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[EXECUTION COPY]
EXHIBIT 4.06
REGISTRATION RIGHTS AGREEMENT
Dated as of September 22, 1997
among
CRESCENT REAL ESTATE EQUITIES LIMITED PARTNERSHIP
and
XXXXXXX XXXXX & CO.
and
SALOMON BROTHERS INC
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is dated as of
September 22, 1997, by and among CRESCENT REAL ESTATE EQUITIES LIMITED
PARTNERSHIP, a Delaware limited partnership (the "Issuer"), and XXXXXXX XXXXX &
CO. and SALOMON BROTHERS INC (collectively, the "Initial Purchasers"). This
Agreement is entered into in connection with the Purchase Agreement, dated as of
September 22, 1997, among the Issuer and the Initial Purchasers (the "Purchase
Agreement") relating to the sale by the Issuer to the Initial Purchasers,
severally, of $150,000,000 aggregate principal amount of its 6 5/8% Notes due
2002 (the "2002 Notes") and $250,000,000 aggregate principal amount of its 7
1/8% Notes due 2007 (the "2007 Notes," and together with the 2002 Notes, the
"Notes"). In order to induce the Initial Purchasers to enter into the Purchase
Agreement, the Issuer has agreed to provide the registration rights set forth in
this Agreement for the equal benefit of both of the Initial Purchasers and their
direct and indirect transferees on the terms and conditions hereinafter set
forth. The execution and delivery of this Agreement is a condition to the
Initial Purchasers' obligation to purchase the Notes under the Purchase
Agreement. The parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
Additional Interest: See Section 4.
Advice: See Section 5.
Applicable Period: See Section 2(b).
Consummation Date: The 180th day after the Issue Date.
Effectiveness Period: See Section 3(a).
Event Date: See Section 4(b).
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Exchange Offer: See Section 2(a).
Exchange Registration Statement: See Section 2(a).
Exchange Securities: See Section 2(a).
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Holder: Any record holder of Registrable Securities.
Indemnified Person: See Section 7.
Indemnifying Person: See Section 7.
Indenture: The Indenture, dated as of September 22, 1997, among the Issuer
and State Street Bank and Trust Company of Missouri, N.A., as trustee, pursuant
to which the Notes are being issued, as amended or supplemented from time to
time in accordance with the terms thereof.
Initial Purchasers: See the introductory paragraph to this Agreement.
Initial Shelf Registration: See Section 3(a).
Inspectors: See Section 5(n).
Issue Date: The original issue date of the Notes.
Issuer: See the introductory paragraph to this Agreement.
NASD: See Section 5(r).
Notes: See the introductory paragraph to this Agreement.
Participant: See Section 7.
Participating Broker-Dealer: See Section 2(b).
Person: An individual, corporation, limited liability company, limited or
general partnership, limited liability partnership, joint venture, association,
joint stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
Private Exchange: See Section 2(b).
Private Exchange Securities: See Section 2(b).
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that includes any information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities covered by such
Registration Statement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
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Records: See Section 5(n).
Registrable Securities: The Notes, each Exchange Security as to which
Section 2(c)(1)(A) hereof is applicable upon original issuance and at all times
subsequent thereto and, if issued, the Private Exchange Securities, until in the
case of any such Notes, Exchange Securities or Private Exchange Securities, as
the case may be, (i) a Registration Statement (other than, with respect to any
Exchange Security as to which Section 2(c)(1)(A) hereof is applicable, the
Exchange Registration Statement) covering such Notes, Exchange Securities or
Private Exchange Securities has been declared effective by the SEC and such
Notes, Exchange Securities or Private Exchange Securities, as the case may be,
have been disposed of in accordance with such effective Registration Statement,
(ii) such Notes, Exchange Securities or Private Exchange Securities, as the case
may be, are sold in compliance with Rule 144, (iii) the date on which such
Notes, Exchange Securities or Private Exchange Securities, as the case may be,
are eligible for distribution to the public pursuant to Rule 144(k) under the
Securities Act (or any similar provision then in force) or (iv) such Notes,
Exchange Securities or Private Exchange Securities, as the case may be, cease to
be outstanding.
Registration Statement: Any registration statement of the Issuer,
including, but not limited to, the Exchange Registration Statement, that covers
any of the Registrable Securities pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such registration
statement, including post-effective amendments, all exhibits, and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
Rule 144: Rule 144 promulgated under the Securities Act, as such Rule may
be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as such Rule may
be amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.
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Shelf Notice: See Section 2(c).
Shelf Registration: See Section 3(b).
Subsequent Shelf Registration: See Section 3(b).
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee as defined in the Indenture.
Underwritten registration or underwritten offering: A registration in which
securities of the Issuers are sold to an underwriter for reoffering to the
public.
2. EXCHANGE OFFER
(a) The Issuer agrees to file with the SEC after the Issue Date an offer
to exchange (the "Exchange Offer") any and all of the Notes for a like aggregate
principal amount of debt securities of the Issuer which are identical in all
material respects to the respective Notes (the "Exchange Securities") (and which
are entitled to the benefits of the Indenture which, as of the commencement of
the Exchange Offer, will have been qualified under the TIA), except that the
Exchange Securities shall have been registered pursuant to an effective
Registration Statement under the Securities Act and shall contain no restrictive
legend thereon. The Issuer agrees to use its reasonable best efforts to keep the
Exchange Offer open for such period as is required by applicable law after the
effectiveness of the Exchange Offer Registration Statement (as defined below)
and to consummate the Exchange Offer on or prior to the Consummation Date. The
Exchange Offer will be registered under the Securities Act on the appropriate
form (the "Exchange Registration Statement") and will comply with all applicable
tender offer rules and regulations under the Exchange Act. Each Holder who
participates in the Exchange Offer will be deemed to represent that any Exchange
Securities received by it will be acquired in the ordinary course of its
business, that at the time of the consummation of the Exchange Offer such Holder
will have no arrangement with any person to participate in the distribution of
the Exchange Securities in violation of the provisions of the Securities Act,
and that such Holder is not an affiliate of the Issuer within the meaning of the
Securities Act. Upon consummation of the Exchange Offer in accordance with this
Section 2, the provisions of this Agreement shall continue to apply, mutatis
mutandis, solely with respect to Registrable Securities that are Private
Exchange Securities and Exchange Securities held by Participating Broker-Dealers
(provided that in the case of Exchange Securities held by Participating
Broker-Dealers, the provisions of this Agreement shall continue to apply only
for a period of 120 days (subject to extension under the circumstances described
in the last paragraph of Section 5) after the effective date of the Exchange
Registration Statement or for such shorter period ending when all of the
Exchange
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Securities held by such Participating Broker-Dealers have been sold), and the
Issuer shall have no further obligation to register Registrable Securities
(other than Private Exchange Securities and other than Exchange Securities as to
which clause (c)(1)(A) hereof applies) pursuant to Section 3 of this Agreement.
