EXHIBIT 4.3
Execution Copy
BANC OF AMERICA SECURITIES LLC
$65,000,000 AGGREGATE PRINCIPAL AMOUNT
THE TOWN AND COUNTRY TRUST
5.375% CONVERTIBLE SENIOR NOTES
DUE 2023
RESALE REGISTRATION RIGHTS AGREEMENT
DATED AUGUST 4, 2003
RESALE REGISTRATION RIGHTS AGREEMENT, dated as of August 4, 2003,
between THE TOWN AND COUNTRY TRUST, a real estate investment trust organized in
Maryland (together with any successor entity, herein referred to as the
"COMPANY") and Banc of America Securities LLC, as initial purchaser (the
"INITIAL PURCHASER") under the Purchase Agreement (as defined below).
Pursuant to the Purchase Agreement, dated as of July 29, 2003, between
the Company and Banc of America Securities LLC, as Initial Purchaser (the
"PURCHASE AGREEMENT"), the Initial Purchaser has agreed to purchase from the
Company $65,000,000 ($74,750,000) if the Initial Purchaser exercises its option
in full) in aggregate principal amount of 5.375% Convertible Senior Notes due
2023 (the "NOTES"). The Notes will be convertible into fully paid, nonassessable
common shares of beneficial interest, par value $.01 per share, of the Company
(the "COMMON SHARES"). The Notes will be convertible on the terms, and subject
to the conditions, set forth in the Indenture (as defined herein). To induce the
Initial Purchaser to purchase the Notes, the Company has agreed to provide the
registration rights set forth in this Agreement pursuant to Section 5(h) of the
Purchase Agreement.
The parties hereby agree as follows:
1. Definitions. Capitalized terms used in this Agreement without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following capitalized terms shall have
the following meanings:
"AFFILIATE" of any specified person means any other person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such specified person. For purposes of this definition, control of
a person means the power, direct or indirect, to direct or cause the direction
of the management and policies of such person whether by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"AGREEMENT": This Resale Registration Rights Agreement.
"AMENDED EFFECTIVENESS DEADLINE DATE" has the meaning set forth in
Section 2(e)(i) hereof.
"BUSINESS DAY": The definition of "Business Day" in the Indenture.
"COMMISSION": Securities and Exchange Commission.
"COMMON SHARES": As defined in the preamble hereto.
"COMPANY": As defined in the preamble hereto.
"EFFECTIVENESS PERIOD": As defined in Section 2(a)(iii) hereof.
"EFFECTIVENESS TARGET DATE": As defined in Section 2(a)(ii) hereof.
"EXCHANGE ACT": Securities Exchange Act of 1934, as amended.
"HOLDER": A Person who owns, beneficially or otherwise, Transfer
Restricted Securities.
"INDEMNIFIED HOLDER": As defined in Section 6(a) hereof.
"INDENTURE": The Indenture, dated as of August 4, 2003 between the
Company and The Bank of New York, as trustee (the "Trustee"), pursuant to which
the Securities are to be issued, as such Indenture may be amended, modified or
supplemented from time to time in accordance with the terms thereof.
"INITIAL PURCHASER": As defined in the preamble hereto.
"LIQUIDATED DAMAGES": As defined in Section 3(a) hereof.
"LIQUIDATED DAMAGES PAYMENT DATE": Each February 15 and August 15.
"MAJORITY OF HOLDERS": Holders holding over 50% of the aggregate
principal amount of Notes outstanding; provided that, for the purpose of this
definition, a holder of Common Shares which constitute Transfer Restricted
Securities and issued upon conversion of the Notes shall be deemed to hold an
aggregate principal amount of Notes (in addition to the principal amount of
Notes held by such holder) equal to the quotient of (x) the number of such
Common Shares held by such holder and (y) the conversion rate in effect at the
time of such conversion as determined in accordance with the Indenture.
"NASD": National Association of Securities Dealers, Inc.
"NOTES": As defined in the preamble hereto.
