EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
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into as of July 12, 2001 among Xxxxxxxxxx Realty Investors, a Texas real estate
investment trust (the "Company"), and the Initial Purchasers (as hereinafter
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defined).
This Agreement is made pursuant to the Purchase Agreement dated July 12,
2001 (the "Purchase Agreement"), among the Company, as issuer of the 7% Notes
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due 2011 (the "Notes"), and the Initial Purchasers, which provides for, among
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other things, the sale by the Company to the Initial Purchasers of the aggregate
principal amount of Notes specified therein. In order to induce the Initial
Purchasers to enter into the Purchase Agreement, the Company has agreed to
provide to the Initial Purchasers and their direct and indirect transferees the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following capitalized
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defined terms shall have the following meanings:
"Advice" shall have the meaning set forth in the last paragraph of Section
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3 hereof.
"Affiliate" has the same meaning as given to that term in Rule 405 under
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the Securities Act or any successor rule thereunder.
"Applicable Period" shall have the meaning set forth in Section 3(s) hereof.
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"Business Day" means any day other than a Saturday, a Sunday, or a day on which
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banking institutions in The City of New York are authorized or required by law
or executive order to remain closed.
"Closing Time" shall mean the Closing Time as defined in the Purchase Agreement.
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"Company" shall have the meaning set forth in the preamble to this Agreement and
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also includes the Company's successors and permitted assigns.
"Depositary" shall mean The Depository Trust Company, or any other depositary
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appointed by the Company; provided, however, that such depositary must have an
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address in the Borough of Manhattan, The City of New York.
"Effectiveness Period" shall have the meaning set forth in Section 2(b) hereof.
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"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended from
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time to time.
"Exchange Notes" shall mean the 7% Notes due 2011 issued by the Company under
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the Indenture containing terms identical in all material respects to the Notes
(except that (i) interest thereon shall accrue from the last date on which
interest was paid or duly provided for on the Notes or, if no such interest has
been paid, from the date of their original issue, (ii) they will not contain
terms with respect to transfer restrictions under the Securities Act, and (iii)
they will not provide for any Penalty Interest thereon) to be offered to Holders
of Notes in exchange for Notes pursuant to the Exchange Offer.
"Exchange Offer" shall mean the offer by the Company to the Holders to exchange
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all of the Registrable Securities for a like amount of Exchange Notes pursuant
to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the Securities Act
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effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
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registration statement on Form S-4 (or, if applicable, on another appropriate
form), and all amendments and supplements to such registration statement, in
each case including the Prospectus contained therein, all exhibits thereto and
all documents incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section 2(a) hereof.
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"Holder" shall mean any Initial Purchaser, for so long as it owns any
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Registrable Securities, and each of its successors, assigns and direct and
indirect transferees who become registered owners of Registrable Securities
under the Indenture.
"Indenture" shall mean the Indenture, dated as of May 1, 1995, between the
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Company, as issuer, and Chase Bank of Texas, National Association, as trustee,
as the same may be amended or supplemented from time to time in accordance with
the terms thereof.
"Initial Purchasers" shall mean Banc of America Securities LLC, X.X. Xxxxxx
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Securities Inc., Banc One Capital Markets, Inc., Commerzbank Capital Markets
Corp., Daiwa Securities SMBC Europe Limited, First Union Securities, Inc., PNC
Capital Markets, Inc., SouthTrust Securities, Inc. and Xxxxx Fargo Brokerage
Services, LLC.
"Inspectors" shall have the meaning set forth in Section 3(n) hereof.
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"Issue Date" shall mean July 17, 2001, the initial date of delivery of the Notes
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from the Company to the Initial Purchasers.
"Issuer" shall mean the Company as defined in the preamble hereto.
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"Majority Holders" shall mean the Holders of a majority of the aggregate
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principal amount of outstanding Notes and Exchange Notes.
"Notes" shall have the meaning set forth in the preamble to this Agreement.
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"Participating Broker-Dealer" shall have the meaning set forth in Section 3(t)
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hereof.
"Penalty Interest" shall have the meaning set forth in Section 2(e) hereof.
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"Person" shall mean an individual, partnership, corporation, trust or
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unincorporated organization, limited liability corporation, or a government or
agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration Statement,
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including any preliminary prospectus, and any such prospectus as amended or
supplemented by any prospectus supplement, including a prospectus supplement
with respect to the terms of the offering of any portion of the Registrable
Securities covered by a Shelf Registration Statement, and by all other
amendments and supplements to a prospectus, including post-effective amendments,
and in each case including all documents incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble to this
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Agreement.
"Records" shall have the meaning set forth in Section 3(n) hereof.
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"Registrable Securities" shall mean the Notes; provided, however, that any Notes
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shall cease to be Registrable Securities when any of the following occurs: (i) a
Registration Statement with respect to such Notes for the exchange or resale
thereof shall have been declared effective under the Securities Act and such
Notes shall have been disposed of pursuant to such Registration Statement, (ii)
such Notes shall have been sold to the public pursuant to Rule 144(k) (or any
similar provision then in force, but not Rule 144A) under the Securities Act or
are eligible to be sold without restriction as contemplated by Rule 144(k),
(iii) such Notes shall have ceased to be outstanding or (iv) such Notes shall
have been exchanged for Exchange Notes and are thereafter freely tradable by the
Holder thereof (other than an Affiliate of the Company).
"Registration Expenses" shall mean any and all expenses incident to performance
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of or compliance by the Company with this Agreement, including without
limitation: (i) all SEC or National Association of Securities Dealers, Inc.
(the "NASD") registration and filing fees, including, if applicable, the fees
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and expenses of any "qualified independent underwriter" and its counsel that is
required to be retained by any Holder of Registrable Securities in accordance
with the rules and regulations of the NASD, (ii) all fees and expenses incurred
in connection with compliance with state securities or blue sky laws (including
reasonable fees and disbursements of one counsel for all underwriters and
Holders as a group in connection with blue sky qualification of any of the
Exchange Notes or Registrable Securities) and compliance with the rules of the
NASD, (iii) all expenses of any Persons in preparing or assisting in preparing,
word processing, printing and distributing any Registration Statement, any
Prospectus and any amendments or supplements thereto, and in preparing or
assisting in preparing, printing and distributing any underwriting agreements,
securities sales agreements and other documents relating to the performance of
and compliance with this Agreement, (iv) all rating agency fees, (v) the fees
and disbursements of counsel for the Company and of the independent certified
public accountants of the Company, including the expenses of any "cold comfort"
letters required by or incident to the performance of and compliance with this
Agreement, (vi) the reasonable fees and expenses of the Trustee and its counsel
and any exchange agent or custodian, and (vii) the reasonable fees and expenses
of any special experts retained by the Company in connection with any
Registration Statement.