No securities other than the Exchange Securities shall be included in the
Exchange Registration Statement.
(b) The Issuer shall include within the Prospectus contained in the
Exchange Registration Statement one or more section(s), which shall contain a
summary statement of the positions taken or policies made by the Staff of the
SEC with respect to the potential "underwriter" status of any broker-dealer that
is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of
Exchange Securities received by such broker-dealer in the Exchange Offer (a
"Participating Broker-Dealer"). Such section(s) shall also allow the use of the
Prospectus by all categories of persons required to be specified in the
Registration Statement as subject to the prospectus delivery requirements of the
Securities Act, including all Participating Broker-Dealers, and include a
statement describing the means by which Participating Broker-Dealers may resell
the Exchange Securities.
The Issuer shall use its reasonable best efforts to keep the Exchange
Registration Statement effective and to amend and supplement the Prospectus
contained therein in order to permit such Prospectus to be lawfully delivered by
all persons subject to the prospectus delivery requirements of the Securities
Act for such period of time as such persons must comply with such requirements
in order to resell the Exchange Securities, provided that such period shall not
exceed 120 days (or such longer period if extended pursuant to the last
paragraph of Section 5) (the "Applicable Period").
If, prior to consummation of the Exchange Offer, an Initial Purchaser
holds any Notes acquired by it and having the status of an unsold allotment in
the initial distribution, the Issuer, upon the request of such Initial
Purchaser, shall, simultaneously with the delivery of the Exchange Securities in
the Exchange Offer, issue and deliver to each such Initial Purchaser, in
exchange (the "Private Exchange") for the Notes held by such Initial Purchaser,
a like principal amount of debt securities of the Issuer that are identical in
all material respects to the Exchange Securities (the "Private Exchange
Securities") (and which are issued pursuant to the Indenture) except for the
placement of a restrictive legend on such Private Exchange Securities. The
Private Exchange Securities shall bear the same CUSIP number as the Exchange
Securities. Interest on the Exchange Securities and Private Exchange Securities
will accrue from the last interest payment date on which interest was paid on
the Notes surrendered in exchange therefor or, if no interest has been paid on
the Notes, from the Issue Date.
Any board resolution or officers' certificate under the Indenture
under which the Exchange Securities or the Private Exchange Securities will be
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issued shall provide that the holders of any of the Exchange Securities and the
Private Exchange Securities will vote and consent together on all matters (to
which such holders are entitled to vote or consent) as one class and that none
of the holders of the Exchange Securities and the Private Exchange Securities
will have the right to vote or consent as a separate class on any matter (to
which such holders are entitled to vote or consent).
(c) If (1) prior to the consummation of the Exchange Offer, the Issuer
reasonably determines in good faith or Holders of at least a majority in
aggregate principal amount of the Registrable Securities notify the Issuer that
they have reasonably determined in good faith that (A) in the opinion of counsel
to the Issuer or to such Holders, upon which opinion the Issuer is entitled to
rely, the Exchange Securities would not, upon receipt, be tradeable by such
Holders who are not affiliates of the Issuer without restriction under the
Securities Act and without restrictions under applicable blue sky or state
securities laws or (B) in the opinion of counsel to such Holders or counsel to
the Issuer, upon which opinion the Issuer is entitled to rely, the SEC is
unlikely to permit the consummation of the Exchange Offer and/or (2) subsequent
to the consummation of the Private Exchange, holders of at least a majority in
aggregate principal amount of the Private Exchange Securities so request with
respect to the Private Exchange Securities and/or (3) the Exchange Offer is
commenced and not consummated prior to the Consummation Date for any reason,
then the Issuer shall promptly deliver to the Holders and the Trustee notice
thereof (the "Shelf Notice") and shall thereafter file an Initial Shelf
Registration as set forth in Section 3 (which only in the circumstances
contemplated by clause (2) of this sentence will relate solely to the Private
Exchange Securities). The parties hereto agree that, following the delivery of a
Shelf Notice to the Holders of Registrable Securities (only in the circumstances
contemplated by clauses (1) and/or (3) of the preceding sentence), the Issuer
shall not have any further obligation to conduct the Exchange Offer or the
Private Exchange under this Section 2.
