EXHIBIT 99.8
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and entered
into this 26th day of September, 1996, by and between Angeles Participating
Mortgage Trust, a California business trust (the "Trust"), and Starwood
Mezzanine Investors, L.P., a Delaware limited partnership ("Starwood
Mezzanine"). Unless otherwise indicated, capitalized terms used herein are
used herein as defined in Section 1.
RECITALS
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WHEREAS, pursuant to a Formation Agreement, dated September 26, 1996, by
and between the Trust and Starwood Mezzanine (the "Formation Agreement"), on the
date hereof, the Trust and Starwood Mezzanine are making capital contributions
to APMT Limited Partnership, a Delaware limited partnership (the "Partnership"),
in return for the issuance by the Partnership to the Trust and to Starwood
Mezzanine of Partnership Interests (as such term is defined in the Partnership
Agreement); and
WHEREAS, pursuant to the Formation Agreement, the parties hereto desire to
set forth the rights of Starwood Mezzanine and the obligations of the Trust to
cause the registration of the Registrable Securities pursuant to the Securities
Act;
NOW, THEREFORE, in consideration of the premises and mutual covenants set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. DEFINITIONS AND USAGE.
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1.1 DEFINITIONS. As used in this Agreement:
BENEFICIALLY OWNING. "BENEFICIALLY OWNING" means owning Trust Shares
directly, indirectly or constructively by a Person through the application of
Section 318(a) of the Code, as modified by Section 856(d)(5) of the Code, or
Section 544 of the Code, as modified by Section 856(h) of the Code.
CLASS A WARRANT. "CLASS A WARRANT" shall mean the warrant issued by the
Trust on March 15, 1994 for the purchase of up to 5,000,000 Trust Shares.
CODE. "CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
COMMISSION. "COMMISSION" shall mean the Securities and Exchange Commission
or any other federal agency at the time administering the Securities Act.
CONTINUOUSLY EFFECTIVE. "CONTINUOUSLY EFFECTIVE", with respect to a
specified registration statement, shall mean that such registration statement
shall not cease to be effective and available for Transfers of Registrable
Securities thereunder for longer than either (i) any ten
(10) consecutive business days, or (ii) an aggregate of fifteen (15) business
days during the period specified in the relevant provision of this Agreement.
DECLARATION OF TRUST. "DECLARATION OF TRUST" means the Declaration of
Trust of the Trust, originally made and entered into as of April 15, 1988, as
restated as of July 18, 1988, as further restated as of September 26, 1996, and
as may be amended, modified, restated and superseded from time to time after the
date of this Agreement.
DEMAND REGISTRATION. "DEMAND REGISTRATION" shall have the meaning set
forth in Section 2.1.
FORMATION AGREEMENT. "FORMATION AGREEMENT" shall have the meaning set
forth in the Recitals of this Agreement.
EXCHANGE ACT. "EXCHANGE ACT" shall mean the Securities Exchange Act of
1934, and the rules and regulations of the Commission thereunder, all as the
same shall be in effect at the time.
EXCHANGE RIGHTS AGREEMENT. "EXCHANGE RIGHTS AGREEMENT" shall mean the
Exchange Rights Agreement, dated the date hereof, by and between the Trust
and Starwood Mezzanine.
INDEPENDENT TRUSTEES. "INDEPENDENT TRUSTEES" shall mean a Trustee of the
Trust who is (i) not an officer, employee, agent, shareholder (direct or
indirect) or representative of the Trust, Starwood Mezzanine, or Persons which
directly or indirectly through one or more intermediaries control, or is
controlled by or is under common control with Starwood Mezzanine, (ii) not a
spouse, sibling, lineal descendant, ancestor, aunt, uncle or first cousin of
any the aforesaid Persons (including in-laws and adopted relationships), and
(iii) free of any relationship that would interfere with the exercise of
independent judgment; provided, however, that Xxxxxx X. Xxxxxxxxx, J. D'Arcy
Xxxxxxxx and Xxxx X. XxXxxxxx shall be considered Independent Trustees
hereunder.
PERSON. "PERSON" shall mean any individual, corporation, partnership,
joint venture, association, joint-stock company, limited liability company,
trust, unincorporated organization or government or other agency or political
subdivision thereof.
PIGGYBACK REGISTRATION. "PIGGYBACK REGISTRATION" shall have the meaning
set forth in Section 3.
PARTNERSHIP. "PARTNERSHIP" shall have the meaning set forth in the
Recitals of this Agreement.
PARTNERSHIP AGREEMENT. "PARTNERSHIP AGREEMENT" shall mean the Limited
Partnership Agreement of APMT Limited Partnership, dated as of the date hereof,
by and between the Trust and Starwood Mezzanine.
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REGISTER, REGISTERED AND REGISTRATION. "REGISTER", "REGISTERED", AND
"REGISTRATION" shall refer to a registration effected by preparing and filing
a registration statement or similar document in compliance with the Securities
Act, and the declaration or ordering by the Commission of effectiveness of such
registration statement or document.