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"Registration Statement" shall mean any registration statement of the Company
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which covers the Registrable Securities pursuant to the provisions of this
Agreement, and all amendments and supplements to any such Registration
Statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all documents
incorporated by reference therein.
"Rule 144(k) Period" shall mean the period of two years (or such shorter period
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as may hereafter be referred to in Rule 144(k) under the Securities Act (or
similar successor rule)) commencing on the Issue Date.
"SEC" shall mean the Securities and Exchange Commission.
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"Securities Act" shall mean the Securities Act of 1933, as amended from time to
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time.
"Shelf Registration" shall mean a registration effected pursuant to Section 2(b)
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hereof.
"Shelf Registration Event" shall have the meaning set forth in Section 2(b)
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hereof.
"Shelf Registration Event Date" shall have the meaning set forth in Section 2(b)
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hereof.
"Shelf Registration Statement" shall mean a "shelf" registration statement of
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the Company pursuant to the provisions of Section 2(b) hereof which covers all
of the Registrable Securities (except Registrable Securities which the Holders
have elected not to include in such Shelf Registration Statement or the Holders
of which have not complied with their obligations under the penultimate
paragraph of Section 3 hereof or under the first paragraph of Section 2(b)
hereof) on an appropriate form under Rule 415 under the Securities Act, or any
similar rule that may be adopted by the SEC, and all amendments and supplements
to such registration statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and all
documents incorporated by reference therein.
"TIA" shall have the meaning set forth in Section 3(k) hereof.
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"Trustee" shall mean the trustee under the Indenture.
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2. Registration Under the Securities Act.
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(a) Exchange Offer. Except as set forth in Section 2(b) below, the Company
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shall, for the benefit of the Holders, at the Company's cost, use its reasonable
best efforts to (i) file with the SEC within 120 calendar days after the Issue
Date an Exchange Offer Registration Statement on an appropriate form under the
Securities Act relating to the Exchange Offer, (ii) cause such Exchange Offer
Registration Statement to be declared effective under the Securities Act by the
SEC not later than the date which is 165 calendar days after the Issue Date,
(iii) keep such Exchange Offer Registration Statement effective for not less
than 30 calendar days (or longer if required by applicable law) after the date
notice of the Exchange Offer is mailed to the Holders and (iv) cause the
Exchange Offer to be consummated within 195 calendar days after the Issue Date.
Promptly after the effectiveness of the Exchange Offer Registration Statement,
the Company shall commence the Exchange Offer, it being the objective of such
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Exchange Offer to enable each Holder eligible and electing to exchange
Registrable Securities for a like principal amount of Exchange Notes (provided
that such Holder (i) is not an Affiliate of the Company, (ii) is not a
broker-dealer tendering Registrable Securities acquired directly from the
Company, (iii) acquires the Exchange Notes in the ordinary course of such
Holder's business and (iv) has no arrangements or understandings with any Person
to participate in the Exchange Offer for the purpose of distributing the
Exchange Notes) to transfer such Exchange Notes from and after their receipt
without any limitations or restrictions under the Securities Act and under state
securities or blue sky laws.
In connection with the Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter of
transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not less
than 30 days after the date notice thereof is mailed to the Holders (or longer
if required by applicable law) (such period referred to herein as the "Exchange
Period");
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(iii) utilize the services of the Depositary for the Exchange Offer with
respect to Notes represented by a global certificate;
(iv) permit Holders to withdraw tendered Registrable Securities at any time
prior to the close of business, New York City time, on the last Business Day of
the Exchange Period, by sending to the institution specified in the notice to
Holders, a telegram, telex, facsimile transmission or letter setting forth the
name of such Holder, the principal amount of Registrable Securities delivered
for exchange, and a statement that such Holder is withdrawing his election to
have such Registrable Securities exchanged;
(v) notify each Holder that any Registrable Security not tendered by such
Holder in the Exchange Offer will remain outstanding and continue to accrue
interest but will not retain any rights under this Agreement (except in the case
of the Initial Purchasers and Participating Broker-Dealers as provided herein);
and
(vi) otherwise comply in all respects with all applicable laws relating to
the Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the
Company shall:
(i) accept for exchange all Registrable Securities or portions thereof duly
tendered and not validly withdrawn pursuant to the Exchange Offer in accordance
with the terms of the Exchange Offer Registration Statement and letter of
transmittal which is an exhibit thereto;
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all
Registrable Securities or portions thereof so accepted for exchange by the
Company; and
(iii) issue, and cause the Trustee under the Indenture to promptly
authenticate and deliver to each Holder, Exchange Notes equal in principal
amount to the principal amount of the Notes as are surrendered by such Holder.
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Interest on each Exchange Note issued pursuant to the Exchange Offer will
accrue from the last date on which interest was paid or duly provided for on the
Note surrendered in exchange therefor or, if no interest has been paid on such
Note, from the Issue Date. To the extent not prohibited by any law or
applicable interpretation of the staff of the SEC, the Company shall use
reasonable best efforts to complete the Exchange Offer as provided above, and
shall comply with the applicable requirements of the Securities Act, the
Exchange Act and other applicable laws in connection with the Exchange Offer.
The Exchange Offer shall not be subject to any conditions other than the
conditions referred to in Section 2(b)(i) and (ii) below and those conditions
that are customary in similar exchange offers. Each Holder of Registrable
Securities who wishes to exchange such Registrable Securities for Exchange Notes
in the Exchange Offer will be required to make certain customary representations
in connection therewith, including, in the case of any Holder, representations
that (i) it is not an Affiliate of the Company, (ii) it is not a broker-dealer
tendering Registrable Securities acquired directly from the Company, (iii) the
Exchange Notes to be received by it are being acquired in the ordinary course of
its business and (iv) at the time of the Exchange Offer, it has no arrangements
or understandings with any Person to participate in the distribution (within the
meaning of the Securities Act) of the Exchange Notes. The Company shall inform
the Initial Purchasers, after consultation with the Trustee, of the names and
addresses of the Holders to whom the Exchange Offer is made, and the Initial
Purchasers shall have the right to contact such Holders in order to facilitate
the tender of Registrable Securities in the Exchange Offer.
Upon consummation of the Exchange Offer in accordance with this Section
2(a), the provisions of this Agreement shall continue to apply, mutatis
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mutandis, solely with respect to Exchange Notes held by Participating
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Broker-Dealers, and the Company shall have no further obligation to register the
Registrable Securities held by any Holder pursuant to Section 2(b) of this
Agreement.