3. SHELF REGISTRATION
If a Shelf Notice is delivered as contemplated by Section 2(c), then:
(a) Initial Shelf Registration. The Issuer shall as promptly as
reasonably practicable and in any event within 60 days of the delivery of the
Shelf Notice prepare and file with the SEC a Registration Statement for an
offering to be made on a continuous basis pursuant to Rule 415 covering all of
the Registrable Securities (the "Initial Shelf Registration"), which Initial
Shelf Registration shall be on an appropriate form permitting registration of
such Registrable Securities for resale by such Holders in the manner or manners
designated by them (including, without limitation, one or more underwritten
offerings) provided, however, that notwithstanding any provision of this
Agreement to the contrary, if the Issuer is
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ineligible to file the Initial Shelf Registration on Form S-3 (or similar
successor form promulgated under the Securities Act) at the time of delivery of
the Shelf Notice, the Issuer's obligation to file the Initial Shelf Registration
hereunder shall be extended until the Issuer is eligible to file the Initial
Shelf Registration on Form S-3 (or successor form) and the Issuer shall have no
obligation to file the Initial Shelf Registration if the Effectiveness Period
shall have expired prior to such time; provided further that no extension or
elimination of the Issuer's obligation to file the Initial Shelf Registration
pursuant to this clause shall eliminate or otherwise affect the Issuer's
obligations to pay Additional Interest pursuant to Section 4. The Issuer shall
not permit any securities other than the Registrable Securities to be included
in the Initial Shelf Registration or any Subsequent Shelf Registration. The
Issuer shall use its reasonable best efforts to cause the Initial Shelf
Registration to be declared effective as soon as practicable under the
Securities Act and to keep the Initial Shelf Registration continuously effective
under the Securities Act until the date which is the earliest of (i) two years
(or any shorter period under Rule 144(k) under the Securities Act) from the
Issue Date (subject to extension pursuant to the last paragraph of Section 5
hereof), (ii) the date on which all Registrable Securities covered by the
Initial Shelf Registration have been sold in the manner set forth and as
contemplated in the Initial Shelf Registration or (iii) the date on which
Registrable Securities no longer exist (the "Effectiveness Period") or such
shorter period ending when a Subsequent Shelf Registration covering all of the
Registrable Securities has been declared effective under the Securities Act.
(b) Subsequent Shelf Registrations. If the Initial Shelf Registration or
any Subsequent Shelf Registration ceases to be effective for any reason at any
time during the Effectiveness Period (other than because of the sale of all of
the securities registered thereunder), the Issuer shall use its reasonable best
efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within 60 days of such cessation
of effectiveness use its reasonable best efforts to amend the Shelf Registration
in a manner reasonably expected to obtain the withdrawal of the order suspending
the effectiveness thereof, or file an additional "shelf" Registration Statement
pursuant to Rule 415 covering all of the Registrable Securities (a "Subsequent
Shelf Registration"). If a Subsequent Shelf Registration is filed, the Issuer
shall use its reasonable best efforts to cause the Subsequent Shelf Registration
to be declared effective as soon as practicable after such filing and to keep
such Registration Statement continuously effective for a period equal to the
number of days in the Effectiveness Period less the aggregate number of days
during which the Initial Shelf Registration or any Subsequent Shelf Registration
was previously continuously effective. As used herein the term "Shelf
Registration" means the Initial Shelf Registration and any Subsequent Shelf
Registration.
(c) Supplements and Amendments. The Issuer shall promptly supplement and
amend the Shelf Registration if required by the rules, regulations
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or written instructions applicable to the registration form used for such Shelf
Registration, if required by the Securities Act, or if reasonably requested by
the Holders of a majority in aggregate principal amount of the Registrable
Securities covered by such Registration Statement or by any underwriter of such
Registrable Securities because the failure to do so would result in the Shelf
Registration Statement containing a material misstatement or omission.
4. ADDITIONAL INTEREST
(a) The Issuer and the Initial Purchaser agree that the Holders of
Registrable Securities will suffer damages if the Issuer fails to fulfill its
obligations under Section 2 or Section 3 hereof and that it would not be
feasible to ascertain the extent of such damages with precision. Accordingly,
the Issuer agrees to pay, as liquidated damages, additional interest on the
Registrable Securities ("Additional Interest") under the circumstances and to
the extent set forth below (each of which shall be a "Registration Default" and
shall be given independent effect and shall not be duplicative or cumulative):
(i)(a) if the Exchange Offer is required to be consummated hereunder
and the Issuer fails to issue Exchange Securities prior to the Consummation Date
or (b) the Initial Shelf Registration is not declared effective by the SEC on or
prior to the Consummation Date, Additional Interest shall accrue on the
Registrable Securities included or which should have been included in such
Registration Statement over and above the stated interest at a rate of .50% per
annum commencing on the day immediately following the Consummation Date;
(ii) if the Shelf Registration has been declared effective and
thereafter ceases to be effective or the Prospectus contained therein ceases to
be usable at any time during the Effectiveness Period, as a result of the
delivery by the Issuer of the notice specified in the last paragraph of Section
5 instructing that disposition of the Registrable Securities be discontinued,
and such failure to remain effective or usable exists for more than 90 days
(whether or not consecutive) in any 12-month period, then Additional Interest
shall accrue on the Registrable Securities (over and above the stated interest)
at a rate of .50% per annum commencing on the 91st day in such 12-month period
in which such Shelf Registration ceases to be effective or the Prospectus
contained therein ceases to be usable;
provided, however, that if the Issuer shall request Holders of Notes to provide
the information called for by this Agreement for inclusion in the Shelf
Registration Statement, the Notes owned by Holders who do not deliver such
information to the Issuer will not be entitled to any Additional Interest for so
long as such Holder's failure to provide such information continues, unless the
Issuer is notified in writing by an authorized officer of the Trustee under the
Indenture or The Depository Trust Company ("DTC") as the record Holder of the
Notes, that the
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calculation of payments to beneficial owners of the Notes as a result of this
provision is not reasonably practicable; provided further that (1) upon the
consummation of the Exchange Offer or the effectiveness of the Shelf
Registration as required hereunder (in the case of clause (i) of this Section
4), or (2) in the case of clause (ii) of this Section 4 upon the effectiveness
of a Shelf Registration which had ceased to remain effective or the receipt of a
supplemental or amended Prospectus contemplated by Section 5(j) or the receipt
of the Advice which resumed the use of the Prospectus, Additional Interest on
the Registrable Securities as a result of such clause shall cease to accrue so
long as no other Registration Default has occurred and is continuing.
Notwithstanding any provision to the contrary, (A) so long as any Registrable
Security is then covered by an effective Shelf Registration Statement or usable
Prospectus as defined in clause (ii) of this Section 4(a), no Additional
Interest shall accrue on such Registrable Security and (B) no Additional
Interest shall accrue following the termination of the Effectiveness Period.
