Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of June 23, 1998 by and among Security Capital Group Incorporated, a
Maryland corporation (the "Company"), and X.X. Xxxxxx Securities Inc., Xxxxxxx,
Sachs & Co., Xxxxxxx Lynch, Pierce, Xxxxxx and Xxxxx Incorporated and Chase
Securities Inc. (the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated June 18,
1998, among the Company and the Initial Purchasers (the "Purchase Agreement"),
which provides for the sale by the Company to the Initial Purchasers of
$200,000,000 aggregate principal amount of its 6.95% Notes due 2005 (the "2005
Notes"), $100,000,000 aggregate principal amount of its 7.15% Notes due 2007
(the "2007 Notes") and $200,000,000 aggregate principal amount of its 7.70%
Notes due 2028 (the "2028 Notes" and, together with the 2005 Notes and the 2007
Notes, the "Securities"). The Securities are to be issued by the Company
pursuant to the provisions of an Indenture dated as of June 18, 1998 (as
amended, supplemented or otherwise modified from time to time, the "Indenture")
between the Company and State Street Bank and Trust Company, as trustee (the
"Trustee").
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 with respect to the
Securities set forth in this Agreement. The execution 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 defined terms shall
have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from time to
time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended from
time to time.
"Business Day" shall mean any day other than a day on which banks are
permitted or required to be closed in New York City.
"Closing Date" shall mean the Closing Date as defined in the Purchase
Agreement.
"Company" shall have the meaning set forth in the preamble and shall also
include the Company's successors.
"Effectiveness Period" shall have the meaning set forth in Section 2(b).
"Exchange Date" shall have the meaning set forth in Section 2(a)(i)(B).
"Exchange Offer" shall mean the exchange offer by the Company of Exchange
Securities for all Securities that are Registrable Securities pursuant to
Section 2(a).
"Exchange Offer Registration" shall mean a registration under the 1933 Act
effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean a registration statement
for the Exchange Offer on an appropriate form and all amendments and supplements
to such registration statement, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Exchange Securities" shall mean, with respect to the Securities of any
series, securities issued by the Company under the Indenture and containing
terms identical to the Securities of such series (except that (i) interest
thereon shall accrue from the last date on which interest was paid on the
Securities of such series or, if no such interest has been paid, from June 23,
1998 and (ii) the Exchange Securities will not provide for additional interest
accruing thereon following a failure to register such Exchange Securities under
the 1933 Act and will not contain terms with respect to transfer restrictions)
and to be offered to Holders of Registrable Securities of such series in
exchange for such Securities pursuant to the Exchange Offer.
"Holders" shall mean the Initial Purchasers, for so long as they own any
Registrable Securities, and each of their respective successors, assigns and
direct and indirect transferees permitted pursuant to the terms of the Purchase
Agreement who become registered owners of Registrable Securities under the
Indenture; provided that for purposes of Sections 4 and 5 of this Agreement, the
term "Holders" shall include Participating Broker-Dealers.
"Indenture" shall have the meaning set forth in the preamble.
"Initial Purchasers" shall have the meaning set forth in the preamble.
"Majority Holders" shall mean, with respect to the Registrable Securities
of any series, the Holders of a majority of the aggregate principal amount of
outstanding Registrable Securities of such series; provided that, for purposes
of Section 6(b), whenever the consent or approval of Holders of a specified
percentage of Registrable Securities of any series is required hereunder,
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Registrable Securities of such series held by the Company or any of its
affiliates (as such term is defined in Rule 405 under the 0000 Xxx) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage or amount.
"Offer Termination Date" shall have the meaning set forth in Section
2(a)(i)(D).
"Participating Broker-Dealer" shall have the meaning set forth in Section
4(a)(i).
"Person" shall mean an individual, partnership, corporation, limited
liability company, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
"Purchase Agreement" shall have the meaning set forth in the preamble.
"Prospectus" shall mean the prospectus included in a Registration
Statement, 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 such prospectus, and in each case including
all material incorporated by reference therein.