(b) Shelf Registration. If (i) because of any change in law or in
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currently prevailing interpretations thereof by the staff of the SEC, the
Company is not permitted to effect the Exchange Offer as contemplated by Section
2(a) hereof, (ii) the Exchange Offer is not consummated within 195 days after
the Issue Date or (iii) upon the request of any Initial Purchaser with respect
to any Registrable Securities held by it, if such Initial Purchaser is not
permitted, in the reasonable opinion of Sidley Xxxxxx Xxxxx & Xxxx llp, pursuant
to applicable law or applicable interpretations of the staff of the SEC, to
participate in the Exchange Offer and thereby receive securities that are freely
tradeable without restriction under the Securities Act and applicable blue sky
or state securities laws (other than due solely to the status of such Initial
Purchaser as an Affiliate of the Company or as a Participating
Broker-Dealer)(any of the events specified in (i), (ii) or (iii) being a "Shelf
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Registration Event", and the date of occurrence thereof, the "Shelf Registration
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Event Date"), then in addition to or in lieu of conducting the Exchange Offer
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contemplated by Section 2(a), as the case may be, the Company shall promptly
notify the Holders in writing thereof and shall, at its cost, file as promptly
as practicable after such Shelf Registration Event Date and, in any event,
within 30 days after such Shelf Registration Event Date, a Shelf Registration
Statement providing for the sale by the Holders of all of the Registrable
Securities (other than Registrable Securities owned by Holders who have elected
not to include such Registrable Securities in such Shelf Registration Statement
or who have not complied with their obligations under the penultimate paragraph
of Section 3 hereof or under this paragraph, and shall use its reasonable best
efforts to cause such Shelf Registration Statement to be declared effective by
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the SEC as soon as practicable. No Holder of Registrable Securities shall be
entitled to include any of its Registrable Securities in any Shelf Registration
pursuant to this Agreement unless and until such Holder agrees in writing to be
bound by all of the provisions of this Agreement applicable to such Holder and
furnishes to the Company in writing, within 15 days after receipt of a request
therefor, such information as the Company may, after conferring with counsel
with regard to information relating to Holders that would be required by the SEC
to be included in such Shelf Registration Statement or Prospectus included
therein, reasonably request for inclusion in any Shelf Registration Statement or
Prospectus included therein. Each Holder as to which any Shelf Registration is
being effected agrees to furnish to the Company all information with respect to
such Holder necessary to make the information previously furnished to the
Company by such Holder not materially misleading.
The Company agrees to use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective and the Prospectus usable for
resales for the earlier of: (a) the Rule 144(k) Period or (b) such time as all
of the securities covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement or cease to be Registrable
Securities (the "Effectiveness Period"). The Company shall not permit any
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securities other than (i) the Company's issued and outstanding securities
possessing incidental registration rights and (ii) Registrable Securities, to be
included in the Shelf Registration. The Company will, in the event a Shelf
Registration Statement is declared effective, provide to each Holder of
Registrable Securities covered thereby a reasonable number of copies of the
Prospectus which is a part of the Shelf Registration Statement, notify each such
Holder when the Shelf Registration has become effective and take any other
action required to permit unrestricted resales of the Registrable Securities.
The Company further agrees, if necessary, to supplement or amend the Shelf
Registration Statement, if required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf
Registration Statement or by the Securities Act or by any other rules and
regulations thereunder for shelf registrations, and the Company agrees to
furnish to the Holders of Registrable Securities covered by such Shelf
Registration Statement copies of any such supplement or amendment promptly after
its being used or filed with the SEC.
(c) Expenses. The Company shall pay all Registration Expenses in
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connection with any Registration Statement filed pursuant to Section 2(a) and/or
2(b) hereof and will reimburse the Initial Purchasers for the reasonable fees
and disbursements of Sidley Xxxxxx Xxxxx & Xxxx llp incurred in connection with
the Exchange Offer. Except as provided herein, each Holder shall pay all
expenses of its counsel, underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of such Holder's Registrable
Securities pursuant to the Shelf Registration Statement.
(d) Effective Registration Statement. An Exchange Offer Registration
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Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement
pursuant to Section 2(b) hereof will not be deemed to have become effective
unless it has been declared effective by the SEC; provided, however, that if,
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after it has been declared effective, the offering of Registrable Securities
pursuant to such Exchange Offer Registration Statement or Shelf Registration
Statement is interfered with by any stop order, injunction or other order or
requirement of the SEC or any other governmental agency or court, such Exchange
Offer Registration Statement or Shelf Registration Statement will be deemed not
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to have been effective during the period of such interference, until the
offering of Registrable Securities pursuant to such Registration Statement may
legally resume. The Company will be deemed not to have used its reasonable best
efforts to cause the Exchange Offer Registration Statement or the Shelf
Registration Statement, as the case may be, to become, or to remain, effective
during the requisite period if it voluntarily takes any action that would result
in any such Registration Statement not being declared effective or that would
result in the Holders of Registrable Securities covered thereby not being able
to exchange or offer and sell such Registrable Securities during that period,
unless such action is required by applicable law.
(e) Penalty Interest. In the event that:
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(i) the Exchange Offer Registration Statement is not filed with the SEC on
or prior to the 120th day after the Issue Date, then, commencing on the 121st
day after the Issue Date, a Penalty Interest shall accrue on the principal
amount of the Notes at a rate of 0.25% per annum;
(ii) the Exchange Offer Registration Statement is not declared effective
by the SEC on or prior to the 165th day after the Issue Date, then, commencing
on the 166th day after the Issue Date, a Penalty Interest shall accrue on the
principal amount of the Notes at a rate of 0.25% per annum;
(iii) (A) the Company has not exchanged Exchange Notes for all Notes
validly tendered, in accordance with the terms of the Exchange Offer on or prior
to the 195th day after the Issue Date or (B) if the Shelf Registration Statement
is required to be filed pursuant to Section 2(b) but is not declared effective
by the SEC on or prior to the 240th day after the Issue Date, then, commencing
on the 241st day after the Issue Date, a Penalty Interest shall accrue on the
principal amount of the Notes at the rate of 0.25% per annum; or
(iv) the Shelf Registration Statement has been declared effective and such
Shelf Registration Statement ceases to be effective or the Prospectus ceases to
be usable for resales (A) at any time prior to the expiration of the
Effectiveness Period or (B) if related to corporate developments, public filings
or similar events or to correct a material misstatement or omission in the
Prospectus, for more than 60 days (whether or not consecutive) in any
twelve-month period, then a Penalty Interest shall accrue on the principal
amount of the Notes at a rate of 0.25% per annum commencing on the day (in the
case of (A) above), or the 61st day after (in the case of (B) above), such Shelf
Registration Statement ceases to be effective or the Prospectus ceases to be
usable for resales;
provided, however, that the aggregate amount of the Penalty Interest in respect
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of the Notes may not exceed 0.25% per annum; provided, further, however, that
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(1) upon the filing of the Exchange Offer Registration Statement (in the case of
clause (i) above), (2) upon the effectiveness of the Exchange Offer Registration
Statement (in the case of clause (ii) above), (3) upon the exchange of Exchange
Notes for all Notes validly tendered or upon the effectiveness of the Shelf
Registration Statement (in the case of clause (iii) (B) above) or (4) the
earlier of (y) such time as the Shelf Registration Statement which had ceased to
remain effective or the Prospectus which had ceased to be usable for resales
again becomes effective and usable for resales and (z) the expiration of the
Effectiveness Period (in the case of clause (iv) above), the Penalty Interest on
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the principal amount of the Notes as a result of such clause (or the relevant
subclause thereof) shall cease to accrue;
provided, further, however, that if the Exchange Offer Registration Statement is
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not declared effective by the SEC on or prior to the 165th day after the Issue
Date and the Company shall request Holders to provide the information required
by the SEC for inclusion in the Shelf Registration Statement, the Notes owned by
Holders who do not provide such information when required pursuant to Section
2(b) will not be entitled to any Penalty Interest for any day after the 165th
day after the Issue Date.