REGISTRABLE SECURITIES. "REGISTRABLE SECURITIES" shall mean: (i) the
Trust Shares issued upon exercise of the Class A Warrant, (ii) the Trust Shares
issued or to be issued upon exchange of Units issued on the Closing Date
pursuant to the Exchange Rights Agreement, (iii) any Trust Shares or other
securities issued as (or issuable upon the conversion or exercise of any
warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange by the Trust generally for, or in
replacement by the Trust generally of, such Trust Shares; and (v) any securities
issued in exchange for such Trust Shares in any merger or reorganization of the
Trust; provided, however, that Registrable Securities shall not include any
securities which have theretofore been registered and sold pursuant to the
Securities Act or which have been sold to the public pursuant to Rule 144 or any
similar rule promulgated by the Commission pursuant to the Securities Act; and,
provided further, that the Trust shall have no obligation under Sections 2 and 3
to register any Registrable Securities if the Trust shall deliver to Starwood
Mezzanine an opinion of counsel to the effect that the proposed sale or
disposition of all of the Registrable Securities for which registration was
requested does not require registration under the Securities Act for a sale or
disposition in a single public sale, and offers to remove any and all legends
restricting transfer from the certificates evidencing such Registrable
Securities. Notwithstanding anything to the contrary set forth herein,
Registrable Securities shall not include (x) any Units or (y) any Trust Shares
issued upon exchange of Units issued after the date hereof to any Person
(including, without limitation, Starwood Mezzanine).
REGISTRABLE SECURITIES THEN OUTSTANDING. "REGISTRABLE SECURITIES THEN
OUTSTANDING" shall mean, with respect to a specified determination date, the
Registrable Securities owned by Starwood Mezzanine on such date and the
Registrable Securities which are issuable upon exchange of Units issued on the
Closing Date and owned by Starwood Mezzanine on such date.
REGISTRATION EXPENSES. "REGISTRATION EXPENSES" shall have the meaning set
forth in Section 6.1.
REIT REQUIREMENTS. "REIT REQUIREMENTS" shall mean the requirements for
the Trust to (i) qualify as a REIT under the Internal Revenue Code of 1986, as
amended from time to time, and the rules and regulations promulgated thereunder,
and (ii) avoid any federal income or excise tax liability. "REIT Requirements"
shall also include the ownership limitation provisions set forth in Section 6.13
of the Declaration of Trust.
SECURITIES ACT. "SECURITIES ACT" shall mean the Securities Act of 1933 and
the rules and regulations of the Commission thereunder, all as the same may be
in effect at the time.
SHELF REGISTRATION. "SHELF REGISTRATION" shall have the meaning set forth
in Section 2.2.
TRANSFER. "TRANSFER" shall mean and include the act of selling, giving,
transferring, creating a trust (voting or otherwise), assigning or otherwise
disposing of (other than pledging,
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hypothecating or otherwise transferring as security) (and correlative words
shall have correlative meanings); provided however, that any transfer or other
disposition upon foreclosure or other exercise of remedies of a secured creditor
after an event of default under or with respect to a pledge, hypothecation or
other transfer as security shall constitute a "Transfer".
TRUST SHARES. "TRUST SHARES" shall mean the Class A Shares, par value
$1.00 per share, of the Trust.
UNDERWRITERS' REPRESENTATIVE. "UNDERWRITERS' REPRESENTATIVE" shall mean
the managing underwriter, or, in the case of a co-managed underwriting, the
managing underwriter designated as the Underwriters' Representative by the co-
managers.
UNITS. "UNITS" shall have the meaning set forth in the Partnership
Agreement.
VIOLATION. "VIOLATION" shall have the meaning set forth in Section 7.1.
1.2 USAGE.
(i) References to a Person are also references to its assigns and
successors in interest (by means of merger, consolidation or sale of all or
substantially all the assets of such Person or otherwise, as the case may be).
(ii) References to Registrable Securities "owned" by Starwood
Mezzanine shall include Registrable Securities beneficially owned by Starwood
but which are held of record in the name of a nominee, trustee, custodian, or
other agent.
(iii) References to a document are to it as amended, waived and
otherwise modified from time to time and references to a statute or other
governmental rule are to it as amended and otherwise modified from time to time
(and references to any provision thereof shall include references to any
successor provision).
(iv) References to Sections or to Schedules or Exhibits are to
sections hereof or schedules or exhibits hereto, unless the context otherwise
requires.
(v) The definitions set forth herein are equally applicable both
to the singular and plural forms and the feminine, masculine and neuter forms
of the terms defined.
(vi) The term "including" and correlative terms shall be deemed to
be followed by "without limitation" whether or not followed by such words or
words of like import.
(vii) The term "hereof" and similar terms refer to this Agreement
as a whole.
(viii) The "date of" any notice or request given pursuant to this
Agreement shall be determined in accordance with Section 12.
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SECTION 2. DEMAND, SHELF AND TENDER REGISTRATIONS.
2.1 If Starwood Mezzanine shall make a written request to the Trust,
then the Trust shall cause there to be filed with the Commission a registration
statement under the Securities Act (a "Demand Registration") and (subject to
Section 2.9) the Trust shall include therein all or any portion of the
Registrable Securities as Starwood shall request in such written request. Any
request made pursuant to this Section 2.1 shall be addressed to the attention of
the Secretary of the Trust, and shall specify the number of Registrable
Securities to be registered, the intended methods of disposition thereof and
that the request is for a Demand Registration pursuant to this Section 2.1.
2.2 If Starwood Mezzanine shall make a written request to the Trust,
then the Trust shall cause there to be filed with the Commission a registration
statement in accordance with the Securities Act for an offering on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act (a "Shelf
Registration"), and the Trust shall include therein the Registrable Securities
requested by Starwood Mezzanine. Any request made pursuant to this Section 2.2
shall be addressed to the attention of the Secretary of the Trust, and shall
specify the number of Registrable Securities to be registered, the possible
intended methods of disposition thereof and that the request is for a Shelf
Registration pursuant to this Section 2.2.