"Registrable Securities" shall mean the Securities of each series;
provided, however, that the Securities of any series shall cease to be
Registrable Securities of such series when (i) a Registration Statement with
respect to such Securities shall have been declared effective under the 1933 Act
and such Securities shall have been disposed of pursuant to such Registration
Statement, (ii) such Securities shall have been sold pursuant to Rule 144 or
shall then be eligible for sale pursuant to Rule 144(k) (or, in either case, any
similar provision then in force, but not Rule 144A) under the 1933 Act, (iii)
such Securities shall have ceased to be outstanding or (iv) such Securities have
been exchanged for Exchange Securities of the relevant series upon consummation
of the Exchange Offer.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with state securities or blue
sky laws, (iii) all expenses of any Person in preparing or assisting in
preparing, word processing, printing and distributing, at the request of the
Company, any Registration Statement, any Prospectus, any amendments or
supplements thereto, any underwriting agreements, securities sales agreements
and other documents relating to the performance of and compliance with this
Agreement, (iv) all fees and disbursements relating to the qualification of the
Indenture under applicable securities laws, (v) the fees and disbursements of
the Trustee and its counsel, (vi) the fees and disbursements of counsel for the
Company and for the Initial Purchasers and, in the case
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of a Shelf Registration Statement, the fees and disbursements of one counsel for
the Holders (provided that there shall be a single counsel for the Initial
Purchasers and the Holders, satisfactory to the Company, and the fees of such
counsel shall not exceed $50,000) incurred on or before the initial
effectiveness of the Shelf Registration Statement, (vii) the fees and
disbursements of the independent public accountants of the Company, including
the expenses of any special audits or "cold comfort" letters required by or
incident to such performance and compliance, but excluding underwriting
discounts, if any, and commissions and transfer taxes, if any, relating to the
sale or disposition of Registrable Securities by the Holders and (viii) the fees
and expenses of obtaining the rating for the Registrable Securities in
accordance with Section 3(a)(xv) hereof.
"Registration Statement" shall mean any registration statement of the
Company that covers any of the Exchange Securities or 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
material incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Shelf Registration" shall mean a registration effected pursuant to Section
2(b) hereof.
"Shelf Registration Statement" shall mean a registration statement for the
Shelf Registration which covers all of the Registrable Securities (except
Registrable Securities that the Holders have elected not to include in such
Shelf Registration Statement) or Securities that represent an unsold allotment
for the original offering thereof on an appropriate form under Rule 415 under
the 1933 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 material incorporated by reference therein.
"TIA" shall have the meaning set forth in Section 3(a)(xii).
"Trustee" shall have the meaning set forth in the preamble.
"Underwriters" shall have the meaning set forth in Section 3(e)(i).
"Underwritten Offering" shall mean a registration in which Registrable
Securities are sold to an Underwriter for reoffering to the public.
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2. Registration under the 1933 Act.
(a) (i) To the extent not prohibited by any applicable law or applicable
interpretation of the Staff of the SEC, the Company shall use its best efforts
to cause to be filed an Exchange Offer Registration Statement covering the
Exchange Offer on or prior to the date that is 90 days after the Closing Date,
to have such Registration Statement declared effective by the SEC on or prior to
the date that is 180 days after the Closing Date and remain effective until the
closing of the Exchange Offer and to consummate the Exchange Offer on or prior
to the date that is 210 days after the Closing Date. For purposes hereof,
"consummate" shall mean that the Exchange Offer Registration Statement shall
have been declared effective, subject to Section 2(b), the period of the
Exchange Offer provided in accordance with clause 2(a)(i)(B) below shall have
expired and all Registrable Securities of each series validly tendered in
connection with such Exchange Offer shall have been exchanged for Exchange
Securities of the corresponding series. The Company shall commence the Exchange
Offer by mailing the related Exchange Offer Prospectus and accompanying
documents to each Holder stating, in addition to such other disclosures as are
required by applicable law:
(A) that the Exchange Offer is being made pursuant to this
Registration Rights Agreement and that all Registrable Securities validly
tendered will be accepted for exchange;
(B) the dates of acceptance for exchange (which shall be a period of
at least 30 days from the date such notice is mailed) (each such date being
an "Exchange Date");
(C) that any Registrable Security not tendered will remain
outstanding and continue to accrue interest, but will not retain any rights
under this Agreement, other than Securities that represent an unsold
allotment for the original offering thereof;
(D) that Holders electing to have a Registrable Security exchanged
pursuant to the Exchange Offer will be required to surrender such
Registrable Security, together with the enclosed letters of transmittal, to
the institution and at the address specified in the notice prior to the
close of business on the last Exchange Date (the "Offer Termination Date");
and
(E) that Holders will be entitled to withdraw their election, not
later than the close of business on the Offer Termination Date, by sending
to the institution and at the address specified in the notice a telegram,
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telex, facsimile transmission or letter setting forth the name of such
Holder, the principal amount of Registrable Securities of each series
delivered for exchange and a statement that such Holder is withdrawing his
election to have such Registrable Securities exchanged.
(ii) As soon as practicable after the Offer Termination Date, the Company
shall:
(A) accept for exchange Registrable Securities or portions thereof
tendered and not validly withdrawn pursuant to the Exchange Offer; and
(B) 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 issue, and use its best efforts to cause the
Trustee to promptly authenticate and mail to each Holder, an Exchange
Security of each series equal in aggregate principal amount to the
aggregate principal amount of the Registrable Securities of the
corresponding series so accepted for exchange from such Holder.
(iii) The Company shall use its best efforts to complete the Exchange
Offer as provided above and shall comply with the applicable requirements of the
1933 Act, the 1934 Act and other applicable laws and regulations in connection
with the Exchange Offer. The Exchange Offer shall not be subject to any
conditions, other than that the Exchange Offer does not violate applicable law
or any applicable interpretation of the Staff of the SEC.