Any Penalty Interest due pursuant to Section 2(e)(i), (ii), (iii) or (iv)
above will be payable in cash on the next succeeding April 15 or October 15, as
the case may be, to Holders on the relevant record dates for the payment of
interest pursuant to the Indenture.
(f) Specific Enforcement. Without limiting the remedies available to the
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Holders, the Company acknowledges that any failure by the Company to comply with
its obligations under Section 2(a) and Section 2(b) hereof may result in
material irreparable injury to the Holders for which there is no adequate remedy
at law, that it would not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, any Holder may obtain such
relief as may be required to specifically enforce the Company's obligations
under Section 2(a) and Section 2(b) hereof.
3. Registration Procedures. In connection with the obligations of the
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Company with respect to the Registration Statements pursuant to Sections 2(a)
and 2(b) hereof, the Company shall use its reasonable best efforts to:
(a) prepare and file with the SEC a Registration Statement or Registration
Statements as prescribed by Sections 2(a) and 2(b) hereof within the relevant
time period specified in Section 2 hereof on the appropriate form under the
Securities Act, which form shall (i) be selected by the Company, (ii) in the
case of a Shelf Registration, be available for the sale of the Registrable
Securities by the selling Holders thereof and, in the case of an Exchange Offer,
be available for the exchange of Registrable Securities, and (iii) comply as to
form in all material respects with the requirements of the applicable form and
include all financial statements required by the SEC to be filed therewith; the
Company shall use its reasonable best efforts to cause such Registration
Statement to become effective and remain effective (and, in the case of a Shelf
Registration Statement, the Prospectus to be usable for resales) in accordance
with Section 2 hereof; provided, however, that if (1) such filing is pursuant to
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Section 2(b), or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2(a) is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes, before filing any Registration Statement or Prospectus or any amendments
or supplements thereto, the Company shall furnish to and afford the Holders of
the Registrable Securities and each such Participating Broker-Dealer, as the
case may be, covered by such Registration Statement, their counsel and the
managing underwriters, if any, a reasonable opportunity to review copies of all
such documents (including copies of any documents to be incorporated by
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reference therein and all exhibits thereto) proposed to be filed; and the
Company shall not file any Registration Statement or Prospectus or any
amendments or supplements thereto in respect of which the Holders must be
afforded an opportunity to review prior to the filing of such document if the
Majority Holders of the Registrable Securities, depending solely upon which
Holders must be afforded the opportunity of such review, or such Participating
Broker-Dealer, as the case may be, their counsel or the managing underwriters,
if any, shall reasonably object in a timely manner;
(b) prepare and file with the SEC such amendments and post-effective amendments
to each Registration Statement as may be necessary to keep such Registration
Statement effective for the Effectiveness Period or the Applicable Period, as
the case may be, and cause each Prospectus to be supplemented, if so determined
by the Company or requested by the SEC, by any required prospectus supplement
and as so supplemented to be filed pursuant to Rule 424 (or any similar
provision then in force) under the Securities Act, and comply with the
provisions of the Securities Act, the Exchange Act and the rules and regulations
promulgated thereunder applicable to it with respect to the disposition of all
securities covered by each Registration Statement during the Effectiveness
Period or the Applicable Period, as the case may be, in accordance with the
intended method or methods of distribution by the selling Holders thereof
described in this Agreement (including sales by any Participating
Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder of Registrable
Securities included in the Shelf Registration Statement, at least three Business
Days prior to filing, that a Shelf Registration Statement with respect to the
Registrable Securities is being filed and advising such Holder that the
distribution of Registrable Securities will be made in accordance with the
method selected by the Majority Holders of the Registrable Securities, (ii)
furnish to each Holder of Registrable Securities included in the Shelf
Registration Statement and to each underwriter of an underwritten offering of
Registrable Securities, if any, without charge, as many copies of each
Prospectus, including each preliminary prospectus, and any amendment or
supplement thereto, and such other documents as such Holder or underwriter may
reasonably request, in order to facilitate the public sale or other disposition
of the Registrable Securities and (iii) consent to the use of the Prospectus or
any amendment or supplement thereto by each of the selling Holders of
Registrable Securities included in the Shelf Registration Statement in
connection with the offering and sale of the Registrable Securities covered by
the Prospectus or any amendment or supplement thereto;
(d) in the case of a Shelf Registration, register or qualify the Registrable
Securities under all applicable state securities or "blue sky" laws of such
jurisdictions by the time the applicable Registration Statement is declared
effective by the SEC as any Holder of Registrable Securities covered by a
Registration Statement and each underwriter of an underwritten offering of
Registrable Securities shall reasonably request in writing in advance of such
date of effectiveness, and do any and all other acts and things which may be
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reasonably necessary or advisable to enable such Holder and underwriter to
consummate the disposition in each such jurisdiction of such Registrable
Securities owned by such Holder; provided, however, that the Company shall not
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be required to (i) qualify as a foreign corporation or as a dealer in securities
in any jurisdiction where it would not otherwise be required to qualify but for
this Section 3(d), (ii) file any general consent to service of process in any
jurisdiction where it would not otherwise be subject to such service of process
or (iii) subject itself to taxation in any such jurisdiction if it is not then
so subject;
(e) (1) in the case of a Shelf Registration or (2) if Participating
Broker-Dealers from whom the Company has received prior written notice that they
will be utilizing the Prospectus contained in the Exchange Offer Registration
Statement as provided in Section 3(s) hereof, are seeking to sell Exchange Notes
and are required to deliver Prospectuses, promptly notify each Holder of
Registrable Securities, or such Participating Broker-Dealers, as the case may
be, their counsel and the managing underwriters, if any, and promptly confirm
such notice in writing (i) when a Registration Statement has become effective
and when any post-effective amendments thereto become effective, (ii) of any
request by the SEC or any state securities authority for amendments and
supplements to a Registration Statement or Prospectus or for additional
information after the Registration Statement has become effective, (iii) of the
issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of a Registration Statement or the qualification of
the Registrable Securities or the Exchange Notes to be offered or sold by any
Participating Broker-Dealer in any jurisdiction described in Section 3(d) hereof
or the initiation of any proceedings for that purpose, (iv) in the case of a
Shelf Registration, if, between the effective date of a Registration Statement
and the closing of any sale of Registrable Securities covered thereby, the