(b) The Issuer shall notify the Trustee within three business days after
each and every date on which an event occurs in respect of which Additional
Interest is required to be paid (an "Event Date"). The Issuer shall pay the
Additional Interest due on the Registrable Securities by depositing with the
Trustee, in trust, for the benefit of the Holders thereof, on or before the
applicable semiannual interest payment date, immediately available funds in sums
sufficient to pay the Additional Interest then due to Holders of Registrable
Securities. The Additional Interest amount due shall be payable on each interest
payment date to the record Holder of Registrable Securities entitled to receive
the interest payment to be made on such date as set forth in the Indenture. The
amount of Additional Interest will be determined by multiplying the applicable
Additional Interest rate by the principal amount of the affected Registrable
Securities of such Holders, multiplied by a fraction, the numerator of which is
the number of days such Additional Interest rate was applicable during such
period (determined on the basis of a 360-day year comprised of twelve 30-day
months and, in the case of a partial month, the actual number of days elapsed),
and, the denominator of which is 360. Each obligation to pay Additional Interest
shall be deemed to accrue on the first day immediately following the occurrence
of the applicable Event Date. The parties hereto agree that the Additional
Interest provided for in this Section 4 constitutes a reasonable estimate of the
damages that may be incurred by Holders of Registrable Securities by reason of
the failure of a Shelf Registration to be declared effective or the Exchange
Offer to be consummated, or a Shelf Registration to remain effective or
Prospectus contained therein to be usable as defined in Section 4(a)(ii), as the
case may be, in accordance with this Section 4.
5. REGISTRATION PROCEDURES
In connection with the registration of any Registrable Securities
pursuant to Section 2 or 3 hereof, the Issuer shall effect such registration to
permit
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the sale of such Registrable Securities in accordance with the intended method
or methods of disposition thereof, and pursuant thereto the Issuer shall:
(a) Use its reasonable best efforts to prepare and file with the SEC,
after the date hereof in the case of the Exchange Registration Statement and
prior to the 60th day after delivery of a Shelf Notice in the case of the Shelf
Registration Statement, a Registration Statement or Registration Statements as
prescribed by Section 2 or 3, and use its reasonable best efforts to cause each
such Registration Statement to become effective and remain effective as provided
herein, provided that, if (1) such filing is pursuant to Section 3, or (2) a
Prospectus contained in an Exchange Registration Statement filed pursuant to
Section 2 is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, before filing any Registration Statement or Prospectus or any
amendments or supplements thereto, the Issuer shall upon written request furnish
to and afford the Holders of the Registrable Securities (which in the case of
Registrable Securities in the form of global certificates shall be DTC) and each
such Participating Broker-Dealer, as the case may be, covered by such
Registration Statement, their counsel and the managing underwriters, if any, a
reasonable opportunity to review copies of all such documents (including copies
of any documents to be incorporated by reference therein and all exhibits
thereto) proposed to be filed. If such persons do not provide comments regarding
the Registration Statement to the Issuer within five business days, they will be
deemed to have no such comments.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration or Exchange Registration Statement, as the
case may be, as may be necessary to keep such Registration Statement
continuously effective for the Effectiveness Period or the Applicable Period, as
the case may be; cause the related Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
(or any similar provisions then in force) under the Securities Act; and comply
with the provisions of the Securities Act, the Exchange Act and the rules and
regulations of the SEC promulgated thereunder applicable to them with respect to
the disposition of all securities covered by such Registration Statement as so
amended or in such Prospectus as so supplemented and with respect to the
subsequent resale of any securities being sold by a Participating Broker-Dealer
covered by any such Prospectus; the Issuer shall not be deemed to have used its
reasonable best efforts to keep a Registration Statement effective during the
Applicable Period if the Issuer voluntarily takes any action that would result
in selling Holders of the Registrable Securities covered thereby or
Participating Broker-Dealers seeking to sell Exchange Securities not being able
to sell such Registrable Securities or such Exchange Securities during that
period unless such action is required by applicable law or unless the Issuer
complies with this Agreement, including without limitation, the provisions of
paragraph 5(k) hereof and the last paragraph of this Section 5.
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(c) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a
Prospectus contained in an Exchange Registration Statement filed pursuant to
Section 2 is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, notify the selling Holders of Registrable Securities, or each
such Participating Broker-Dealer, as the case may be, their counsel and the
managing underwriters, if any, who have provided the Issuer with their names and
addresses promptly (but in any event within two business days), and confirm such
notice in writing, (i) when a Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to a Registration
Statement or any post-effective amendment, when the same has become effective
under the Securities Act (including in such notice a written statement that any
Holder may, upon request, obtain, without charge, one conformed copy of such
Registration Statement or post-effective amendment including financial
statements and schedules, documents incorporated or deemed to be incorporated by
reference and exhibits), (ii) of the issuance by the SEC of any stop order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus or the initiation
of any proceedings for that purpose, (iii) of the receipt by the Issuer of any
notification with respect to the suspension of the qualification or exemption
from qualification of a Registration Statement or any of the Registrable
Securities or the Exchange Securities to be sold by any Participating
Broker-Dealer for offer or sale in any jurisdiction, or the initiation or, to
the knowledge of the Issuer, threatening of any proceeding for such purpose,
(iv) of the happening of any event or any information becoming known that makes
any statement made in such Registration Statement or related Prospectus or any
document incorporated or deemed to be incorporated therein by reference untrue
in any material respect or that requires the making of any changes in such
Registration Statement, Prospectus or documents so that, in the case of the
Registration Statement, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in the case of
the Prospectus, it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, and (v) any reasonable determination of the Issuer
that a post-effective amendment to a Registration Statement would be
appropriate.
(d) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a
Prospectus contained in an Exchange Registration Statement filed pursuant to
Section 2 is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, use their reasonable best efforts to prevent the issuance of
any order suspending the effectiveness of such Registration Statement or of any
order preventing or suspending the use of a Prospectus or suspending the
qualification (or exemption from qualification) of any of the Registrable
Securities or the Exchange Securities to
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be sold by any Participating Broker-Dealer, for sale in any jurisdiction, and,
if any such order is issued, to use their reasonable best efforts to obtain the
withdrawal of any such order at the earliest possible moment.