(iv) The Company may require each Holder participating in the Exchange
Offer to represent to the Company that at the time of the consummation of the
Exchange Offer (A) any Exchange Securities received by such Holder in the
Exchange Offer will be acquired in the ordinary course of its business, (B) such
Holder will have no arrangement or understanding with any Person to participate
in the distribution of the Exchange Securities within the meaning of the 1933
Act or resale of the Exchange Securities in violation of the 1933 Act, (C) if
such Holder is not a broker-dealer, that it is not engaged in and does not
intend to engage in, the distribution of the Exchange Securities, (D) if such
Holder is a broker-dealer that it will receive Exchange Securities for its own
account in exchange for Securities that were acquired as a result of market-
making or other trading activities and that it will deliver a prospectus in
connection with any resale of such Exchange Securities, and (E) if such Holder
is an affiliate of the Company, that it will comply with the registration and
prospectus delivery requirements of the 1933 Act applicable to it.
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(b) In the event that (i) the Company determines that the Exchange Offer
Registration provided for in Section 2(a) above is not available or may not be
consummated as soon as practicable after the Offer Termination Date because it
would violate applicable law or the applicable interpretations of the Staff of
the SEC, (ii) the Exchange Offer is for any other reason not consummated within
210 days after the Closing Date or (iii) in the opinion of counsel for the
Initial Purchasers, a Registration Statement must be filed and a Prospectus must
be delivered by the Initial Purchasers in connection with any offering or sale
of Registrable Securities because such Registrable Securities represent an
unsold allotment for the original offering thereof, the Company shall use its
best efforts to cause to be filed as soon as practicable after such
determination, date or notice of such opinion of counsel is given to the
Company, as the case may be, a Shelf Registration Statement providing for the
resale of such Registrable Securities and to have such Shelf Registration
Statement declared effective by the SEC within 210 days after the Closing Date.
In the event the Company is required to file a Shelf Registration Statement
solely as a result of the matters referred to in clause (iii) of the preceding
sentence, the Company shall file and have declared effective by the SEC both an
Exchange Offer Registration Statement pursuant to Section 2(a) with respect to
all Registrable Securities and a Shelf Registration Statement (which may be a
combined Registration Statement with the Exchange Offer Registration Statement)
with respect to offers and sales of Registrable Securities held by the Initial
Purchasers after completion of the Exchange Offer. The Company agrees to use its
best efforts to keep the Shelf Registration Statement continuously effective
until two years from the effective date thereof or such shorter period that will
terminate when all of the Registrable Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement (the "Effectiveness Period"). The Company further agrees 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 1933 Act or by any other rules and
regulations thereunder for shelf registration or if reasonably requested by a
Holder with respect to information relating to such Holder, and to use its best
efforts to cause any such amendment to become effective and such Shelf
Registration Statement to become usable as soon as practicable thereafter. The
Company agrees to furnish to the Holders of Registrable Securities copies of any
such supplement or amendment promptly after its being used or filed with the
SEC.
(c) The Company shall pay all Registration Expenses in connection with the
registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all
underwriting discounts, if any, and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Registrable Securities
pursuant to a Shelf Registration Statement.
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(d) An Exchange Offer Registration 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, after it has been declared effective, the
offering of Registrable Securities pursuant to a 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 Registration Statement
will be deemed not to be effective during the period of such interference until
the offering of Registrable Securities pursuant to such Registration Statement
may legally resume.
(e) Notwithstanding anything to the contrary contained herein, if (i) the
Board of Directors of the Company determines in good faith that it is in the
best interests of the Company not to disclose the existence of or facts
surrounding any proposed or pending material corporate transaction involving the
Company or its subsidiaries and (ii) the Company notifies the Holders within two
Business Days after the Board of Directors makes such determination, the Company
may allow the Shelf Registration Statement to fail to be effective and usable as
a result of such nondisclosure for up to 120 days during the Effectiveness
Period, but in no event for any period in excess of 30 consecutive days;
provided, however, that the Effectiveness Period shall be extended by the number
of days during which such registration statement was not effective or usable
pursuant to the foregoing provisions.
(f) In the event that (i) the Exchange Offer Registration Statement
relating to the Exchange Offer is not filed with the SEC on or prior to the date
that is 90 days after the Closing Date (unless a Shelf Registration Statement is
filed on or prior to such date), (ii) the Exchange Offer Registration Statement
is not declared effective on or prior to the date that is 180 days after the
Closing Date (unless a Shelf Registration Statement has been filed on or prior
to such date), (iii) the Exchange Offer is not consummated on or prior to the
date that is 210 days after the Closing Date (unless a Shelf Registration
Statement has been filed on or prior to such date), (iv) a Shelf Registration
Statement with respect to resale of the Securities is not declared effective on
or prior to the date that is 210 days after the Closing Date (unless the
Exchange Offer has been consummated by that date) or (v) the Shelf Registration
Statement ceases to be effective at any time during the Effectiveness Period
(unless the Exchange Offer has been consummated by that date or unless such
cessation of effectiveness is permitted pursuant to Section 2(e)) (each such
event referred to in clauses (i) through (v), a "Registration Default"), then
the Company will pay additional interest (in addition to the interest otherwise
due on the Securities) to each Holder of Securities commencing upon the
occurrence of each such Registration Default in an amount equal to 0.50% per
annum, provided that such additional interest shall not exceed 0.50% per annum
in the aggregate and provided further that any Holder
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that does not deliver the information that the Company may request for inclusion
in the Shelf Registration Statement pursuant to Section 3(c) hereof upon such a
request by the Company shall not be entitled to any such additional interest for
any day after the date that is 5 Business Days after the date of request. Such
additional interest will cease accruing on such Securities with respect to any
Registration Default when such Registration Default has been cured.