representations and warranties of the Company contained in any purchase
agreement, securities sales agreement or other similar agreement cease to be
true and correct in all material respects, (v) of the happening of any event or
the failure of any event to occur or the discovery of any facts, during the
Effectiveness Period, which makes any statement made in such Registration
Statement or the related Prospectus untrue in any material respect or which
causes such Registration Statement or Prospectus to omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, as well as any other
corporate developments, public filings with the SEC or similar events causing
such Registration Statement not to be effective or the Prospectus not to be
useable for resales and (vi) of the reasonable determination of the Company that
a post-effective amendment to the Registration Statement would be appropriate;
(f) obtain the withdrawal of any order suspending the effectiveness of a
Registration Statement at the earliest possible moment;
(g) in the case of a Shelf Registration, furnish to each Holder of Registrable
Securities included within the coverage of such Shelf Registration Statement,
without charge, at least one conformed copy of each Registration Statement
Page 11
relating to such Shelf Registration and any post-effective amendment thereto
(without documents incorporated therein by reference or exhibits thereto, unless
requested);
(h) in the case of a Shelf Registration, cooperate with the selling Holders of
Registrable Securities to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not bearing any
restrictive legends (except any customary legend borne by securities held
through The Depository Trust Company or any similar depository) and in such
denominations (consistent with the provisions of the Indenture and the officers'
certificate establishing the forms and the terms of the Notes pursuant to the
Indenture) and registered in such names as the selling Holders or the
underwriters may reasonably request at least two Business Days prior to the
closing of any sale of Registrable Securities pursuant to such Shelf
Registration Statement;
(i) in the case of a Shelf Registration or an Exchange Offer Registration,
promptly after the occurrence of any event specified in Section 3(e)(ii),
3(e)(iii), 3(e)(v) (subject to a 60-day grace period within any twelve-month
period) or 3(e)(vi) hereof, prepare a supplement or post-effective amendment to
such Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document so that,
as thereafter delivered to the purchasers of the Registrable Securities, such
Prospectus will not include any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and the Company
shall notify each Holder to suspend use of the Prospectus as promptly as
practicable after the occurrence of such an event, and each Holder hereby agrees
to suspend use of the Prospectus until the Company has amended or supplemented
the Prospectus to correct such misstatement or omission;
(j) obtain a CUSIP number for the Exchange Notes or the Registrable Securities,
as the case may be, not later than the effective date of a Registration
Statement, and provide the Trustee with certificates for the Exchange Notes or
the Registrable Securities, as the case may be, in a form eligible for deposit
with the Depositary;
(k) cause the Indenture to remain qualified under the Trust Indenture Act of
1939, as amended (the "TIA"), in connection with the registration of the
---
Exchange Notes or Registrable Securities, as the case may be, and effect such
changes to such documents as may be required for them to be so qualified in
accordance with the terms of the TIA and execute, and cause the Trustee to
execute, all documents as may be required to effect such changes, and all other
forms and documents required to be filed with the SEC to enable such documents
to be so qualified in a timely manner;
(l) in the case of a Shelf Registration, enter into such agreements (including
underwriting agreements) as are customary in underwritten offerings and take all
Page 12
such other appropriate actions in connection therewith as are reasonably
requested by the Holders of at least 25% in aggregate principal amount of the
Registrable Securities in order to expedite or facilitate the registration or
the disposition of the Registrable Securities;
(m) in the case of a Shelf Registration, whether or not an underwriting
agreement is entered into and whether or not the registration is an underwritten
registration, if requested by (x) an Initial Purchaser, in the case where such
Initial Purchaser holds Notes acquired by it as part of its initial placement
and Holders of at least 25% in aggregate principal amount of the Registrable
Securities covered thereby: (i) make such representations and warranties to
Holders of such Registrable Securities and the underwriters (if any), with
respect to the business of the Company, as then conducted and the Registration
Statement, Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, as are customarily made by
issuers to underwriters in underwritten offerings, and confirm the same if and
when requested; (ii) obtain opinions of counsel to the Company and updates
thereof (which may be in the form of a reliance letter) in form and substance
reasonably satisfactory to the managing underwriters (if any) and the Holders of
a majority in amount of the Registrable Securities being sold, addressed to each
selling Holder and the underwriters (if any) covering the matters customarily
covered in opinions requested in underwritten offerings and such other matters
as may be reasonably requested by such underwriters (it being agreed that the
matters to be covered by such opinion may be subject to customary qualifications
and exceptions); (iii) obtain "cold comfort" letters and updates thereof in form
and substance reasonably satisfactory to the managing underwriters from the
independent certified public accountants of the Company addressed to each of the
underwriters, such letters to be in customary form and covering matters of the
type customarily covered in "cold comfort" letters in connection with
underwritten offerings and such other matters as reasonably requested by such
underwriters in accordance with Statement on Auditing Standards No. 72; and (iv)
if an underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable than those set forth
in Section 4 hereof (or such other provisions and procedures acceptable to
Holders of a majority in aggregate principal amount of Registrable Securities
covered by such Registration Statement and the managing underwriters) customary
for such agreements with respect to all parties to be indemnified pursuant to
said Section (including, without limitation, such underwriters and selling
Holders); and in the case of an underwritten registration, the above
requirements shall be satisfied at each closing under the related underwriting
agreement or as and to the extent required thereunder;
(n) if (1) a Shelf Registration is filed pursuant to Section 2(b) or (2) a
Prospectus contained in an Exchange Offer Registration Statement filed pursuant
to Section 2(a) is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, make reasonably available for inspection by any selling
Holder of Registrable Securities or Participating Broker-Dealer, as applicable,
Page 13
who certifies to the Company that it has a current intention to sell Registrable
Securities pursuant to the Shelf Registration, any underwriter participating in
any such disposition of Registrable Securities, if any, and any attorney,
accountant or other agent retained by any such selling Holder, Participating
Broker-Dealer, as the case may be, or underwriter (collectively, the
"Inspectors"), at the offices where normally kept, during the Company's normal
----------
business hours, all financial and other records, pertinent organizational and
operational documents and properties of the Company and its subsidiaries
(collectively, the "Records") as shall be reasonably necessary to enable them to
-------
conduct due diligence activities, and cause the officers, trustees and employees
of the Company and its subsidiaries to supply all relevant information in each
case reasonably requested by any such Inspector in connection with such
Registration Statement; records and information which the Company determines, in