2.3 Notwithstanding the foregoing, no request may be made pursuant to
Section 2.1 or 2.2 (i) if within ninety (90) days prior to the date of such
request a registration statement pursuant to this Section 2.1 or 2.2 shall have
been declared effective by the Commission or (ii) during the ninety (90) day
period after Starwood Mezzanine has requested a registration pursuant to Section
2 hereof and such request has not been withdrawn.
2.4 (i) The Trust shall be entitled to postpone or suspend for up to
ninety (90) days the filing, effectiveness, supplementing or amending of any
registration statement otherwise required to be prepared and filed pursuant to
this Section 2, if the Board of Trustees of the Trust determines that such
registration and the Transfer of Registrable Securities contemplated thereby
would interfere with, or require premature disclosure of, any material
financing, acquisition, disposition, reorganization or other transaction
involving the Partnership, the Trust or any of their respective subsidiaries
(the "Transaction") and the Trust promptly gives Starwood Mezzanine notice of
such determination. Starwood Mezzanine hereby acknowledges that any notice given
by the Trust pursuant to this Section 2.4(i) shall constitute material non-
public information and that the United States securities laws prohibit any
Person who has material non-public information about a company from purchasing
or selling securities of such company or from communicating such information to
any other Person under circumstances in which it is reasonably foreseeable that
such Person is likely to purchase or sell such securities. Upon receipt of such
notice, Starwood Mezzanine agrees to cease making offers or Transfers of
Registrable Securities pursuant to such registration statement. In the event the
Trust shall give any such notice, the time period set forth in Section 2.5(ii)
shall be extended for a period equal to the number of days from the date of such
notice until the date the Board of Trustees of the Trust determine that the
making of offers or Transfers of Registrable Securities shall not interfere with
the Transaction.
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(ii) The Trust shall not be obligated to file any registration
statement pursuant to this Section 2 if, within thirty (30) days after their
receipt of the written request of Starwood Mezzanine, the Trust notifies
Starwood Mezzanine that, prior to their receipt of such request, they had a plan
or intention promptly to register equity securities under the Securities Act.
Starwood Mezzanine shall have the right to participate in any such registration
on the terms provided in Section 3 hereof.
(iii) Notwithstanding anything to the contrary contained in this
Agreement, without the consent of the Independent Trustees, no Registrable
Securities may be offered or sold pursuant to a registration statement pursuant
to Sections 2 or 3 prior to the earlier of (i) one (1) year from the date of
this Agreement or (ii) the exercise of the Class A Warrant for at least
2,000,000 Trust Shares by Starwood Mezzanine. Starwood Mezzanine shall not be
entitled to participate in any Piggyback Registration pursuant to which
securities registered thereunder are to be offered or sold prior to the earlier
of one (1) year from the date of this Agreement.
2.5 Following receipt of a request for a Demand Registration or a Shelf
Registration, the Trust shall:
(i) File the registration statement with the Commission as
promptly as practicable, and shall use reasonable efforts to have the
registration declared effective under the Securities Act as soon as reasonably
practicable, in each instance giving due regard to the need to prepare current
financial statements, conduct due diligence and complete other actions that are
reasonably necessary to effect a registered public offering.
(ii) Use reasonable efforts to keep the relevant registration
statement Continuously Effective (x) if a Demand Registration, until (A) 45 days
from the date on which the Demand Registration becomes effective under the
Securities Act or (B) such earlier date as of which all the Registrable
Securities under the Demand Registration statement shall have been disposed of
in the manner described in the registration statement and (y) if a Shelf
Registration, until (A) 365 days from the date on which the Shelf Registration
becomes effective under the Securities Act or (B) such date as of which all the
Registrable Securities under the Shelf Registration statement have been disposed
of in a manner described in the registration statement.
(iii) If any Demand Registration statement was not maintained
Continuously Effective (other than pursuant to Section 2.4) for a period of at
least 45 days or such shorter period at the end of which all Registrable
Securities covered by such Demand Registration have been sold pursuant thereto,
Starwood shall be entitled to an additional Demand Registration; provided the
Trust shall only be obligated to maintain effective such additional Demand
Registration for a period equal to 45 days less the number of days the initial
Demand Registration was effective. If the Shelf Registration is suspended or
terminated and not Continuously Effective for a period of at least 365 days or
such shorter period at the end of which all Registrable Securities covered by
such Shelf Registration have been sold pursuant thereto (other than pursuant to
Section 2.4), the Trust shall at the request of Starwood file an additional
"shelf" registration statement and keep such subsequent shelf registration
statement Continuously Effective for a period equal to 365 days less the number
of days during which the Shelf Registration Statement was effective.