(e) If a Shelf Registration is filed pursuant to Section 3 and if
requested by the managing underwriters, if any, or the Holders of a majority in
aggregate principal amount of the Registrable Securities being sold in
connection with an underwritten offering, (i) promptly incorporate in a
prospectus supplement or post-effective amendment such information as such
managing underwriters or such Holders or counsel reasonably request to be
included therein, or (ii) make all required filings of such prospectus
supplement or such post-effective amendment as soon as practicable after the
Issuer has received notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment.
(f) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a
Prospectus contained in an Exchange Registration Statement filed pursuant to
Section 2 is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, furnish to each selling Holder of Registrable Securities and
to each such Participating Broker-Dealer who so requests and to counsel and each
managing underwriter, if any, without charge, one conformed copy of the
Registration Statement or Statements and each post-effective amendment thereto,
including financial statements and schedules, and, if requested, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a
Prospectus contained in an Exchange Registration Statement filed pursuant to
Section 2 is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, deliver to each selling Holder of Registrable Securities, or
each such Participating Broker-Dealer, as the case may be, their counsel, and
the underwriters, if any, without charge, as many copies of the Prospectus or
Prospectuses (including each form of preliminary prospectus) and each amendment
or supplement thereto and any documents incorporated by reference therein as
such Persons may reasonably request; and, subject to the last paragraph of this
Section 5, the Issuer hereby consents to the use of such Prospectus and each
amendment or supplement thereto by each of the selling Holders of Registrable
Securities or each such Participating Broker-Dealer, as the case may be, and the
underwriters or agents, if any, and dealers (if any), in connection with the
offering and sale of the Registrable Securities covered by or the sale by
Participating Broker-Dealers of the Exchange Securities pursuant to such
Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities or any
delivery of a Prospectus contained in the Exchange Registration Statement by any
Participating Broker-Dealer who seeks to sell Exchange Securities during the
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Applicable Period, to use their reasonable best efforts to register or qualify,
and to cooperate with the selling Holders of Registrable Securities or each such
Participating Broker-Dealer, as the case may be, the underwriters, if any, and
their respective counsel in connection with the registration or qualification
(or exemption from such registration or qualification) of such Registrable
Securities for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any selling Holder, Participating
Broker-Dealer, or the managing underwriters reasonably request in writing,
provided that where Exchange Securities held by Participating Broker-Dealers or
Registrable Securities are offered other than through an underwritten offering,
the Issuer agrees to cause its counsel to perform Blue Sky investigations and
file registrations and qualifications required to be filed pursuant to this
Section 5(h); keep each such registration or qualification (or exemption
therefrom) effective during the period such Registration Statement is required
to be kept effective and do any and all other reasonable acts or things
necessary or advisable to enable the disposition in such jurisdictions of the
Exchange Securities held by Participating Broker-Dealers or the Registrable
Securities covered by the applicable Registration Statement, provided that the
Issuer shall not be required to (A) qualify generally to do business in any
jurisdiction where it is not then so qualified, (B) take any action that would
subject it to general service of process in any such jurisdiction where it is
not then so subject or (C) subject itself to taxation in excess of a nominal
dollar amount in any such jurisdiction.
(i) If a Shelf Registration is filed pursuant to Section 3, reasonably
cooperate with the selling Holders of Registrable Securities and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold, which certificates
shall not bear any restrictive legends and shall be in a form eligible for
deposit with DTC; and enable such Registrable Securities to be registered in
such names as the managing underwriter or underwriters, if any, or Holders may
request.
(j) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a
Prospectus contained in an Exchange Registration Statement filed pursuant to
Section 2 is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, upon the occurrence of any event contemplated by paragraph
5(c)(iv) or 5(c)(v) above, as promptly as practicable prepare and (subject to
Section 5(a) above) file with the SEC, solely at the expense of the Issuer, a
supplement or post-effective amendment to the Registration Statement or a
supplement to the related Prospectus or any document incorporated or deemed to
be incorporated therein by reference, or file any other required document so
that, as thereafter delivered to the purchaser of the Registrable Securities
being sold thereunder or to the purchasers of the Exchange Securities to whom
such Prospectus will be delivered by a Participating Broker-Dealer, any such
Prospectus will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated
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therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(k) Use its reasonable best efforts to cause the Registrable Securities
covered by a Registration Statement or the Exchange Securities, as the case may
be, to be rated with Xxxxx'x Investors Service, Inc. and Standard & Poor's
Rating Services, a division of the XxXxxx-Xxxx Companies, if so requested by the
Holders of a majority in aggregate principal amount of Registrable Securities
covered by such Registration Statement or the Exchange Securities, as the case
may be, or the managing underwriters, if any.
(l) Prior to the effective date of the first Registration Statement
relating to the Registrable Securities, (i) provide the Trustee with printed
certificates for the Registrable Securities in a form eligible for deposit with
DTC and (ii) provide a CUSIP number for the Registrable Securities.
(m) In connection with an underwritten offering of Registrable
Securities pursuant to a Shelf Registration, enter into an underwriting
agreement as is customary in underwritten offerings and take all such other
actions as are reasonably requested by the managing underwriters in order to
expedite or facilitate the registration or the disposition of such Registrable
Securities, and in such connection, (i) make such representations and warranties
to the underwriters, with respect to the business of the Issuer and its
subsidiaries, if any, and the Registration Statement, Prospectus and documents,
if any, incorporated or deemed to be incorporated by reference therein, in each
case, as are customarily made by the Issuer to underwriters in underwritten
offerings, and confirm the same if and when requested; (ii) obtain an opinion of
counsel to the Issuer and updates thereof in form and substance reasonably
satisfactory to the managing underwriters, addressed to the underwriters
covering the matters customarily covered in opinions requested in underwritten
offerings; (iii) obtain "cold comfort" letters and updates thereof in form and
substance reasonably satisfactory to the managing underwriters from the
independent certified public accountant(s) of the Issuer (and, if necessary, any
other independent certified public accountants of any subsidiary of the Issuer
or of any business acquired by the Issuer for which financial statements and
financial data are, or are required to be, included in the Registration
Statement), addressed to each of the underwriters, such letters to be in
customary form and covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings; and (iv) if an
underwriting agreement is entered into, the same shall contain indemnification
provisions and procedures no less favorable than those set forth in Section 7
hereof (or such other provisions and procedures acceptable to Holders of a
majority in aggregate principal amount of Registrable Securities covered by such
Registration Statement and the managing underwriters or agents) with respect to
all parties to be indemnified pursuant to said Section. The above shall be done
at each closing under such underwriting agreement, or as and to the extent
required thereunder.