good faith, to be confidential and any Records and information which it notifies
the Inspectors are confidential shall not be disclosed to any Inspector except
where (i) the disclosure of such Records or information is necessary to avoid or
correct a material misstatement or omission in such Registration Statement, (ii)
the release of such Records or information is ordered pursuant to a subpoena or
other order from a court of competent jurisdiction or is necessary in connection
with any action, suit or proceeding or (iii) such Records or information
previously has been made generally available to the public; each selling Holder
of such Registrable Securities and each such Participating Broker-Dealer will be
required to agree in writing that Records and information obtained by it as a
result of such inspections shall be deemed confidential and shall not be used by
it as the basis for any market transactions in the securities of the Company
unless and until such is made generally available to the public through no fault
of an Inspector or a selling Holder; and each selling Holder of such Registrable
Securities and each such Participating Broker-Dealer will be required to further
agree in writing that it will, upon learning that disclosure of such Records or
information is sought in a court of competent jurisdiction, or in connection
with any action, suit or proceeding, give notice to the Company and allow the
Company at its expense to undertake appropriate action to prevent disclosure of
the Records and information deemed confidential;
(o) comply with all applicable rules and regulations of the SEC so long as any
provision of this Agreement shall be applicable and make generally available to
its securityholders earning statements satisfying the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than 45 days after the end of any
12-month period (or 90 days after the end of any 12-month period if such period
is a fiscal year) (i) commencing at the end of any fiscal quarter in which
Registrable Securities are sold to underwriters in a firm commitment or best
efforts underwritten offering and (ii) if not sold to underwriters in such an
offering, commencing on the first day of the first fiscal quarter of the Company
after the effective date of a Registration Statement, which statements shall
cover said 12-month periods, provided that the obligations under this paragraph
(o) shall be satisfied by the timely filing of quarterly and annual reports on
Page 14
Forms 10-Q and 10-K under the Exchange Act;
(p) if an Exchange Offer is to be consummated, upon delivery of the Registrable
Securities by Holders to the Company (or to such other Person as directed by the
Company), in exchange for the Exchange Notes, the Company shall xxxx, or cause
to be marked, on such Notes delivered by such Holders that such Notes are being
cancelled in exchange for the Exchange Notes; it being understood that in no
event shall such Notes be marked as paid or otherwise satisfied;
(q) cooperate with each seller of Registrable Securities covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Securities and their respective counsel in
connection with any filings required to be made with the NASD;
(r) take all other steps necessary to effect the registration of the
Registrable Securities covered by a Registration Statement contemplated hereby;
(s) (A) in the case of the Exchange Offer Registration Statement (i) include
in the Exchange Offer Registration Statement a section entitled "Plan of
Distribution," which section shall be reasonably acceptable to the Initial
Purchasers or another representative of the Participating Broker-Dealers, and
which shall contain a summary statement of the positions taken or policies made
by the staff of the SEC with respect to the potential "underwriter" status of
any broker-dealer that holds Registrable Securities acquired for its own account
as a result of market-making activities or other trading activities (a
"Participating Broker-Dealer") and that will be the beneficial owner (as defined
---------------------------
in Rule 13d-3 under the Exchange Act) of Exchange Notes to be received by such
broker-dealer in the Exchange Offer, whether such positions or policies have
been publicly disseminated by the staff of the SEC or such positions or
policies, in the reasonable judgment of the Initial Purchasers or such other
representative, represent the prevailing views of the staff of the SEC,
including a statement that any such broker-dealer who receives Exchange Notes
for Registrable Securities pursuant to the Exchange Offer may be deemed a
statutory underwriter and must deliver a prospectus meeting the requirements of
the Securities Act in connection with any resale of such Exchange Notes, (ii)
furnish to each Participating Broker-Dealer who has delivered to the Company the
notice referred to in Section 3(e), without charge, as many copies of each
Prospectus included in the Exchange Offer Registration Statement, including any
preliminary Prospectus, and any amendment or supplement thereto, as such
Participating Broker-Dealer may reasonably request (the Company hereby consents
to the use of the Prospectus forming part of the Exchange Offer Registration
Statement or any amendment or supplement thereto by any Person subject to the
prospectus delivery requirements of the Securities Act, including all
Participating Broker-Dealers, in connection with the sale or transfer of the
Exchange Notes covered by the Prospectus or any amendment or supplement
thereto), (iii) use its reasonable best efforts to keep the Exchange Offer
Registration Statement effective and to amend and supplement the Prospectus
Page 15
contained therein in order to permit such Prospectus to be lawfully delivered by
all Persons subject to the prospectus delivery requirements of the Securities
Act for such period of time as such Persons must comply with such requirements
under the Securities Act and applicable rules and regulations in order to resell
the Exchange Notes; provided, however, that such period shall not be required to
-------- -------
exceed 195 days (or such longer period if extended pursuant to the last sentence
of Section 3 hereof) (the "Applicable Period"), and (iv) include in the
------------------
transmittal letter or similar documentation to be executed by an exchange
offeree in order to participate in the Exchange Offer (x) the following
provision:
"If the exchange offeree is a broker-dealer holding Registrable Securities
acquired for its own account as a result of market-making activities or other
trading activities, it will deliver a prospectus meeting the requirements of the
Securities Act in connection with any resale of Exchange Notes received in
respect of such Registrable Securities pursuant to the Exchange Offer";
and (y) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (x) and by delivering a Prospectus in
connection with the exchange of Registrable Securities, the broker-dealer will
not be deemed to admit that it is an underwriter within the meaning of the
Securities Act; and
(B) in the case of any Exchange Offer Registration Statement, the Company
agrees to deliver to the Initial Purchasers or to another representative of the
Participating Broker-Dealers, if reasonably requested by an Initial Purchaser or
such other representative of Participating Broker-Dealers, on behalf of the
Participating Broker-Dealers upon consummation of the Exchange Offer (i) an
opinion of counsel in form and substance reasonably satisfactory to such Initial
Purchaser or such other representative of the Participating Broker-Dealers,
covering the matters customarily covered in opinions requested in connection
with Exchange Offer Registration Statements and such other matters as may be
reasonably requested (it being agreed that the matters to be covered by such
opinion may be subject to customary qualifications and exceptions), (ii) an
officers' certificate substantially similar to that specified in Section 6(c) of
the Purchase Agreement and such additional certifications as are customarily
delivered in a public offering of debt securities and (iii) upon the
effectiveness of the Exchange Offer Registration Statement, comfort letters, in
each case, in customary form if permitted by Statement on Auditing Standards No.