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2.6 Notwithstanding anything in this Agreement to the contrary, (i)
subject to Section 2.5(iii), in no event will the Trust be obligated to effect
more than a total of 1 Demand Registration and 1 Shelf Registration, (ii) in no
event will the Trust be obligated to effect any Demand Registration or Shelf
Registration for less than Two Hundred Fifty Thousand (250,000) Trust Shares,
(iii) in no event will the Trust be obligated to effect a Demand Registration if
the Registrable Securities proposed to be registered therein shall be covered by
a Shelf Registration statement, and (iv) no registration shall be effected under
this Agreement and no Transfer of Registrable Securities may be effected if as a
result thereof the Trust would not satisfy the REIT Requirements in any respect
or if such registration or Transfer would result in any Person Beneficially
Owning Trust Shares in excess of the ownership limitation provisions of the REIT
Requirements. For purposes of the preceding sentence, registration shall not be
deemed to have been effected (i) unless a registration statement with respect
thereto has become effective, or (ii) if after such registration statement has
become effective, the related offer, sale or distribution of Registrable
Securities thereunder is prohibited by any stop order, injunction or other order
or requirement of the Commission or other governmental agency or court for any
reason not attributable to Starwood and such prohibition is not thereafter
eliminated. If the Trust shall have complied with its obligations under this
Agreement, a right to demand a registration pursuant to this Section 2 shall be
deemed to have been satisfied (i) if a Demand Registration, upon the earlier of
(A) the date as of which all of the Registrable Securities included therein
shall have been disposed of pursuant to the Registration Statement, and (B) the
date as of which such Demand Registration shall have been Continuously Effective
for a period of forty-five (45) days, and (ii) if a Shelf Registration, upon the
earlier of (A) the date as of which all the Registrable Securities included
therein shall have been disposed of pursuant to the Registration Statement, and
(B) the date of which such Shelf Registration has been Continuously Effective
for a period of 365 days, provided (x) no stop order or similar order, or
proceedings for such an order, is thereafter entered or initiated and, (y) if
the Trust, is subject to and complies with the provisions of Sections 2.4(i) and
2.5(iii) a right to demand registration shall be deemed to have been satisfied.
2.7 A registration pursuant to this Section 2 shall be on such
appropriate registration form of the Commission as shall be selected by the
Trust and shall permit the disposition of the Registrable Securities in
accordance with the intended method or methods of disposition specified in the
request pursuant to Sections 2.1 or 2.2, respectively.
2.8 If any Demand Registration or Shelf Registration pursuant to
Section 2 involves an underwritten offering (whether on a "firm commitment",
"best efforts" or "all reasonable efforts" basis or otherwise), Starwood
Mezzanine shall select the underwriter or underwriters and manager or managers
to administer such underwritten offering; provided, however, that each Person so
selected shall be acceptable to the Trust.
2.9 Whenever the Trust shall effect a registration pursuant to this
Section 2 in connection with an underwritten offering pursuant to Section 2.8
and the Underwriters' Representative advises the Trust and Starwood Mezzanine
that, in its opinion, the amount of securities requested to be included in such
offering (whether by Starwood Mezzanine or others, including the Trust) exceeds
the amount which can be sold in such offering within a price range acceptable to
Starwood Mezzanine, securities shall be included in such offering and the
related registration, to the extent of the amount which can be sold within such
price range in the
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following order of priority: first, the Registrable Securities of Starwood
Mezzanine requested to be included in such registration pursuant to this Section
2; second, all securities to be offered by the Trust and; third, all other
securities requested to be included in such registration.
SECTION 3. PIGGYBACK REGISTRATION.
3.1 If at any time the Trust proposes to register Trust Shares under
the Securities Act in connection with the public offering solely for cash on
Form X-0, X-0, X-0, or S-11 (or any replacement or successor forms), the Trust
shall promptly give Starwood Mezzanine written notice of such registration. Upon
the written request of Starwood Mezzanine given as promptly as practicable but
in any event within twenty (20) days following the date of such notice, the
Trust shall cause to be included in such registration statement and use
reasonable efforts to be registered under the Securities Act all the Registrable
Securities that Starwood Mezzanine shall have requested to be registered; (any
such registration in which Starwood Mezzanine participates pursuant to this
Section 3.1 being referred to as a "Piggyback Registration"). The Trust shall
have the absolute right to delay, withdraw or cease to prepare or file any
registration statement for any offering referred to in this Section 3 without
any obligation or liability to Starwood Mezzanine, it being understood that any
Registrable Securities previously included in any such withdrawn Registration
Statement shall not cease to be Registrable Securities by reason of such
inclusion or withdrawal.
3.2 If the Underwriters' Representative shall advise the Trust that, in
its opinion, the amount or type of Registrable Securities requested to be
included in such registration would adversely affect such offering, or the
timing thereof, then the Trust will include in such registration, to the extent
of the amount and class which the Trust is so advised can be sold without such
adverse effect in such offering: first, all securities proposed to be sold by
the Trust for its own account; second, the Registrable Securities requested to
be included in such registration by Starwood Mezzanine pursuant to this Section
3; and third, all other securities requested to be included in such
registration.
SECTION 4. REGISTRATION PROCEDURES. Whenever required under Section 2 or
Section 3 to effect the registration of any Registrable Securities, the Trust
shall, as expeditiously as practicable:
4.1 Prepare and file with the Commission a registration statement with
respect to such Registrable Securities and use reasonable efforts to cause such
registration statement to become effective; provided, however, that before
filing a registration statement or prospectus or any amendments or supplements
thereto, the Trust shall furnish to counsel for Starwood Mezzanine, copies of
all such documents in the form substantially as proposed to be filed with the
Commission.