(g) Without limiting the remedies available to the Initial Purchasers and
the 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 Initial Purchasers or the Holders for which
there is no adequate remedy at law, that it will not be possible to measure
damage for such injuries precisely and that, in the event of any such failure,
the Initial Purchasers or 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.
(a) In connection with the obligations of the Company with respect to the
Registration Statements pursuant to Section 2(a) and Section 2(b) hereof, the
Company shall reasonably promptly:
(i) prepare and file with the SEC a Registration Statement on the
appropriate form under the 1933 Act, which form shall (A) be selected by
the Company, (B) in the case of a Shelf Registration, be available for the
sale of the Registrable Securities by the selling Holders thereof and (C)
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, and use its best efforts to cause such Registration
Statement to become effective and remain effective in accordance with
Section 2 hereof;
(ii) 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 applicable period and cause each
Prospectus to be supplemented by any required prospectus supplement and, as
so supplemented, to be filed pursuant to Rule 424 under the 1933 Act; and
keep each Prospectus current during the period described under Section 4(3)
of, and Rule 174 under, the 1933 Act that is applicable to transactions by
brokers or dealers with respect to the Registrable Securities or Exchange
Securities;
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(iii) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, to one counsel for the Holders and for the Initial
Purchasers 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 the Company consents to the
use of such Prospectus and any amendment or supplement thereto in
accordance with applicable law by each of the selling Holders of
Registrable Securities and any such Underwriters in connection with the
offering and sale of the Registrable Securities covered by and in the
manner described in such Prospectus or any amendment or supplement thereto
in accordance with applicable law;
(iv) use its best efforts (A) to cooperate with the selling Holders
of Registrable Securities and their counsel in connection with the
registration or qualification of the Registrable Securities under all
applicable state securities or blue sky laws of such jurisdictions as any
Holder of Registrable Securities covered by a Registration Statement shall
reasonably request in writing by the time the applicable Registration
Statement is declared effective by the SEC and (B) to cooperate with such
Holders in connection with any filings required to be made with the
National Association of Securities Dealers, Inc. and do any and all other
acts and things which may be reasonably necessary or advisable to enable
such Holder to consummate the disposition in each such jurisdiction of such
Registrable Securities owned by such Holder; provided, however, that the
Company shall not be required to (x) register or qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it would
not otherwise be required to register or qualify but for this Section, (y)
file any general consent to service of process or (z) subject itself to
taxation in any such jurisdiction if it is not so subject;
(v) in the case of a Shelf Registration, notify each Holder of
Registrable Securities, counsel for the Holders and for the Initial
Purchasers and, if requested by such Persons, confirm in writing, (A) when
a Registration Statement has become effective and when any post-effective
amendment thereto has been filed and becomes effective, (B) of any request
by the SEC or any state securities authority for amendments and supplements
to a Registration Statement and Prospectus or for additional information
after the Registration Statement has become effective, (C) of the issuance
by the SEC or any state securities authority of any stop order suspending
the effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (D) if, between the effective date of
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a Registration Statement and the closing of any sale of Registrable
Securities covered thereby, the representations and warranties of the
Company contained in any underwriting agreement, securities sales agreement
or other similar agreement, if any, relating to the offering cease to be
true and correct in all material respects or if the Company receives any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation of
any proceeding for such purpose, (E) of the happening of any event during
the period a Shelf Registration Statement is effective which makes any
statement made in such Registration Statement or the related Prospectus
untrue in any material respect or which requires the making of any changes
in such Registration Statement or Prospectus in order to make the
statements therein not misleading and (F) of any determination by the
Company that a post-effective amendment to a Registration Statement would
be appropriate;
(vi) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the
earliest possible moment and provide prompt notice to each Holder of the
withdrawal of any such order;
(vii) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, without charge, at least one conformed copy of each
Registration Statement and any post-effective amendment thereto (without
documents incorporated therein by reference or exhibits thereto, unless
requested);
(viii) 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 (unless
required by applicable securities laws) and enable such Registrable
Securities to be in such denominations (consistent with the provisions of
the Indenture) and registered in such names as the selling Holders may
reasonably request at least two Business Days prior to the closing of any
sale of Registrable Securities;
(ix) in the case of a Shelf Registration, upon the occurrence of any
event contemplated by Section 3(a)(v)(B), (C), (D), (E) or (F) hereof, use
its best efforts, if necessary, to prepare a supplement or post-effective
amendment to a Registration Statement or the related Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the
Registrable Securities, such Prospectus will not contain any untrue
statement of a material fact or omit to state a material fact
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necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; the Company agrees to notify
the Holders to suspend use of the Prospectus as promptly as practicable
after the occurrence of such an event, and the Holders hereby agree to
suspend use of the Prospectus until the Company has amended or supplemented
the Prospectus to correct such misstatement or omission;
(x) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or any