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(n) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a
Prospectus contained in an Exchange Registration Statement filed pursuant to
Section 2 is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, make available for inspection by any selling Holder of such
Registrable Securities being sold, or each such Participating Broker-Dealer, as
the case may be, any underwriter participating in any such disposition of
Registrable Securities, and any attorney, accountant or other agent retained by
any such selling holder or each such Participating Broker-Dealer, as the case
may be, or underwriter (collectively, the "Inspectors"), at the offices where
normally kept, during reasonable business hours, all financial and other
records, pertinent corporate documents and properties of the Issuer
(collectively, the "Records"), as shall be reasonably necessary to enable them
to exercise any applicable due diligence responsibilities, and cause the
officers, directors and employees of the Issuer to supply all information in
each case reasonably requested by any such Inspector in connection with such
Registration Statement. Records determined in good faith by the Issuer to be
confidential shall not be disclosed by any Inspector notified of such
determination unless (i) the disclosure of such Records is necessary to avoid or
correct a misstatement or omission in such Registration Statement, (ii) the
release of such Records is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction or (iii) the information in such Records has
been made generally available to the public. Each selling Holder of such
Registrable Securities, each such Participating Broker-Dealer and underwriters
and agents of any of them will be required to enter into a confidentiality
agreement in the form customarily provided by the Issuer. Each selling Holder of
such Registrable Securities and each such Participating Broker-Dealer will be
required to further agree that it will, upon learning that disclosure of such
Records is sought in a court of competent jurisdiction, give notice to the
Issuer and allow it at its own expense to undertake appropriate action to
prevent disclosure of the Records deemed confidential.
(o) Provide an indenture trustee for the Registrable Securities or the
Exchange Securities, as the case may be, and cause the Indenture to be qualified
under the TIA not later than the effective date of the Exchange Offer or the
first Registration Statement relating to the Registrable Securities; and in
connection therewith, cooperate with the trustee under the Indenture and the
Holders of the Registrable Securities, to effect such changes thereto as may be
required for the Indenture to be so qualified in accordance with the terms of
the TIA; and execute, and use its reasonable best efforts to cause such 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.
(p) Comply in all material respects with all applicable rules and
regulations of the SEC and make generally available to its securityholders
earning statements satisfying the provisions of Section 11(a) of the Securities
Act and
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Rule 158 thereunder (or any similar rule promulgated under the Securities Act)
no later than 90 days after the end of each 12-month period (i) commencing at
the end of any fiscal quarter in which Registrable Securities are sold to
underwriters in a firm commitment or best efforts underwritten offering and (ii)
if not sold to underwriters in such an offering, commencing on the first day of
the first fiscal quarter of the Issuer after the effective date of a Shelf
Registration Statement, which statements shall cover said 12-month periods.
(q) If an Exchange Offer or a Private Exchange is to be consummated,
upon delivery of the Registrable Securities by Holders to the Issuer (or to such
other Person as directed by the Issuer) in exchange for the Exchange Securities
or the Private Exchange Securities, as the case may be, the Issuer shall xxxx,
or cause to be marked, on such Registrable Securities that such Registrable
Securities are being canceled in exchange for the Exchange Securities or the
Private Exchange Securities, as the case may be; in no event shall such
Registrable Securities be marked as paid or otherwise satisfied.
(r) Reasonably cooperate with each seller of Registrable Securities
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Securities and their
respective counsel in connection with any filings required to be made with the
National Association of Securities Dealers, Inc. (the "NASD").
(s) Use its reasonable best efforts to take all other steps necessary to
effect the registration of the Registrable Securities covered by a Registration
Statement contemplated hereby.
Throughout the Effectiveness Period, the Issuer may require each seller
of Registrable Securities or Participating Broker-Dealer as to which any
registration is being effected to furnish to the Issuer such information
regarding such seller or Participating Broker-Dealer and the distribution of
such Registrable Securities or Exchange Securities to be sold by such
Participating Broker-Dealer, as the case may be, as the Issuer may, from time to
time, reasonably request. The Issuer may exclude from such registration the
Registrable Securities of any seller or Participating Broker-Dealer who
unreasonably fails to furnish such information within a reasonable time after
receiving such request. Each seller as to which any Shelf Registration is being
effected is deemed to agree to furnish promptly (and in any event within five
business days) to the Issuer all information required to be disclosed in order
to make the information previously furnished to the Issuer by such seller not
materially misleading.
Each Holder of Registrable Securities and each Participating
Broker-Dealer agrees by acquisition of such Registrable Securities or Exchange
Securities to be sold by such Participating Broker-Dealer, as the case may be,
that, upon receipt of any notice from the Issuer of the happening of any event
of the kind described
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in Section 5(c)(ii), 5(c)(iii), 5(c)(iv), or 5(c)(v), such Holder or
Participating Broker-Dealer will forthwith discontinue disposition of such
Registrable Securities covered by such Registration Statement or Prospectus or
Exchange Securities to be sold by such Holder or Participating Broker-Dealer, as
the case may be, until such holder's receipt of the copies of the supplemented
or amended Prospectus contemplated by Section 5(j), or until it is advised in
writing (the "Advice") by the Issuer that the use of the applicable Prospectus
may be resumed, and has received copies of any amendments or supplements
thereto. In the event the Issuer shall give any such notice, each of the
Effectiveness Period and the Applicable Period shall be extended by the number
of days during such periods from and including the date of the giving of such
notice to and including the date when each seller of Registrable Securities
covered by such Registration Statement or Exchange Securities to be sold by such
Participating Broker-Dealer, as the case may be, shall have received (x) the
copies of the supplemented or amended Prospectus contemplated by Section 5(j) or
(y) the Advice.
