable Shares for such quarter, and shall be
payable to the holder of record of Registrable Shares on the record date
relating to such regular dividend date; provided, however, that if the holder of
record is The Depository Trust Company, or its nominee, and such record holder
cannot accommodate the transfer of such Special Distributions to the beneficial
owner entitled thereto, then the Company shall pay such Special Distributions to
the beneficial owner at the address provided in Section 9(c) of this Agreement.
If for any quarter in which Special Distributions are payable in respect of
Underlying Common Shares, no record date is declared on the Common Shares, then
the record date for such Underlying Common Shares shall be deemed to be the same
as the record date for the Series A Preferred Shares.
INDEMNIFICATION AND CONTRIBUTION.
Indemnification by the Company. The Company agrees to indemnify and hold
harmless (i) the Initial Purchaser, (ii) each Holder (and, in the case of shares
held in street name or by a nominee of The Depository Trust Company, each
Selling Shareholder), (iii) each Person, if any, who is a Controlling Person of
any of the foregoing, and (iv) the respective officers, directors, partners,
employees, representatives and agents of the Initial Purchaser and each Holder,
Selling Shareholder or any Controlling Person as follows:
FROM AND AGAINST ANY AND ALL LOSS, CLAIM, LIABILITY AND DAMAGE
WHATSOEVER, AS INCURRED, ARISING OUT OF ANY UNTRUE OR ALLEGED
UNTRUE STATEMENT OF A MATERIAL FACT CONTAINED IN ANY REGISTRATION
STATEMENT (OR ANY SUPPLEMENT OR AMENDMENT THERETO) PURSUANT TO
WHICH REGISTRABLE SHARES WERE REGISTERED UNDER THE SECURITIES ACT,
INCLUDING ALL DOCUMENTS INCORPORATED THEREIN BY REFERENCE, OR THE
OMISSION OR ALLEGED OMISSION TO STATE A MATERIAL FACT REQUIRED TO
BE STATED THEREIN OR NECESSARY TO MAKE THE STATEMENTS THEREIN NOT
MISLEADING OR ARISING OUT OF ANY UNTRUE STATEMENT OR ALLEGED
UNTRUE STATEMENT OF A MATERIAL FACT CONTAINED IN ANY PROSPECTUS
(OR ANY AMENDMENT OR SUPPLEMENT THERETO), INCLUDING ALL DOCUMENTS
INCORPORATED THEREIN BY REFERENCE, OR THE OMISSION OR ALLEGED
OMISSION TO STATE A MATERIAL FACT REQUIRED TO BE STATED THEREIN OR
NECESSARY IN ORDER TO MAKE THE STATEMENTS THEREIN, IN THE LIGHT OF
THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING;
PROVIDED, HOWEVER, THAT SUCH INDEMNITY WITH RESPECT TO ANY
REGISTRATION STATEMENT OR PROSPECTUS SHALL NOT INURE TO THE
BENEFIT OF ANY HOLDER, SELLING SHAREHOLDER OR THE INITIAL
PURCHASER (OR ANY CONTROLLING PERSON THEREOF) TO THE EXTENT THAT
ANY SUCH LOSS, CLAIM, LIABILITY, DAMAGE OR EXPENSE ARISES OUT OF
SUCH INDEMNIFIED PERSON'S FAILURE TO SEND OR GIVE A COPY OF THE
REVISED REGISTRATION STATEMENT OR FINAL PROSPECTUS, AS THE SAME
MAY BE THEN SUPPLEMENTED OR AMENDED, TO THE PERSON ASSERTING AN
UNTRUE STATEMENT OR ALLEGED UNTRUE STATEMENT OR OMISSION OR
ALLEGED OMISSION AT OR PRIOR TO THE WRITTEN CONFIRMATION OF THE
SALE OF REGISTRABLE SHARES TO SUCH PERSON IF SUCH STATEMENT OR
OMISSION WAS CORRECTED IN SUCH REVISED REGISTRATION STATEMENT OR
SUCH FINAL PROSPECTUS AND THE COMPANY SHALL HAVE MADE AVAILABLE TO
SUCH INDEMNIFIED PERSON A SUFFICIENT NUMBER OF SUCH REVISED
REGISTRATION STATEMENT OR SUCH FINAL PROSPECTUS IN A TIMELY MANNER