4.2 Prepare and file with the Commission such amendments and supplements
to such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act and rules thereunder with respect to the disposition of all
securities covered by such registration statement. If the registration is for an
underwritten offering, the Trust shall amend the registration statement or
supplement the prospectus whenever required by the terms of the underwriting
agreement entered
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into pursuant to Section 5.2. If the registration statement is for a Shelf
Registration, the Trust shall amend the registration statement or supplement the
prospectus so that it will remain current and in compliance with the
requirements of the Securities Act for the period specified in Section 2.5(ii),
and if during such period any event or development occurs as a result of which
the registration statement or prospectus contains a misstatement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, the Trust shall
promptly notify Starwood Mezzanine, amend the registration statement or
supplement the prospectus so that each will thereafter comply with the
Securities Act and furnish to Starwood Mezzanine such amended or supplemented
prospectus, which each such Holder shall thereafter use in the Transfer of
Registrable Securities covered by such registration statement. Pending any such
amendment or supplement described in this Section 4.2, Starwood Mezzanine shall
cease making offers or Transfers of Registrable Securities pursuant to the prior
prospectus. In the event that any Registrable Securities included in a
registration statement subject to, or required by, this Agreement remain unsold
at the end of the period during which the Trust is obligated to use reasonable
efforts to maintain the effectiveness of such registration statement, the Trust
may file a post-effective amendment to the registration statement for the
purpose of removing such Registrable Securities from registered status.
4.3 Furnish to Starwood Mezzanine, without charge, such numbers of
copies of the registration statement, any pre-effective or post-effective
amendment thereto, the prospectus, including each preliminary prospectus and any
amendments or supplements thereto, in each case in conformity with the
requirements of the Securities Act and the rules thereunder, and such other
related documents as Starwood Mezzanine may reasonably request in order to
facilitate the disposition of Registrable Securities.
4.4 Use reasonable efforts (i) to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such states where an exemption from registration is not available and as
shall be reasonably requested by the Underwriters' Representative and (ii) to
obtain the withdrawal of any order suspending the effectiveness of a
registration statement; or the lifting of any suspension of the qualification
(or exemption from qualification) of the offer and transfer of any of the
Registrable Securities in any state, at the earliest possible moment; provided,
however, that the Trust shall not be required in connection therewith or as a
condition thereto to qualify to do business or to consent to general service of
process in any state.
4.5 In the event of any underwritten offering, use reasonable efforts to
enter into and perform its obligations under an underwriting agreement
(including indemnification and contribution obligations of underwriters), in
usual and customary form, with the managing underwriter or underwriters of such
offering. The Trust shall also cooperate with Starwood Mezzanine, and the
Underwriters' Representative for such offering in the marketing of the
Registrable Securities, including making available the officers, accountants,
counsel, premises, books and records of the Trust for such purpose, but the
Trust shall not be required to incur any material out-of-pocket expense pursuant
to this sentence.
4.6 Promptly notify Starwood Mezzanine of any stop order issued or
threatened to be issued by the Commission in connection therewith and take all
reasonable actions required to prevent the entry of such stop order or to remove
it if entered.
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4.7 Make available for inspection by Starwood Mezzanine, any underwriter
participating in such offering and the representatives of Starwood Mezzanine and
Underwriter (but not more than one firm of counsel to Starwood Mezzanine), all
financial and other information as shall be reasonably requested by them, and
provide Starwood Mezzanine, any underwriter participating in such offering and
the representatives of Starwood Mezzanine and Underwriter the reasonable
opportunity to discuss the business affairs of the Trust with their principal
executives and independent public accountants who have certified the audited
financial statements included in such registration statement, in each case all
as necessary to enable them to exercise their due diligence responsibility under
the Securities Act; provided, however, that information that the Trust
determines to be confidential and which the Trust advises such Person in
writing, is confidential shall not be disclosed unless such Person signs a
confidentiality agreement reasonably satisfactory to the Trust or Starwood
Mezzanine agrees to be responsible for such Person's breach of confidentiality
on terms reasonably satisfactory to the Trust.
4.8 Use reasonable efforts to obtain a so-called "comfort letter" from
the independent public accountants of the Trust, and legal opinions of counsel
to the Trust addressed to Starwood Mezzanine, in customary form and covering
such matters of the type customarily covered by such letters, and in a form that
shall be reasonably satisfactory to Starwood Mezzanine. Delivery of any such
opinion or comfort letter shall be subject to the recipient furnishing such
written representations or acknowledgements as are customarily provided by
selling shareholders who receive such comfort letters or opinions.
4.9 Use reasonable efforts to cause the Registrable Securities covered
by such registration statement (i) if the Trust Shares are then listed on a
securities exchange or included for quotation in a recognized trading market, to
continue to be so listed or included for a reasonable period of time after the
offering, and (ii) to be registered with or approved by such other United States
or state governmental agencies or authorities as may be necessary by virtue of
the business and operations of the Trust to enable Starwood Mezzanine to
consummate the disposition of such Registrable Securities.
4.10 Take such other actions as are reasonably required in order to
expedite or facilitate the disposition of Registrable Securities included in
each such registration.
SECTION 5. STARWOOD MEZZANINE'S OBLIGATIONS. It shall be a condition
precedent to the obligations of the Trust to take any action pursuant to this
Agreement with respect to the Registrable Securities of Starwood Mezzanine that
Starwood Mezzanine shall:
5.1 Furnish to the Trust such information regarding Starwood Mezzanine,
the number of the Registrable Securities owned by it, and the intended method of
disposition of such securities as shall be required to effect the registration
of Registrable Securities of Starwood Mezzanine, and to cooperate fully with the
Trust in preparing such registration.