6. REGISTRATION EXPENSES
(a) All fees and expenses incident to the performance of or compliance
with this Agreement by the Issuer shall be borne by the Issuer whether or not
the Exchange Offer or a Shelf Registration is filed or becomes effective,
including, without limitation, (i) all registration and filing fees (including,
without limitation, (A) fees with respect to filings required to be made with
the NASD in connection with an underwritten offering and (B) fees and expenses
of compliance with state securities or Blue Sky laws (including, without
limitation, fees and disbursements of counsel in connection with Blue Sky
qualifications of the Registrable Securities or Exchange Securities and
determination of the eligibility of the Registrable Securities or Exchange
Securities for investment under the laws of such jurisdictions in the United
States (x) where the holders of Registrable Securities are located, in the case
of the Exchange Securities, or (y) as provided in Section 5(h), in the case of
Registrable Securities or Exchange Securities to be sold by a Participating
Broker-Dealer during the Applicable Period)), (ii) printing expenses (including,
without limitation, expenses of printing certificates for Registrable Securities
or Exchange Securities in a form eligible for deposit with DTC and of printing
prospectuses in such form as the Issuer and such managing underwriters, if any,
shall determine if the printing of prospectuses is requested by the managing
underwriters, if any, or, in respect of Registrable Securities or Exchange
Securities to be sold by any Participating Broker-Dealer during the Applicable
Period, by the Holders of a majority in aggregate principal amount of the
Registrable Securities included in any Registration Statement or of such
Exchange Securities, as the case may be), (iii) reasonable messenger, telephone
and delivery expenses, (iv) fees and disbursements of counsel for the Issuer and
reasonable fees and disbursements of special counsel for the sellers of
Registrable Securities (subject to the provisions of Section 6(b)), (v) fees and
disbursements of all
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independent certified public accountants referred to in Section 5(m)(iii)
(including, without limitation, the expenses of any special audit and "cold
comfort" letters required by or incident to such performance), (vi) rating
agency fees, (vii) Securities Act liability insurance, if the Issuer desires
such insurance, (viii) fees and expenses of all other Persons retained by the
Issuer, (ix) internal expenses of the Issuer (including, without limitation, all
salaries and expenses of officers and employees of the Issuer performing legal
or accounting duties), (x) the expense of any annual audit required by the
Securities Act or the rules and regulations thereunder, (xi) the fees and
expenses incurred in connection with the listing of the securities to be
registered on any securities exchange on which similar securities issued by the
Issuer are then listed, if the Issuer elects to list such securities and (xii)
the expenses relating to printing, word processing and distributing all
Registration Statements, underwriting agreements, securities sales agreements,
indentures and any other documents necessary in order to comply with this
Agreement. All underwriting discounts and selling commissions applicable to the
sale of Registrable Securities or the sale of Exchange Securities to be sold by
a Participating Broker-Dealer shall be borne by the selling Holder or
Participating Broker-Dealer, as the case may be.
(b) In connection with any Shelf Registration hereunder, the Issuer
shall reimburse the Holders of the Registrable Securities being registered in
such registration for the fees and disbursements of not more than one counsel
chosen by the Holders of a majority in aggregate principal amount of the
Registrable Securities to be included in such Registration Statement. Such
Holders shall be responsible for any and all other out-of-pocket expenses of the
Holders of Registrable Securities incurred in connection with the registration
of the Registrable Securities.
7. INDEMNIFICATION
The Issuer agrees to indemnify and hold harmless each Holder of
Registrable Securities and each Participating Broker-Dealer selling Exchange
Securities during the Applicable Period, the officers and directors of each such
person, and each person, if any, who controls any such person within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act
(each, a "Participant"), from and against any and all losses, claims, damages
and liabilities (including, without limitation, the reasonable legal fees and
other expenses actually incurred in connection with any suit, action or
proceeding or any claim asserted) caused by any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement or
Prospectus or any preliminary prospectus, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any
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untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with information relating to any Participant
furnished to the Company in writing by such Participant expressly for use
therein; provided that the foregoing indemnity with respect to any preliminary
prospectus shall not inure to the benefit of any Participant (or to the benefit
of any person controlling such Participant) from whom the person asserting any
such losses, claims, damages or liabilities purchased Registrable Securities or
Exchange Securities if such untrue statement or omission or alleged untrue
statement or omission made in such preliminary prospectus is eliminated or
remedied in the related Prospectus (as amended or supplemented if the Issuer
shall have furnished any amendments or supplements thereto) and a copy of the
related Prospectus (as so amended or supplemented) shall not have been furnished
to such person at or prior to the sale of such Registrable Securities or
Exchange Securities, as the case may be, to such person.
Each Participant will be required to agree, severally and not jointly,
to indemnify and hold harmless the Issuer, its directors, officers, general
partners (including directors and officers of such general partners) and each
person who controls the Issuer within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Issuer to each Participant, but only with reference
to information relating to such Participant furnished to the Issuer in writing
by such Participant expressly for use in any Registration Statement or
Prospectus, any amendment or supplement thereto, or any preliminary prospectus.
The liability of any Participant under this paragraph shall in no event exceed
the proceeds received by such Participant from sales of Registrable Securities
giving rise to such obligations.