72.
The Company may require each seller of Registrable Securities as to which
any registration is being effected to furnish to the Company such information
regarding such seller as may be required by the staff of the SEC to be included
in a Registration Statement. The Company may exclude from such registration the
Registrable Securities of any seller who unreasonably fails to furnish such
information within a reasonable time after receiving such request. The Company
shall have no obligation to register under the Securities Act the Registrable
Securities of a seller who so fails to furnish such information.
Page 16
In the case of a Shelf Registration Statement, or if Participating
Broker-Dealers who have notified the Company that they will be utilizing the
Prospectus contained in the Exchange Offer Registration Statement as provided in
this Section 3(s) are seeking to sell Exchange Notes and are required to deliver
Prospectuses, each Holder agrees that, upon receipt of any notice from the
Company of the occurrence of any event specified in Section 3(e)(ii), 3(e)(iii),
3(e)(v) or 3(e)(vi) hereof, such Holder will forthwith discontinue disposition
of Registrable Securities pursuant to a Registration Statement until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(i) hereof or until it is advised in writing (the
"Advice") by the Company that the use of the applicable Prospectus may be
------
resumed, and, if so directed by the Company, such Holder will deliver to the
Company (at the Company's expense) all copies in such Holder's possession, other
than permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities or Exchange Notes, as the case may be,
current at the time of receipt of such notice. If the Company shall give any
such notice to suspend the disposition of Registrable Securities or Exchange
Notes, as the case may be, pursuant to a Registration Statement, the Company
shall use its reasonable best efforts to file and have declared effective (if an
amendment) as soon as practicable after the resolution of the related matters an
amendment or supplement to the Registration Statement and shall extend the
period during which such Registration Statement is required to be maintained
effective and the Prospectus usable for resales pursuant to this Agreement by
the number of days in the period from and including the date of the giving of
such notice to and including the date when the Company shall have made available
to the Holders (x) copies of the supplemented or amended Prospectus necessary to
resume such dispositions or (y) the Advice.
4. Indemnification and Contribution. (a) In connection with any
----------------------------------
Registration Statement, the Company shall jointly and severally indemnify and
hold harmless the Initial Purchasers, each Holder, each underwriter who
participates in an offering of the Registrable Securities, each Participating
Broker-Dealer, each Person, if any, who controls any of such parties within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
and each of their respective directors, officers, employees and agents, as
follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever,
as incurred, arising out of any untrue statement or alleged untrue statement of
a material fact contained in any Registration Statement (or any amendment or
supplement thereto), covering Registrable Securities or Exchange Notes, as
applicable, or the omission or alleged omission therefrom of a material fact
required to be stated or necessary in order 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 the omission or alleged omission
therefrom of a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever,
as incurred, to the extent of the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or omission;
Page 17
provided that any such settlement is effected with the prior written consent of
the Company; and
(iii) against any and all expenses whatsoever, as incurred (including the
reasonable fees and disbursements of counsel chosen by such Holder, such
Participating Broker-Dealer, or any underwriter (except to the extent otherwise
expressly provided in Section 4(c) hereof)), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under subparagraph (i) or (ii) of this Section
4(a);
provided, however, that this indemnity does not apply to any loss, liability,
-------- -------
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished in writing to the Company by the
Initial Purchasers or such Holder, underwriter or Participating Broker-Dealer
for use in a Registration Statement (or any amendment thereto) or any Prospectus
(or any amendment or supplement thereto).
(b) Each of the Initial Purchasers and each Holder, underwriter or
Participating Broken-Dealer agrees, severally and not jointly, to indemnify and
hold harmless the Company and each Person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act against any and all loss, liability, claim, damage and expense
whatsoever described in the indemnity contained in Section 4(a) hereof, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in a Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Initial Purchaser, Holder, underwriter or Participating
Broker-Dealer expressly for use in such Registration Statement (or any amendment
thereto), or any such Prospectus (or any amendment or supplement thereto);
provided, however, that in the case of a Shelf Registration Statement, no such
-------- -------
Holder shall be liable for any claims hereunder in excess of the amount of net
proceeds received by such Holder from the sale of Registrable Securities
pursuant to such Shelf Registration Statement.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have under this Section 4 to the extent that it is not materially
prejudiced by such failure as a result thereof, and in any event shall not
relieve it from liability which it may have otherwise on account of this
Agreement. In the case of parties indemnified pursuant to Section 4(a) or (b)
above, counsel to the indemnified parties shall be selected by such parties. An
indemnifying party may participate at its own expense in the defense of such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for the
fees and expenses of more than one counsel (in addition to local counsel),
Page 18
separate from their own counsel, for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 4 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional written release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) In order to provide for just and equitable contribution in circumstances
under which any of the indemnity provisions set forth in this Section 4 is for
any reason held to be unenforceable by an indemnified party although applicable
in accordance with its terms, the Company and the Holders shall contribute to
the aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnity agreement incurred by the Company and the
Holders, as incurred; provided, however, that no Person guilty of fraudulent
-------- -------
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person that was not guilty of such
fraudulent misrepresentation. As between the Company and the Holders, such
parties shall contribute to such aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by this Agreement in such proportion as
shall be appropriate to reflect the relative fault of the Company, on the one
hand, and the Holders, on the other hand, with respect to the statements or
omissions which resulted in such loss, liability, claim, damage or expense, or
action in respect thereof, as well as any other relevant equitable
considerations. The relative fault of the Company, on the one hand, and of the
Holders, on the other hand, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, on the one hand, or by or on behalf of the Holders, on
the other, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and the Holders agree that it would not be just and equitable if contribution
pursuant to this Section 4 were to be determined by pro rata allocation or by
any other method of allocation that does not take into account the relevant
equitable considerations. For purposes of this Section 4, each Affiliate of a
Holder, and each director, officer and employee and Person, if any, who controls
a Holder or such Affiliate within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act shall have the same rights to contribution
as such Holder and each Person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
shall have the same rights to contribution as the Company.