amendment or supplement to a Prospectus, or, if requested by the Initial
Purchasers or the Holders and their counsel due to a prospectus delivery
requirement under the 1933 Act of such Initial Purchaser or such Holder, as
the case may be, any document which is to be incorporated by reference into
a Registration Statement or Prospectus after the initial filing of a
Registration Statement, provide copies of such document to the Initial
Purchasers or the Holders and their counsel which documents will be subject
to review and comment for a period of at least 5 Business Days and make
such of the representatives of the Company as shall be reasonably requested
by the Initial Purchasers or the Holders or their counsel available for
discussion of such document, and not at any time to file or to make any
such amendment, supplement or document, of which the Initial Purchasers or
the Holders and their counsel shall not have previously been advised and
furnished a copy of, or to which the Initial Purchasers or the Holders or
their counsel shall reasonably object; provided, however, that no
additional interest shall accrue pursuant to Section 2(f) during the period
the Company is in good faith attempting to remedy or otherwise redress the
objections of Holders, Participating Broker-Dealers, the Initial Purchasers
or their counsel, as the case may be;
(xi) obtain a CUSIP number for all Exchange Securities or Registrable
Securities, as the case may be, not later than the effective date of a
Registration Statement;
(xii) cause the Indenture to be qualified under the Trust Indenture
Act of 1939, as amended (the "TIA"), in connection with the registration of
the Exchange Securities or Registrable Securities, as the case may be, and
cooperate with the Trustee and the Holders to effect such changes to the
Indenture as may be required for the Indenture to be so qualified in
accordance with the terms of the TIA and execute, and use its best efforts
to 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 the Indenture to be so qualified in a timely manner;
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(xiii) in the case of a Shelf Registration, make available for
inspection by a representative of the Holders of the Registrable
Securities, any Underwriter participating in any disposition pursuant to
such Shelf Registration Statement, and counsel for the Holders, at
reasonable times and in a reasonable manner, all financial and other
records, pertinent documents and properties of the Company, and cause the
respective officers, directors and employees of the Company to supply all
information reasonably requested by any such representative, Underwriter,
attorney or accountant in connection with a Shelf Registration Statement,
in each case that would customarily be reviewed or examined in connection
with "due diligence" review of the Company; the Company may, prior to
furnishing any such information, require each Holder, its counsel, each
Participating Broker-Dealer, the Underwriters and their counsel to execute
a confidentiality agreement reasonably satisfactory to the Company to keep
confidential any non-public information relating to the Company received by
such person and not to disclose such information (other than to an
affiliate or prospective purchaser who agrees to respect the
confidentiality provisions of this Section 3(a)(xiii)) until such
information has been made generally available to the public unless such
disclosure is made in connection with a court proceeding or required by
law;
(xiv) if reasonably requested by any Holder of Registrable Securities
covered by a Registration Statement, (A) promptly include in a Prospectus
supplement or post-effective amendment such information with respect to
such Holder as such Holder reasonably requests to be included therein and
(B) make all required filings of such Prospectus supplement or such post-
effective amendment as soon as the Company has received notification of the
matters to be included in such filing;
(xv) cause all Registrable Securities covered by a Registration
Statement to be rated with the appropriate rating agencies, if so requested
by the Majority Holders; and
(xvi) in the case of an Underwritten Offering pursuant to a Shelf
Registration, enter into such customary agreements and take all such other
customary actions in connection therewith (including those reasonably
requested by counsel for the Holders) in order to expedite or facilitate
the disposition of such Registrable Securities and in such connection, (A)
to the extent possible, make such representations and warranties to the
Holders and any Underwriters of such Registrable Securities with respect to
the business of the Company and its subsidiaries, the Registration
Statement, Prospectus and documents incorporated
13
by reference or deemed incorporated by reference, if any, in each case, in
form, substance and scope as are customarily made by issuers to
underwriters in underwritten offerings and confirm the same if and when
requested, (B) obtain opinions of counsel to the Company (which counsel and
opinions, in form, scope and substance, shall be reasonably satisfactory to
the Holders and such Underwriters and their respective counsel) addressed
to each selling Holder and Underwriter of Registrable Securities, covering
the matters customarily covered in opinions requested in underwritten
offerings, (C) obtain "cold comfort" letters from the independent certified
public accountants of the Company (and, if necessary, any other certified
public accountant of any subsidiary of the Company, or any business
acquired by the Company for which financial statements and financial data
are or are required to be included in the Registration Statement) addressed
to each selling Holder and Underwriter of Registrable Securities, 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 (D) deliver such documents and certificates as
may be reasonably requested by counsel for the Holders to evidence the
continued validity of the representations and warranties of the Company
made pursuant to clause (A) above and to evidence compliance with any
customary conditions in an underwriting agreement. In the case of any
Underwritten Offering, the Company shall provide written notice to the
Holders of all Registrable Securities of such Underwritten Offering at
least 30 days prior to the filing of a prospectus supplement for such
Underwritten Offering. Such notice shall (x) offer each such Holder the
right to participate in such Underwritten Offering, (y) specify a date,
which shall be no earlier than 10 days following the date of such notice,
by which such Holder must inform the Company of its intent to participate
in such Underwritten Offering and (z) include the instructions such Holder
must follow in order to participate in such Underwritten Offering.