5.2 In the case of a registration under Section 3, agree to sell its
Registrable Securities to the underwriters at the same price and on
substantially the same terms and conditions as the Trust or the other Persons on
whose behalf the registration statement was being filed have agreed to sell
their securities, and, to execute the underwriting agreement agreed to by the
Trust and such other persons.
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SECTION 6. EXPENSES OF REGISTRATION. Expenses in connection with
registrations pursuant to this Agreement shall be allocated and paid as follows:
6.1 With respect to each Demand Registration and Shelf Registration, the
Trust shall bear and pay all expenses incurred in connection with any
registration, filing, or qualification of Registrable Securities with respect to
such registration for Starwood Mezzanine, including all registration, filing and
National Association of Securities Dealers, Inc. fees, all fees and expenses of
complying with securities or blue sky laws, all printing expenses, messenger and
delivery expenses, the reasonable fees and disbursements of counsel for the
Trust and of the independent public accountants for the Trust, including the
expenses of "cold comfort" letters required by or incident to such performance
and compliance (the "Registration Expenses"), but excluding underwriting
discounts and commissions relating to Registrable Securities and all fees and
expenses of counsel for Starwood Mezzanine; provided, however, that the Trust
shall not be required to pay for any expenses of any registration proceeding
begun pursuant to Section 2 if the registration is subsequently withdrawn (in
which case all holders of securities participating in such registration shall
bear such expenses, pro rata), unless, in the case of a Demand Registration or a
Shelf Registration, Starwood Mezzanine agrees that such withdrawn registration
shall have constituted one of the Demand and Shelf Registrations available to
them under Section 2 hereof.
6.2 The Trust shall bear and pay all Registration Expenses incurred in
connection with any Piggyback Registrations pursuant to Section 3 but excluding
underwriting discounts and commissions relating to Registrable Securities and
all fees and expenses of counsel for Starwood Mezzanine.
SECTION 7. INDEMNIFICATION; CONTRIBUTION. If any Registrable Securities
are included in a registration statement under this Agreement:
7.1 To the extent permitted by applicable law, the Trust shall indemnify
and hold harmless Starwood Mezzanine, each Person, if any, who controls Starwood
Mezzanine within the meaning of the Securities Act, and each officer, director,
partner and employee of Starwood Mezzanine and such controlling Person, against
any and all losses, claims, damages, liabilities and expenses (joint or
several), including reasonable attorneys' fees and disbursements and reasonable
expenses of investigation, incurred by such party pursuant to any actual or
threatened action, suit, proceeding or investigation, or to which any of the
foregoing Persons may otherwise become subject under the Securities Act, the
Exchange Act or other federal or state laws, insofar as such losses, claims,
damages, liabilities and expenses arise out of or are based upon any of the
following statements, omissions or violations (collectively, a "Violation"):
(i) Any untrue statement or alleged untrue statement of a material
fact contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein, or any amendments or
supplements thereto; or
(ii) The omission or alleged omission to state therein a material
fact required to be stated therein, or necessary to make the statements therein
not misleading; provided, however, that the indemnification required by this
Section 7.1 shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or expense if such settlement is effected
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without the consent of the Trust (which consent shall not be unreasonably
withheld), nor shall the Trust be liable in any such case for any such loss,
claim, damage, liability or expense to the extent that it arises out of or is
based upon a Violation which occurs in reliance upon and in conformity with
information furnished to the Trust by the indemnified party expressly for use in
connection with such registration; and provided, further, that the indemnity
agreement contained in this Section 7 shall not apply to the extent that any
such loss is based on or arises out of an untrue statement or alleged untrue
statement of a material fact, or an omission or alleged omission to state a
material fact, contained in or omitted from any preliminary prospectus if the
final prospectus shall correct such untrue statement or alleged untrue
statement, or such omission or alleged omission, and a copy of the final
prospectus has not been sent or given to such person at or prior to the
confirmation of sale to such person if an underwriter was under an obligation to
deliver such final prospectus and failed to do so.
7.2 To the extent permitted by applicable law, Starwood Mezzanine shall
indemnify and hold harmless the Trust, its Trustees, officers, employees and
agents, each Person, if any, who controls the Trust within the meaning of the
Securities Act, and the trustees, directors, officers, employees or agents of
such controlling Person against any and all losses, claims, damages, liabilities
and expenses (joint and several), including reasonable attorneys' fees and
disbursements and reasonable expenses of investigation, incurred by such party
pursuant to any actual or threatened action, suit, proceeding or investigation,
or to which any of the foregoing Persons may otherwise become subject under the
Securities Act, the Exchange Act or other federal or state laws, but only
insofar as such losses, claims, damages, liabilities and expenses arise out of
or are based upon any Violation, in each case to the extent that such Violation
arises out of or is based upon information furnished by Starwood Mezzanine
expressly for use in connection with such registration; provided, however, that
(x) the indemnification required by this Section 7.2 shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability or expense if such
settlement is effected without the consent of Starwood Mezzanine (which consent
shall not be unreasonably withheld) and (y) in no event shall the amount of any
indemnity under this Section 7.2 exceed the gross proceeds from the applicable
offering received by Starwood Mezzanine.