SO AS TO PERMIT SUCH HOLDER, SELLING SHAREHOLDER OR THE INITIAL
PURCHASER TO SEND OR GIVE A COPY OF THE REVISED REGISTRATION
STATEMENT OR SUCH FINAL PROSPECTUS CONTAINING SUCH CORRECTION
PRIOR TO THE WRITTEN CONFIRMATION OF THE PURCHASE AND SALE OF SUCH
REGISTRABLE SHARES;
FROM AND AGAINST ANY AND ALL LOSS, LIABILITY, CLAIM AND DAMAGE
WHATSOEVER, AS INCURRED, TO THE EXTENT OF THE AGGREGATE AMOUNT
PAID IN SETTLEMENT OF ANY LITIGATION, OR INVESTIGATION OR
PROCEEDING BY ANY GOVERNMENTAL AGENCY OR BODY, COMMENCED OR
THREATENED, OR OF ANY CLAIM WHATSOEVER BASED UPON ANY SUCH UNTRUE
STATEMENT OR OMISSION, IF SUCH SETTLEMENT IS EFFECTED WITH THE
WRITTEN CONSENT OF THE COMPANY; AND
FROM AND AGAINST ANY AND ALL EXPENSE REASONABLY INCURRED (INCLUDING
REASONABLE FEES AND DISBURSEMENTS OF COUNSEL) IN INVESTIGATING,
PREPARING OR DEFENDING AGAINST ANY LITIGATION, OR INVESTIGATION OR
10
PROCEEDING BY ANY GOVERNMENTAL AGENCY OR BODY COMMENCED OR
THREATENED, IN EACH CASE WHETHER OR NOT A PARTY, OR ANY CLAIM
WHATSOEVER BASED ON ANY SUCH UNTRUE STATEMENT OR OMISSION, OR ANY
SUCH ALLEGED STATEMENT OR OMISSION, BUT ONLY (A) TO THE EXTENT
THAT SUCH EXPENSE WAS INCURRED IN CONNECTION WITH A MATTER
REFERRED TO IN (I) OR (II) ABOVE, (B) IN THE CASE OF (II) ABOVE,
TO THE EXTENT THAT A REASONABLE ESTIMATE OF SUCH EXPENSES WAS
PROVIDED TO THE COMPANY BEFORE THE SETTLEMENT (AND THE COMPANY
SHALL NOT BE LIABLE FOR ANY AMOUNTS IN EXCESS OF 110% OF SUCH
ESTIMATE), AND (C) IN ANY CASE, TO THE EXTENT THAT ANY SUCH
EXPENSE IS NOT PAID UNDER SUBPARAGRAPH (I) OR (II) ABOVE;
provided, however, that this indemnity agreement does
not apply to any Holder or Selling Shareholder with
respect to any loss, liability, claim, damage or
expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with
written information furnished to the Company by such
Holder or Selling Shareholder expressly for use in a
Registration Statement (or any amendment thereto) or
any Prospectus (or any amendment or supplement
thereto).
Indemnification by Selling Shareholders. Each Shareholder, on a pro rata basis,
agrees to indemnify and hold harmless the Company, the Partnership, the General
Partner, and trustees, officers, partners, employees, representatives and agents
of the Company (including each Controlling Person of the Company) against any
and all loss, liability, claim, damage and expenses described in the indemnity
contained in Section 8(a) of this Agreement (provided, however, that any
settlement described in Section 8(a) of this Agreement is effected with the
written consent of such Selling Shareholder), as incurred, but only with respect
to such untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) or any
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by the Selling
Shareholder or its underwriters, if any, expressly for use in such Registration
Statement (or any amendment thereto) or such Prospectus (or any amendment or
supplement thereto), and provided, further, that no Selling Shareholder shall be
liable for any amount in excess of the proceeds received by such Selling
Shareholder from the sale of such Selling Shareholder's Registrable Shares
pursuant to a Registration Statement or a Prospectus, as the case may be.