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, 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 actually incurred by such counsel related to such
proceeding, provided that the failure to so notify the Indemnifying Person shall
not relieve it of any obligation or liability which it may have hereunder or
otherwise (unless and only to the extent that such failure directly results in
the loss or compromise of any material rights or defenses). 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
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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 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 the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm for the Participants and such control persons of Participants
shall be designated in writing by Participants who sold a majority in interest
of Registrable Securities sold by all such Participants and any such separate
firm for the Issuer, its directors, officers and such control persons of the
Issuer shall be designated in writing by the Issuer. 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
non-appealable 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. Notwithstanding the foregoing sentence,
if at any time an Indemnified Person shall have requested an Indemnifying Person
to reimburse the Indemnified Person for reasonable fees and expenses actually
incurred by counsel as contemplated by the third sentence of this paragraph, the
Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such Indemnifying Person of the
aforesaid request (ii) such Indemnifying Person shall have received notice of
the terms of settlement at least 30 days prior to such settlement being entered
into, and (iii) such Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of such
settlement; provided, however, that the Indemnifying Person shall not be liable
for any settlement effected without its consent pursuant to this sentence if the
Indemnifying Party is contesting, in good faith, the request for reimbursement.
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.
If the Indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, 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 Issuer on the one hand and the
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Participants on the other 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 Issuer on the one
hand and the Participants on the other 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 Issuer or by the Participants and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The parties shall agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
(even if the Participants 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 the immediately preceding paragraph. The amount
paid or payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any reasonable
legal or other expenses actually incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall a
Participant be required to contribute any amount in excess of the amount by
which proceeds received by such Participant from sales of Registrable Securities
exceeds the amount of any damages that such Participant has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
The indemnity and contribution agreements contained in this Section 7
will be in addition to any liability which the Indemnifying Persons may
otherwise have to the Indemnified Persons referred to above.
8. RULE 144 AND RULE 144A
The Issuer covenants that it will file the reports required to be filed
by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder in a timely manner and, if at any time
the Issuer is not required to file such reports, it will, upon the request of
any Holder of Registrable Securities, make publicly available other information
so long as necessary to permit sales pursuant to Rule 144 and Rule 144A under
the Securities Act. The Issuer further covenants that it will take such further
action as any Holder of Registrable Securities may reasonably request, all to
the extent required from time to time to enable such Holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions
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provided by (a) Rule 144 and Rule 144A under the Securities Act, as such Rules
may be amended from time to time, or (b) any similar rule or regulation
hereafter adopted by the SEC.
9. UNDERWRITTEN REGISTRATIONS
If any of the Registrable Securities covered by any Shelf Registration
are to be sold in an underwritten offering, the investment banker or investment
bankers and manager or managers that will manage the offering will be selected
by the Holders of a majority in aggregate principal amount of such Registrable
Securities included in such offering and reasonably acceptable to the Issuer.
No Holder of Registrable Securities may participate in any underwritten
registration 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, (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements and (c) at least 51% of the principal amount of
outstanding Registrable Securities are included in such underwritten offering.
10. MISCELLANEOUS
(a) No Inconsistent Agreements. The Issuer has not, as of the date
hereof, entered and shall not, after the date of this Agreement, enter into any
agreement with respect to any of its securities that is inconsistent with the
rights granted to the Holders of Registrable Securities in this Agreement or
otherwise conflicts with the provisions hereof. The Issuer has not entered and
will not enter into any agreement with respect to any of its securities which
will grant to any Person piggy-back rights with respect to a Registration
Statement.
(b) Adjustments Affecting Registrable Securities. The Issuer shall not,
directly or indirectly, take any action with respect to the Registrable
Securities as a class that would adversely affect the ability of the Holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, unless the Issuer has obtained the written consent of Holders of at least
a majority of the then outstanding aggregate principal amount of Registrable
Securities. Notwithstanding the foregoing, a waiver or consent to
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depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders of Registrable Securities whose securities
are being sold pursuant to a Registration Statement and that does not directly
or indirectly affect, impair, limit or compromise the rights of other Holders of
Registrable Securities may be given by Holders of at least a majority in
aggregate principal amount of the Registrable Securities being sold by such
Holders pursuant to such Registration Statement, provided that the provisions of
this sentence may not be amended, modified or supplemented except in accordance
with the provisions of the immediately preceding sentence.
(d) Notices. All notices and other communications (including without
limitation any notices or other communications to the Trustee) provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or telecopier:
(i) if to a Holder of Registrable Securities, at the most current
address given by the Trustee to the Issuer; and
(ii) if to the Issuer, Crescent Real Estate Equities Limited
Partnership, 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxx Xxxxx, XX 00000, Attention:
Xxxxxx X. Xxxxxxx, President and Chief Executive Officer of Crescent Real Estate
Equities, Ltd.; with a copy to Shaw, Pittman, Xxxxx & Xxxxxxxxxx, 0000 X Xxxxxx,
X.X., Xxxxxxxxxx, X.X. 00000, Attention: Xxxxxx X. Xxxxxxx.
All such notices and communications shall be deemed to have been
duly given when delivered by hand, if personally delivered; five business days
after being deposited in the mail, postage prepaid, if mailed; one business day
after being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if telecopied.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the trustee under the
Indenture at the address specified in such Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
Holders of Registrable Securities who shall be deemed to have agreed to the
provisions hereof; provided, that, with respect to the indemnity and
contribution agreements in Section 7, each Holder of Registrable Securities
subsequent to the Initial Purchaser shall be bound by the terms thereof only if
such Holder elects to include Registrable Securities in a Shelf Registration;
provided, however, that this Agreement shall not inure to the benefit of or be
binding upon a successor or assign of a Holder unless and then only to the
extent such successor or assign holds Registrable Securities.
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(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 AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
(i) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(j) Entire Agreement. This Agreement, together with the Purchase
Agreement, is intended by the parties as a final expression of their agreement,
and is intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and therein.
(k) Securities Held by the Issuer or Its Affiliates. Whenever the
consent or approval of holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the Issuer or
any of its affiliates (as such term is defined in Rule 405 under the Securities
Act) shall not be counted in determining whether such consent or approval was
given by the Holders of such required percentage.
* * * * *
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
CRESCENT REAL ESTATE EQUITIES
LIMITED PARTNERSHIP
By: Crescent Real Estate Equities, Ltd.
By:
------------------------------------
Name:
Title:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
SALOMON BROTHERS INC
By: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By:
------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Director
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