7.3 Promptly after receipt by an indemnified party under this Section 7 of
notice of the commencement of any action, suit, proceeding, investigation or
threat thereof made in writing for which such indemnified party may make a claim
under this Section 7, such indemnified party shall deliver to the indemnifying
party a written notice thereof and the indemnifying party shall have the right
to participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume the defense
thereof with counsel mutually satisfactory to the parties; provided, however,
that an indemnified party shall have the right to retain its own counsel, with
the fees and disbursements and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time following the commencement of any
such action, if prejudicial to its ability to defend such action, shall relieve
such indemnifying party of any liability to the indemnified party under this
Section 7 to the extent of such prejudice but shall not relieve the indemnifying
party of any liability that it may have to any indemnified party otherwise than
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pursuant to this Section 7. Any fees and expenses incurred by the indemnified
party (including any fees and expenses incurred in connection with investigating
or preparing to defend such action or proceeding) shall be paid to the
indemnified party, as incurred, within thirty (30) days of written notice
thereof to the indemnifying party (regardless of whether it is ultimately
determined that an indemnified party is not entitled to indemnification
hereunder). Any such indemnified party shall have the right to employ separate
counsel in any such action, claim or proceeding and to participate in the
defense thereof, but the fees and expenses of such counsel shall be the expenses
of such indemnified party unless (i) the indemnifying party has agreed to pay
such fees and expenses or (ii) the indemnifying party shall have failed to
promptly assume the defense of such action, claim or proceeding or (iii) the
named parties to any such action, claim or proceeding (including any impleaded
parties) include both such indemnified party and the indemnifying party, and
such indemnified party shall have been advised by counsel in writing that there
may be one or more legal defenses available to it which are different from or in
addition to those available to the indemnifying party and that the assertion of
such defenses would create a conflict of interest such that counsel employed by
the indemnifying party could not faithfully represent the indemnified party (in
which case, if such indemnified party notifies the indemnifying party in writing
that it elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the defense of
such action, claim or proceeding on behalf of such indemnified party, it being
understood, however, that the indemnifying party shall not, in connection with
any one such action, claim or proceeding or separate but substantially similar
or related actions, claims or proceedings in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys (together with
appropriate local counsel) at any time for all such indemnified parties, unless
in the reasonable judgment of such indemnified party a conflict of interest may
exist between such indemnified party and any other of such indemnified parties
with respect to such action, claim or proceeding, in which event the
indemnifying party shall be obligated to pay the fees and expenses of such
additional counsel or counsels).
7.4 If the indemnification required by this Section 7 from the
indemnifying party is unavailable to an indemnified party hereunder in respect
of any losses, claims, damages, liabilities or expenses referred to in this
Section 7:
(i) The indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the indemnifying party and indemnified parties in connection with the actions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified parties shall be determined by reference to,
among other things, whether any Violation has been committed by, or relates to
information supplied by, such indemnifying party or indemnified parties, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such Violation. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include, subject to the limitations set forth in
Section 7.1 and Section 7.2, any legal or other fees or expenses reasonably
incurred by such party in connection with any investigation or proceeding.
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(ii) The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 7.4 were determined by pro
rata allocation or by any other method of allocation which does not take into
account the equitable considerations referred to in Section 7.4(i). 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.
7.5 If indemnification is available under this Section 7, the indemnifying
parties shall indemnify each indemnified party to the full extent provided in
this Section 7 without regard to the relative fault of such indemnifying party
or indemnified party or any other equitable consideration referred to in Section
7.4.
7.6 The obligations of the Trust and Starwood Mezzanine under this Section
7 shall survive the completion of any offering of Registrable Securities
pursuant to a registration statement under this Agreement, and otherwise.
SECTION 8. DETERMINATIONS AND INTERPRETATION. All determinations of the
Trust (or the Board of Trustees of the Trust) provided for in or pursuant to
this Agreement shall be made by its Independent Trustees, including, without
limitation, any determination pursuant to Sections 2.4(i) and 2.7. All
interpretations of the terms of this Agreement shall be resolved on behalf of
the Trust by its Independent Trustees.
SECTION 9. HOLDBACK. (a) Starwood Mezzanine, if so requested by the
Underwriters' Representative in connection with an offering of any securities
covered by a registration statement filed by Trust, whether or not Starwood
Mezzanine's securities are included therein, shall not effect any public sale or
distribution of Trust Shares or any securities convertible into or exchangeable
or exercisable for Trust Shares, including a sale pursuant to Rule 144 under the
Securities Act (except as part of such underwritten registration), during the
fifteen (15)-day period prior to, and during the one hundred twenty (120)-day
period beginning on, the date such registration statement is declared effective
under the Securities Act by the Commission. In order to enforce the foregoing
covenant, the Trust shall be entitled to impose stop-transfer instructions with
respect to the Registrable Securities of Starwood Mezzanine until the end of
such period. Starwood Mezzanine shall have the right to participate in any such
registration on the terms provided herein.
(b) The Trust agrees not to effect any public sale or distribution of its
equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the fifteen (15)-day period prior to and
during the ninety (90)-day period beginning on the effective date of any
underwritten Demand Registration (except pursuant to (i) registrations on Form
S-8 or any successor form, (ii) registrations on Form S-4 or any successor form
and (iii) registrations of securities in connection with a dividend reinvestment
plan (on form(s) applicable to such securities) unless the underwriters managing
the registered public offering otherwise agree.
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SECTION 10. AMENDMENT, MODIFICATION AND WAIVERS; FURTHER ASSURANCES.
(i) This Agreement may be amended with the consent of the Trust and
the Trust may take any action herein prohibited, or omit to perform any act
herein required to be performed by it, only if the Trust shall have obtained the
written consent of Starwood Mezzanine to such amendment, action or omission to
act.