(b) Each Holder of Registrable Securities agrees, if requested (pursuant
to a timely written notice) by the managing underwriters in an underwritten
offering or by a placement agent in a private offering of the Company's debt
securities, not to effect any private sale or distribution (including a sale
pursuant to Rule 144 or Rule 144A under the 1933 Act, but excluding non-public
sales to any of its affiliates, officers, directors, employees and controlling
persons), of any of the Registrable Securities except pursuant to an Exchange
Offer, during the period beginning 10 days prior to, and ending 90 days after
the closing date of the underwritten offering.
(c) In the case of a Shelf Registration Statement, the Company may require
each Holder of Registrable Securities to promptly furnish, but not later than 5
Business Days after written request, to the Company such information regarding
the Holders and the
14
proposed distribution by such Holder of such Registrable Securities as the
Company may from time to time reasonably request in writing. Notwithstanding
anything in this Agreement to the contrary, if a Holder does not provide the
information required above, then such Holder will not be included in such Shelf
Registration Statement.
(d) (i) In the case of a Shelf Registration Statement, each Holder and
each Participating Broker-Dealer agrees that, upon receipt of any notice from
the Company of the happening of any event of the kind described in Section
3(a)(v) hereof, such Holder or Participating Broker-Dealer will forthwith
discontinue disposition of Registrable Securities pursuant to a Registration
Statement until such Holder's or Participating Broker-Dealer's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section
3(a)(ix) hereof, and, if so directed by the Company, such Holder or
Participating Broker-Dealer will deliver to the Company (at its expense) all
copies in its possession, other than permanent file copies then in such Holder's
or Participating Broker-Dealer's possession, of the Prospectus covering such
Registrable Securities current at the time of receipt of such notice.
(ii) If the Company shall give any such notice to suspend the
disposition of Registrable Securities pursuant to a Registration Statement,
the Company shall extend the period during which the Registration Statement
shall be maintained effective pursuant to this Agreement by the number of
days during the period from and including the date of the giving of such
notice to and including the date when the Holders shall have received
copies of the supplemented or amended Prospectus necessary to resume such
dispositions.
(e) (i) The Holders of Registrable Securities covered by a Shelf
Registration Statement who desire to do so may sell such Registrable Securities
in an Underwritten Offering. In any such Underwritten Offering, the investment
banker or investment bankers and manager or managers (the "Underwriters") that
will administer the offering will be selected by the Majority Holders and must
be reasonably acceptable to the Company.
(ii) No Holder of Registrable Securities may participate in any
Underwritten Offering hereunder unless such Holder (A) agrees to sell such
Holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (B) completes and executes all questionnaires,
underwriting agreements, powers of attorney, lock-up letters and other
documents reasonably required under the terms of such underwriting
arrangements.
15
(ii) The Company shall not under any circumstances be liable for any
underwriting discounts or commissions or reimbursement of underwriters'
expenses in connection with an Underwritten Offering.
4. Participation of Broker-Dealers in Exchange Offer.
(a) (i) The Company understands that the Staff of the SEC has taken
the position that any broker-dealer that receives Exchange Securities for
its own account in the Exchange Offer in exchange for Securities that were
acquired by such broker-dealer as a result of market-making or other
trading activities (a "Participating Broker-Dealer") may be deemed to be an
"underwriter" within the meaning of the 1933 Act in connection with any
resale of such Exchange Securities.
(ii) The Company understands that it is the Staff's position that if
the Prospectus contained in the Exchange Offer Registration Statement
includes a plan of distribution containing a statement to the above effect
and the means by which Participating Broker-Dealers may resell the Exchange
Securities, without naming the Participating Broker-Dealers or specifying
the amount of Exchange Securities owned by them, such Prospectus may be
delivered by Participating Broker-Dealers to satisfy their prospectus
delivery obligation under the 1933 Act in connection with resales of
Exchange Securities for their own accounts, so long as the Prospectus
otherwise meets the requirements of the 1933 Act.