"NOTICE AND QUESTIONNAIRE" means a written notice executed by the
respective Holder and delivered to the Company containing substantially the
information called for by the Selling Securityholder Notice and Questionnaire
attached as Annex A to the Offering Memorandum of the Company dated July 29,
2003 relating to the Notes.
"NOTICE HOLDER" means, on any date, any Holder that has delivered a
Notice and Questionnaire to the Company on or prior to such date.
"PERSON": An individual, partnership, corporation, company,
unincorporated organization, trust, joint venture or a government or agency or
political subdivision thereof.
"PROSPECTUS": The prospectus included in a Shelf Registration
Statement, as amended or supplemented by any prospectus supplement and by all
other amendments thereto, including post-effective amendments, and all material
incorporated by reference into such prospectus.
"PURCHASE AGREEMENT": As defined in the preamble hereto.
"RECORD HOLDER": With respect to any Liquidated Damages Payment Date,
each Person who is a Holder on the February 1 or August 1, as the case may be,
immediately preceding the relevant Liquidated Damages Payment Date. In the case
of a Holder of Common Shares issued upon conversion of the Notes, "Record
Holder" shall mean each Person who is a Holder of
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Common Shares which constitute Transfer Restricted Securities on the 15th day
preceding the relevant Liquidated Damages Payment Date.
"REGISTRATION DEFAULT": As defined in Section 3(a) hereof.
"SECURITIES ACT": Securities Act of 1933, as amended.
"SHELF FILING DEADLINE": As defined in Section 2(a)(i) hereof.
"SHELF REGISTRATION STATEMENT": As defined in Section 2(a)(i) hereof.
"SPECIAL COUNSEL": A nationally recognized law firm experienced in
securities law matters designated by the Initial Purchaser or a Majority of
Holders, as the case may be.
"SUBSEQUENT SHELF REGISTRATION STATEMENT" has the meaning set forth in
Section 2(c) hereof.
"SUSPENSION NOTICE": As defined in Section 4(c) hereof.
"SUSPENSION PERIOD": As defined in Section 4(b)(i) hereof.
"TIA": Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder, in each case, as in effect on the date
the Indenture is qualified thereunder.
"TRANSFER RESTRICTED SECURITIES": Each Note and each Common Share
issued upon conversion of Notes until the earlier of:
(i) the date on which such Note or such Common Share has
been effectively registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement;
(ii) the date on which such Note or such Common Share is
transferred in compliance with Rule 144 under the Securities Act or may
be sold or transferred by a person who is not an Affiliate of the
Company pursuant to Rule 144 under the Securities Act (or any other
similar provision then in force) without any volume or manner of sale
restrictions thereunder; or
(iii) the date on which such Note or such Common Share
ceases to be outstanding (whether as a result of redemption, repurchase
and cancellation, conversion or otherwise).
"UNDERWRITTEN REGISTRATION": A registration in which Notes of the
Company are sold to an underwriter for reoffering to the public.
Unless the context otherwise requires, the singular includes the
plural, and words in the plural include the singular.
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2. Shelf Registration.
(a) The Company shall:
(i) not later than 90 days after the date hereof (the
"SHELF FILING DEADLINE"), cause to be filed a registration statement
pursuant to Rule 415 under the Securities Act (the "SHELF REGISTRATION
STATEMENT"), which Shelf Registration Statement shall provide for
resales of all Transfer Restricted Securities held by Holders that have
provided the information required pursuant to the terms of Section 2(b)
hereof;
(ii) use its reasonable efforts to cause the Shelf
Registration Statement to be declared effective by the Commission not
later than 210 days after the date hereof (the "EFFECTIVENESS TARGET
DATE"); and
(iii) use its reasonable efforts to keep the Shelf
Registration Statement continuously effective, supplemented and amended
as required by the provisions of Section 4(b) hereof to the extent
necessary to ensure that (A) it is available for resales by the Holders
of Transfer Restricted Securities entitled, subject to Section 2(b), to
the benefit of this Agreement and (B) conforms with the requirements of
this Agreement and the Securities Act and the rules and regulations of
the Commission promulgated thereunder as announced from time to time,
for a period (the "EFFECTIVENESS PERIOD") until the earliest of:
(1) two years following the last date of
original issuance of any of the Notes;
(2) the date when the Holders of Transfer
Restricted Securities who are not an Affiliate of the Company
are able to sell all such Transfer Restricted Securities
immediately without restriction pursuant to the volume
limitation provisions of Rule 144(k) under the Securities Act;
or
(3) the date when all of the Transfer Restricted
Securities of those Holders that complete and deliver in a
timely manner the Holder Questionnaire described below are
registered under the Shelf Registration Statement and disposed
of in accordance with the Shelf Registration Statement.