5. Participation in an Underwritten Registration. No Holder may participate
---------------------------------------------
in an underwritten registration hereunder unless such Holder (a) agrees to sell
such Holder's Registrable Securities on the basis provided in the underwriting
arrangement approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up letters and
other documents reasonably required under the terms of such underwriting
arrangements.
Page 19
6. Selection of Underwriters. The Holders of Registrable Securities covered
-------------------------
by the Shelf Registration Statement who desire to do so may sell the Securities
covered by such Shelf Registration in an underwritten offering, subject to the
provisions of Section 3(l) hereof. In any such underwritten offering, the
underwriter or underwriters and manager or managers that will administer the
offering will be selected by the Holders of a majority in aggregate principal
amount of the Registrable Securities included in such offering; provided,
--------
however, that such underwriters and managers must be reasonably satisfactory to
-------
the Company.
7. Miscellaneous.
-------------
(a) Rule 144 and Rule 144A. For so long as the Company is subject to the
-----------------------
reporting requirements of Section 13 or 15 of the Exchange Act and any
Registrable Securities remain outstanding, the Company will file the reports
required to be filed by it under the Securities Act and Section 13(a) or 15(d)
of the Exchange Act and the rules and regulations adopted by the SEC thereunder;
provided, however, that if the Company ceases to be so required to file such
-------- -------
reports, it will, upon the request of any Holder of Registrable Securities, (a)
make publicly available such information as is necessary to permit sales of its
securities pursuant to Rule 144 under the Securities Act, (b) deliver such
information to a prospective purchaser as is necessary to permit sales of its
securities pursuant to Rule 144A under the Securities Act, and (c) take such
further action that is reasonable in the circumstances, in each case, to the
extent required from time to time to enable such Holder to sell its Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (i) Rule 144 under the Securities Act, as such
rule may be amended from time to time, (ii) Rule 144A under the Securities Act,
as such rule may be amended from time to time, or (iii) any similar rules or
regulations hereafter adopted by the SEC. Upon the request of any Holder of
Registrable Securities, the Company will deliver to such Holder a written
statement as to whether it has complied with such requirements.
(b) No Inconsistent Agreements. The Company has not entered into, nor will the
--------------------------
Company on or after the date of this Agreement enter into, any agreement which
is inconsistent with the rights granted to the Holders of Registrable Securities
in this Agreement or otherwise conflicts with the provisions hereof. The rights
granted to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's other
issued and outstanding securities under any such agreements.
(c) Amendments and Waivers. The provisions of this Agreement, including the
------------------------
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
unless the Company has obtained the written consent of Holders of a majority in
aggregate principal amount of the outstanding Registrable Securities affected by
such amendment, modification, supplement, waiver or departure; provided that no
--------
amendment, modification or supplement or waiver or consent to the departure with
respect to the provisions of Section 4 hereof shall be effective as against any
Holder of Registrable Securities unless consented to in writing by such Holder
of Registrable Securities. Notwithstanding the foregoing sentence, (i) this
Agreement may be amended, without the consent of any Holder of Registrable
Securities, by written agreement signed by the Company and the Initial
Purchasers, to cure any ambiguity, correct or supplement any provision of this
Page 20
Agreement that may be inconsistent with any other provision of this Agreement or
to make any other provisions with respect to matters or questions arising under
this Agreement which shall not be inconsistent with other provisions of this
Agreement, (ii) this Agreement may be amended, modified or supplemented, and
waivers and consents to departures from the provisions hereof may be given, by
written agreement signed by the Company and the Initial Purchasers to the extent
that any such amendment, modification, supplement, waiver or consent is, in
their reasonable judgment, necessary or appropriate to comply with applicable
law (including any interpretation of the Staff of the SEC) or any change therein
and (iii) to the extent any provision of this Agreement relates to an Initial
Purchaser, such provision may be amended, modified or supplemented, and waivers
or consents to departures from such provisions may be given, by written
agreement signed by such Initial Purchaser and the Company.
(d) Notices. All notices and other communications provided for or permitted
-------
hereunder shall be made in writing by hand-delivery, registered first-class
mail, telex, telecopier, or any courier guaranteeing overnight delivery (i) if
to a Holder, at the most current address given by such Holder to the Company by
means of a notice given in accordance with the provisions of this Section 7(d),
which address initially is, with respect to each Initial Purchaser, the address
set forth in the Purchase Agreement; and (ii) if to the Company, initially at
the Company's address set forth in the Purchase Agreement and thereafter at such
other address, notice of which is given in accordance with the provisions of
this Section 7(d).
All such notices and communications shall be deemed to have been duly given: at
the time delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt is acknowledged, if telecopied; and on the next Business
Day, if timely delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit of and
------------------------
be binding upon the successors, assigns and transferees of the Initial
Purchasers, including, without limitation and without the need for an express
assignment, subsequent Holders; provided, however, that nothing herein shall be
-------- -------
deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Purchase Agreement or the Indenture.
If any transferee of any Holder shall acquire Registrable Securities in any
manner, whether by operation of law or otherwise, such Registrable Securities
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Securities, such Person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement and such Person shall be entitled to receive the benefits hereof.
(f) Third Party Beneficiaries. Each Holder and any Participating
---------------------------
Broker-Dealer shall be third party beneficiaries of the agreements made
hereunder among the Initial Purchasers and the Company, and the Initial
Purchasers shall have the right to enforce such agreements directly to the
extent it deems such enforcement necessary or advisable to protect its rights or
the rights of Holders hereunder.
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(g) Counterparts. This Agreement may be executed in any number of counterparts
------------
and by the parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of reference
--------
only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN THE
--------------
STATE OF NEW YORK. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT, AND THE
TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY
PROVISIONS RELATING TO CONFLICTS OF LAWS.
(j) Severability. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Securities Held by the Company or its Affiliates. Whenever the consent or
-------------------------------------------------
approval of Holders of a specified percentage of Registrable Securities is
required hereunder, Registrable Securities held by the Company or its Affiliates
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
XXXXXXXXXX REALTY INVESTORS, INC.
By: __________________________
Name:
Title:
Confirmed and accepted as of
the date first above written:
BANC OF AMERICA SECURITIES LLC
X.X. XXXXXX SECURITIES INC.
BANC ONE CAPITAL MARKETS, INC.
COMMERZBANK CAPITAL MARKETS CORP.
DAIWA SECURITIES SMBC EUROPE LIMITED
FIRST UNION SECURITIES, INC.
PNC CAPITAL MARKETS, INC.
SOUTHTRUST SECURITIES, INC.
XXXXX FARGO BROKERAGE SERVICES, LLC.
By: Banc of America Securities LLC
By: ___________________________________
Authorized Signatory
For themselves and as Representative of the several Initial Purchasers
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