(b) In light of the above, notwithstanding the other provisions of this
Agreement, the Company agrees that the provisions of this Agreement as they
relate to a Shelf Registration shall also apply to an Exchange Offer
Registration to the extent, and with such reasonable modifications thereto as
may be reasonably requested by the Initial Purchasers or by one or more
Participating Broker-Dealers, in each case as provided in clause 4(b)(ii) below,
in order to expedite or facilitate the disposition of any Exchange Securities by
Participating Broker-Dealers consistent with the positions of the Staff recited
in Section 4(a) above; provided that:
(i) the Company shall not be required to amend or supplement the
Prospectus contained in the Exchange Offer Registration Statement, as would
otherwise be contemplated by Section 3(a)(ix), for a period exceeding 180
days after the Offer Termination Date (as such period may be extended
pursuant to the penultimate paragraph of Section 3) and Participating
Broker-Dealers and other persons, if any, subject to the prospectus
delivery requirements of the 1933 Act shall not be authorized by the
Company to deliver and shall not deliver such
16
Prospectus after such period in connection with the resales contemplated by
this Section; and
(ii) the application of the Shelf Registration procedures set forth
in Section 3 of this Agreement to an Exchange Offer Registration, to the
extent not required by the positions of the Staff of the SEC or the 1933
Act and the rules and regulations thereunder, will be in conformity with
the reasonable request to the Company by the Initial Purchasers or with the
reasonable request in writing to the Company by one or more broker-dealers
who certify to the Initial Purchasers and the Company in writing that they
anticipate that they will be Participating Broker-Dealers; and provided
further that, in connection with such application of the Shelf Registration
procedures set forth in Section 3 to an Exchange Offer Registration, the
Company shall be obligated (A) to deal only with the entity representing
the Participating Broker-Dealers, which shall be X.X. Xxxxxx Securities
Inc. unless it elects not to act as such representative, (B) to pay the
fees and expenses of only one counsel representing the Participating
Broker-Dealers, which shall be counsel to the Initial Purchasers and (C) to
cause to be delivered only one, if any, "cold comfort" letter with respect
to the Prospectus in the form existing on the Offer Termination Date.
5. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the Initial
Purchasers, each Holder and each Person, if any, who controls the Initial
Purchasers or any Holder within the meaning of either Section 15 of the 1933 Act
or Section 20 of the 1934 Act, or is under common control with, or is controlled
by, the Initial Purchasers or any Holder, from and against any and all losses,
claims, damages and liabilities (including without limitation the reasonable
legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted) and arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment thereto pursuant to which Exchange
Securities or Registrable Securities were registered under the 1933 Act,
including all documents incorporated therein by reference), or arising out of or
based upon any omissions or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in any Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto, including all documents incorporated therein by reference), or arising
out of or based upon any omission or alleged omission to state therein a
material fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, except insofar as such
losses, claims, damages or
17
liabilities arise out of or are based upon any untrue statement or omission or
alleged untrue statement or omission which has been made therein or omitted
therefrom in reliance upon and in conformity with the information relating to
such Initial Purchasers or Holder furnished in writing to the Company by or on
behalf of any Initial Purchaser or Holder expressly for use in connection
therewith. In connection with any Underwritten Offering permitted by Section 3
hereof, the Company will also indemnify the Underwriters, if any, their officers
and directors and each Person who controls such Underwriter within the meaning
of either Section 15 of the 1933 Act or Section 20 of the 1934 Act to the same
extent as provided above with respect to the indemnification of the Holders, if
requested in connection with any Registration Statement.
(b) Each of the Initial Purchasers and Holders agree, severally and not
jointly, to indemnify and hold harmless the Company, its directors and officers,
and any Person who controls the Company within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, to the same extent as the foregoing
indemnity from the Company to the Initial Purchasers and Holders, but only with
respect to information relating to each Initial Purchaser or Holder furnished in
writing by or on behalf of such Initial Purchaser or Holder expressly for use in
any Registration Statement (or any amendment thereto) or any prospectus (or any
amendment or supplement thereto).
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such Person (the "Indemnified Person") shall promptly
notify the Person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person jointly with any other
Indemnifying Person, upon request of the Indemnified Person, shall retain
counsel reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others the Indemnifying Person may designate in such
proceeding and shall pay the reasonable fees and expenses of such counsel
related to such proceeding. In any such proceeding, any Indemnified Person shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary, (ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified Person or (iii) the
named parties in any such proceeding (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person and in the reasonable
opinion of counsel to the Indemnified Person representation of both parties by
the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the Indemnifying Person shall not,
in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for (A) the reasonable fees and expenses of more than
one separate firm (in addition to
18
any local counsel) for the Initial Purchasers and all Persons, if any, who
control the Initial Purchasers within the meaning of either Section 15 of the
1933 Act or Xxxxxxx 00 xx xxx 0000 Xxx, (X) the fees and expenses of more than
one separate firm (in addition to any local counsel) for the Company, its
directors, its officers who sign the Registration Statement and each Person, if
any, who controls the Company within the meaning of either such Section and (C)
the fees and expenses of more than one separate firm (in addition to any local
counsel) for all Holders and all Persons, if any, who control any Holders within
the meaning of either such Section. Any such separate firm shall be reasonably
satisfactory to the Indemnifying Person and any such firm for the Initial
Purchasers and such control Persons of Initial Purchasers shall be designated in
writing by X.X. Xxxxxx Securities Inc., any such separate firm for the Holders
and such Persons who control Holders shall be designated in writing by the
Majority Holders and any such separate firm for the Company, its directors, its
officers and such control Persons of the Company shall be designated in writing
by the Company. The Indemnifying Person shall not be liable for any settlement
of any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify any Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. No Indemnifying Person
shall, without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such proceeding.