(ii) No waiver of any terms or conditions of this Agreement shall
operate as a waiver of any other breach of such terms and conditions or any
other term or condition, nor shall any failure to enforce any provision hereof
operate as a waiver of such provision or of any other provision hereof. No
written waiver hereunder, unless it by its own terms explicitly provides to the
contrary, shall be construed to effect a continuing waiver of the provisions
being waived and no such waiver in any instance shall constitute a waiver in any
other instance or for any other purpose or impair the right of the party against
whom such waiver is claimed in all other instances or for all other purposes to
require full compliance with such provision.
(iii) Each of the parties hereto shall execute all such further
instruments and documents and take all such further action as any other party
hereto may reasonably require in order to effectuate the terms and purposes of
this Agreement.
SECTION 11. ASSIGNMENT; BENEFIT. This Agreement and all of the provisions
hereof shall be binding upon and shall inure to the benefit of the parties
hereto and their respective heirs, assigns, executors, administrators or
successors; provided, however, that neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned or delegated (i) by
the Trust without the consent of Starwood Mezzanine (which consent shall not be
unreasonably withheld) or (ii) by Starwood Mezzanine unless the transferee of
the Registrable Securities is a direct or indirect partner of Starwood
Mezzanine.
SECTION 12. MISCELLANEOUS.
12.1 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, without giving regard to
the conflict of laws principles thereof.
12.2 NOTICES. All notices and requests given pursuant to this Agreement
shall be in writing and shall be made by hand-delivery, first-class mail
(registered or certified, return receipt requested), confirmed facsimile or
overnight air courier guaranteeing next business day delivery to the relevant
address specified in the Formation Agreement. Except as otherwise provided in
this Agreement, the date of each such notice and request shall be deemed to be,
and the date on which each such notice and request shall be deemed given shall
be: at the time delivered, if personally delivered or mailed; when receipt is
acknowledged, if sent by facsimile; and the next business day after timely
delivery to the courier, if sent by overnight air courier guaranteeing next
business day delivery.
12.3 ENTIRE AGREEMENT; INTEGRATION. This Agreement supersedes all prior
agreements between or among any of the parties hereto with respect to the
subject matter contained herein
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and therein, and such agreements embody the entire understanding among the
parties relating to such subject matter.
12.4 SECTION HEADINGS. Section headings are for convenience of reference
only and shall not affect the meaning of any provision of this Agreement.
12.5 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, and all of which shall
together constitute one and the same instrument. All signatures need not be on
the same counterpart.
12.6 SEVERABILITY. If any provision of this Agreement shall be invalid or
unenforceable, such invalidity or unenforceability shall not affect the validity
and enforceability of the remaining provisions of this Agreement, unless the
result thereof would be unreasonable, in which case the parties hereto shall
negotiate in good faith as to appropriate amendments hereto.
12.7 TERMINATION. This Agreement may be terminated at any time by a
written instrument signed by the Trust and Starwood Mezzanine. Unless sooner
terminated in accordance with the preceding sentence, this Agreement (other than
Section 7 hereof) shall terminate in its entirety on such date as there shall be
(a) no Registrable Securities outstanding, and (b) no securities outstanding
which are convertible or exchangeable into Registrable Securities; provided that
any Trust Shares previously subject to this Agreement shall not be Registrable
Securities following the sale of any such shares in an offering registered
pursuant to this Agreement.
12.8 ANGELES PARTICIPATING MORTGAGE TRUST. The parties hereto
understand and agree that the name "Angeles Participating Mortgage Trust" is a
designation of the Trust and its Trustees (as Trustees but not personally) under
the Declaration of Trust, and all persons dealing with the Trust shall look
solely to the Trust's assets for the enforcement of any claims against the
Trust, and that the Trustees, officers, agents and security holders of the Trust
assume no personal liability for obligations entered into on behalf of the
Trust, and their respective individual assets shall not be subject to the claims
of any person relating to such obligations.
12.9 OTHER REGISTRATION RIGHTS. The Trust will not grant directly or
indirectly to any Persons the right to request the Trust to register any equity
securities of the Trust, or any securities convertible or exchangeable into or
exercisable for such securities, without the prior written consent of Starwood
Mezzanine (which consent shall not be unreasonably withheld). The Trust hereby
severally represents and warrants that it has not previously entered into any
agreement with respect to the Trust Shares granting any registration rights to
any Person.
12.10 SUBMISSION TO JURISDICTION. Each of the parties hereto and each
of the Holders irrevocably submits and consents to the jurisdiction of the
United States District Court for the Central District of California in
connection with any action or proceeding arising out of or relating to this
Agreement, and irrevocably waives any immunity from jurisdiction thereof and
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any claim of improper venue, forum non conveniens or any similar basis to which
it might otherwise be entitled in any such action or proceeding.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the date first written above.
ANGELES PARTICIPATING MORTGAGE TRUST,
a California business trust
By:
------------------------------------------
Name:
Title:
STARWOOD MEZZANINE INVESTORS, L.P.
By: STARWOOD CAPITAL GROUP, L.P.,
a Delaware limited partnership,
General Partner
By: BSS CAPITAL PARTNERS, L.P.,
a Delaware limited partnership,
General Partner
By: STERNLICHT HOLDINGS II, INC.,
a Delaware corporation,
General Partner
By:
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Name:
Title:
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