Conduct of Indemnification Proceedings. Each party shall give reasonably prompt
written notice to each indemnifying party of any action or proceeding commenced
against it in respect of which indemnity may be sought under this Agreement, but
failure to so notify an indemnifying party shall not relieve it from any
liability which it may have under this indemnity agreement, except to the extent
that the indemnifying party is actually and materially prejudiced by such
failure to give written notice. If the indemnifying party so elects within a
reasonable time after receipt of such written notice, the indemnifying party may
assume the defense of such action or proceeding at such indemnifying party's own
expense with counsel chosen by the indemnifying party and approved by the
indemnified parties in such action or proceeding, which approval shall not be
unreasonably withheld; provide, however, that, if such indemnified party or
parties reasonably determines that a conflict of interest exists where it is
advisable for such indemnified party or parties to be represented by separate
counsel or that, upon advice of counsel, there may be legal defenses to them
which are different from or in addition to those available to the indemnifying
party, then the indemnifying party shall not be entitled to assume such defense
and the indemnified party or parties shall be entitled to one separate counsel
(an any necessary local counsel) at the indemnifying party's expense. If an
indemnifying party is not entitled to assume the defense of such action or
proceeding as a result of the proviso to the preceding sentence, such
indemnifying party's counsel shall be entitled to conduct such indemnifying
party's defense and counsel for the indemnified party or parties shall be
entitled to conduct the defense of such indemnified party or parties, it being
understood that both such counsel will cooperate with each other to conduct the
defense of such action or proceeding as efficiently as possible. If an
indemnifying party is not so entitled to assume the defense of such action or
does not assume such defense, after having received the notice referred to in
the first sentence of this paragraph, the indemnifying party or parties will pay
the reasonable fees and expenses of not more than one counsel (and any necessary
local counsel) for the indemnified party or parties. In such event, however, no
indemnifying party will be liable for any settlement effected without the
written consent of such indemnifying party. No indemnifying party shall, without
consent of the indemnified party, consent to entry of any judgment or enter into
a settlement which does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such indemnified party of a release from all
liability in respect to such claim or litigation. If an indemnifying party is
entitled to assume, and assumes, the defense of such action or proceeding in
accordance with this paragraph, such
11
indemnifying party shall not be liable for any fees and expenses for counsel for
the indemnified parties incurred thereafter in connection with such action or
proceeding.
Contribution. In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided in this Section 8 is for
any reason held to be unenforceable, unavailable or insufficient although
applicable in accordance with its terms, the Company and a Selling Shareholder
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by such indemnity agreement incurred by the
Company and the Selling Shareholder in such proportion as is appropriate to
reflect the relative fault of the Company, on the one hand, and the Selling
Shareholder, on the other (taking into consideration the fact that the
provisions of the registration rights under this Agreement are a material
inducement to the Initial Purchaser and the Selling Shareholders to purchase the
Registrable Shares), in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. Relative fault shall be determined
by reference to, among other things, whether an untrue or alleged untrue
statement of a material fact or an omission of a martial fact related to
information supplied by or available to the Company, on the one hand, or the
Selling Shareholder, on the other hand, and by the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. Notwithstanding the foregoing, 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. No Selling Shareholder shall be
liable for any amount in excess of the proceeds received from such Selling
Shareholder from the sale of such Selling Shareholder's Registrable Shares
pursuant to a Registration Statement or a Prospectus, as the case may be. For
purposes of this Section 8, each Person, if any, who is a Controlling Person of
a Selling Shareholder shall have the same rights to contribution as such Selling
Shareholder, and each trustee of the Company, each officer of the Company who
signed the Registration Statement and each Person, if any, who is a Controlling
Person of the Company or the Partnership or the General Partner and each
partner, employee, representative or agent of the Company shall have the same
rights to contribution as the Company. Each Person entitled to contribution
agrees that upon the service of a summons or other initial legal process upon it
in any action instituted against it in respect of which contribution may be
sought, it shall promptly give written notice of such service to the Person or
Persons from whom contribution may be sought, but the omission so to notify such
Person or Persons of any such service shall not relieve the Person from whom
contribution may be sought from any obligation it may have under this Agreement
or otherwise unless failure to provide such written notice actually prejudices
such Person or Persons.
MISCELLANEOUS.
Remedies. In the event a breach by the Company or by a Holder or Selling
Shareholder of any of their obligations under this Agreement, each Holder or
Selling Shareholder or the Company, 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. It is acknowledged and
agreed that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach of any of the provisions of this Agreement and
hereby further agrees that, in the event of any action for specific performances
in respect of such breach, the parties shall waive the defense that a remedy at
law would be adequate.
Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions of this Agreement may not
be given, without the prior written consent of the Company and Holders
beneficially owning not less than fifty percent (50%) of the then outstanding
Registrable Shares; provided, however, that, for the purposes of this Agreement,
Registrable Shares that are owned, directly or indirectly, by either the Company
or an Affiliate of the Company shall not be deemed to be outstanding.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
of this Agreement with respect to a matter that relates exclusively to the
rights of a Selling Shareholder whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of any other Holder may be given by such Selling Shareholder; provided,
further, that the provisions of this sentence may not be amended, modified, or
supplemented except in accordance with the provisions of the immediately
preceding sentence.
Notices. All notices and other communications provided for this Agreement shall
be made in writing by hand-delivery, next-day air courier, certified first-class
mail, return receipt requested, telex or telecopy;
12
IF TO THE COMPANY, AS PROVIDED IN THE PURCHASE AGREEMENT,
IF TO THE INITIAL PURCHASER, AS PROVIDED IN THE PURCHASE AGREEMENT,
IF TO ANY HOLDER, TO THE ADDRESS OF SUCH HOLDER AS IT APPEARS IN THE
SHARE REGISTER OF THE COMPANY,
IF TO ANY SELLING SHAREHOLDER WHO IS NOT A RECORD HOLDER, TO THE MOST
RECENT ADDRESS OF SUCH PERSON PROVIDED BY OR ON BEHALF OF SUCH
PERSON TO THE COMPANY IN WRITING AS SUCH PERSON'S ADDRESS FOR
RECEIPT OF NOTICES UNDER THIS AGREEMENT (INCLUDING ANY ADDRESS
PROVIDED IN THE QUESTIONNAIRE REFERRED TO IN SECTION 5(A)(B) OF
THIS AGREEMENT), OR IF NONE HAS BEEN SO PROVIDED THEN TO THE
ADDRESS OF THE HOLDER OF RECORD OF SUCH SHARES AS IT APPEARS IN
THE SHARE REGISTRAR OF THE COMPANY.
Except as otherwise provided in this Agreement, all
such communications shall be deemed to have been duly
given when (A) delivered by hand, if personally
delivered, (B) one (1) Business Day after being timely
delivered to a next-day air courier, (C) five (5)
Business Days after being deposited in the mail,
postage prepaid, if mailed, (D) when answered back, if
telexed or (E) when receipt is acknowledged by the
recipient's telecopier machine, if telecopied.
Successors and Assigns. This agreement shall inure to the benefit of and be
binding upon the successors and permitted assigns of each of the parties and
shall inure to the benefit of each Holder (and, in the case of Shares held of
record in street name or by a nominee of The Depository Trust Company, each
beneficial owner of Registrable Shares). Each such Holder and each such
beneficial owner shall be deemed a third party beneficiary of this Agreement.
The Company may not assign its rights or obligations under this Agreement
without the prior written consent of each Holder. Notwithstanding the foregoing,
no assignee of the Company shall have any of the rights granted under this
Agreement until such assignee shall acknowledge its rights and obligations under
this Agreement by a signed written agreement pursuant to which such assignee
accepts such rights and obligations.
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.
Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the state of New York, as applied to contracts made and
performed within the State of New York without regard to principals of conflicts
of law.
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 in this Agreement shall remain in full force and effect
and shall in no way be affected, impaired or invalidated, and the parties hereto
shall use their reasonable efforts to find and employ an alternative means to
achieve the same or substantially the same result as 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 such term,
provision, covenant or restriction that may be hereafter declared invalid,
illegal, void or unenforceable.
Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the provisions of this Agreement. All
references made in this Agreement to "Section" refer to such Section of this
Agreement, unless expressly stated otherwise.
Attorneys' Fees. In any action or proceeding brought to enforce any provision of
this Agreement, or where any provision of this Agreement is validly asserted as
a defense, the prevailing party, as determined by the court, shall be entitled
to recover its reasonable attorneys' fees in addition to any other available
remedy.
[Signature page follows]
13
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
"COMPANY"
INNKEEPERS USA TRUST,
a Maryland real estate investment trust
By: /s/ Xxxxx Xxxxxx
____________________________________
Xxxxx Xxxxxx
Chief Financial Officer
The foregoing Agreement
is hereby confirmed and accepted as of the
date first above written.
"INITIAL PURCHASER"
EVEREN SECURITIES, INC., an Illinois corporation
By: /s/ Xxxx X. Xxxxxxxx
__________________________________________
Xxxx X. Xxxxxxxx
Senior Vice President
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