(d) If the indemnification provided for in this Section is unavailable to
an Indemnified Person under paragraph (a) or (b) hereof in respect of any
losses, claims, damages or liabilities referred to therein, then an Indemnifying
Person, in lieu of indemnifying such Indemnified Person, shall contribute to the
amount paid or payable by such Indemnified Person as a result of such losses,
claims, damages or liabilities in such proportion as is appropriate to reflect
the relative fault of the Company on the one hand and the Initial Purchasers or
Holders on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the Company on the one
hand and the Initial Purchasers or 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 Initial Purchasers or the Holders on the other hand and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
19
(e) The Company, the Initial Purchasers and each Holder agree that it
would not be just or equitable if contribution pursuant to this Section were
determined by pro rata allocation (even if the Initial Purchasers and the
Holders were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred
to in paragraph 5(d) above. The amount paid or payable by an Indemnified Person
as a result of the losses, claims, damages and liabilities referred to in
paragraph 5(d) above shall be deemed to include, subject to the limitations set
forth above, any reasonable legal or other expenses incurred by such Indemnified
Person in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section, no Initial Purchaser or Holder
shall be required to indemnify or contribute any amount in excess of the amount
by which the total price at which Registrable Securities were sold by such
Initial Purchaser or Holder exceeds the amount of any damages that such Initial
Purchaser or Holder has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) shall be entitled to contribution from any Person who was not guilty of
such fraudulent misrepresentation. The Holders' obligations to contribute
pursuant to this Section are several in proportion to the aggregate principal
amount of Registrable Securities sold by them pursuant to such Registration
Statement.
(f) Any losses, claims, damages or liabilities for which an Indemnified
Person is entitled to indemnification or contribution under this Section shall
be paid by the Indemnifying Person to the Indemnified Person as such losses,
claims, damages or liabilities are incurred. The indemnity and contribution
agreements contained in this Section and the representations and warranties of
the Company set forth in this Agreement shall remain operative and in full force
and effect, regardless of (i) any investigation made by or on behalf of any
Initial Purchaser, any Holder or any Person controlling any Initial Purchaser,
any Holder, the Company's directors or officers or any Person controlling the
Company, (ii) acceptance of any Exchange Securities, (iii) any termination of
this Agreement and (iv) any sale of Registrable Securities pursuant to a Shelf
Registration Statement.
6. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not entered into, and on
or after the date of this Agreement will not 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.
20
(b) 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 at least
a majority in aggregate principal amount of the outstanding Registrable
Securities affected by such amendment, modification, supplement, waiver or
consent; provided, however, that no amendment, modification, supplement, waiver
or consent to any departure from the provisions of Section 5 hereof shall be
effective as against any Holder of Registrable Securities unless consented to in
writing by such Holder.
(c) Notices. (i) 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
(A) 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, which address initially is, with respect to the Initial Purchasers, the
address set forth in the Purchase Agreement; and (B) 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.
(ii) All such notices and communications shall be deemed to have been
duly given at the time delivered, if personally delivered; five Business
Days after being deposited in the mail, postage pre-paid, 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.
(iii) 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.
(d) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment or assumption, subsequent Holders; provided 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. If any
transferees 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
21
and such person shall be entitled to receive the benefits hereof. The
Initial Purchasers shall have no liability or obligation to the Company with
respect to any failure by a Holder to comply with, or any breach by any Holder
of, the obligations of such Holder under this Agreement.
(e) Third Party Beneficiary. Each Holder shall be a third party
beneficiary to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchasers, on the other hand, and 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.
(f) 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.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. This Agreement shall be governed by laws of the State
of New York.
(i) Severability. In the event that one or more of the provisions
contained herein, or the application thereof in any circumstances, 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.
22
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
SECURITY CAPITAL GROUP
INCORPORATED
/s/ Xxxxxxx X. Xxxxx
By _____________________________
Name:
Title:
X.X. XXXXXX SECURITIES INC.
XXXXXXX, XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX
AND XXXXX INCORPORATED
CHASE SECURITIES INC.
By: X.X. XXXXXX SECURITIES INC.
/s/ Xxxxxx Xxxx
By __________________________
Name: Xxxxxx Xxxx
Title: Managing Director
23