(4) the date when all of the Transfer Restricted
Securities have ceased to be outstanding, whether as a result
of redemption, purchase and cancellation, conversion or
otherwise.
(b) At the time the Shelf Registration Statement is declared
effective, each Holder that became a Notice Holder on or prior to the date ten
(10) Business Days prior to such time of effectiveness shall be named as a
selling securityholder in the Shelf Registration Statement and the related
Prospectus in such a manner as to permit such Holder to deliver such Prospectus
to purchasers of Transfer Restricted Securities in accordance with applicable
law. None of the Company's securityholders (other than the Holders of Transfer
Restricted Securities) shall have the right to include any of the Company's
securities in the Shelf Registration Statement.
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(c) If the Shelf Registration Statement or any Subsequent Shelf
Registration Statement ceases to be effective for any reason at any time during
the Effectiveness Period (other than because all Transfer Restricted Securities
registered thereunder shall have been resold pursuant thereto or shall have
otherwise ceased to be Transfer Restricted Securities), the Company shall use
its reasonable efforts to obtain the prompt withdrawal of any order suspending
the effectiveness thereof, and in any event shall within fifteen (15) Business
Days of such cessation of effectiveness amend the Shelf Registration Statement
in a manner reasonably expected to obtain the withdrawal of the order suspending
the effectiveness thereof, or file an additional Shelf Registration Statement
covering all of the securities that as of the date of such filing are Transfer
Restricted Securities ( a "SUBSEQUENT SHELF REGISTRATION STATEMENT"). If a
Subsequent Shelf Registration Statement is filed, the Company shall use its
reasonable efforts to cause the Subsequent Shelf Registration Statement to
become effective as promptly as is practicable after such filing and to keep
such Registration Statement (or subsequent Shelf Registration Statement)
continuously effective until the end of the Effectiveness Period.
(d) The Company shall supplement and amend the Shelf Registration
Statement if required by the rules, regulations or instructions of the
Commission applicable to the registration form used by the Company for such
Shelf Registration Statement, if required by the Securities Act or as reasonably
requested by the Initial Purchaser on the basis of the advice of Special Counsel
or by the Trustee on behalf of the Holders of the Transfer Restricted Securities
covered by such Shelf Registration Statement.
(e) Each Holder agrees that if such Holder wishes to sell Transfer
Restricted Securities pursuant to a Shelf Registration Statement and related
Prospectus, it will do so only in accordance with this Section 2(e) and Section
4(b). Each Holder wishing to sell Transfer Restricted Securities pursuant to a
Shelf Registration Statement and related Prospectus agrees to deliver a Notice
and Questionnaire to the Company at least ten (10) Business Days prior to any
intended distribution of Transfer Restricted Securities under the Shelf
Registration Statement. Each Holder who elects to sell Transfer Restricted
Securities pursuant to a Shelf Registration Statement agrees that, by submitting
a Notice and Questionnaire to the Company, it will be bound by the terms and
conditions of the Notice and Questionnaire and this Agreement. From and after
the date the Shelf Registration Statement is declared effective the Company
shall, as promptly as practicable after the date a Notice and Questionnaire is
delivered, and in any event upon the later of (x) thirty (30) days after such
date (but no earlier than thirty (30) days after effectiveness) or (y) ten (10)
Business Days after the expiration of any Suspension Period in effect when the
Notice and Questionnaire is delivered or put into effect:
(i) if required by applicable law, file with the SEC a
post-effective amendment to the Shelf Registration Statement or prepare
and, if required by applicable law, file a supplement to the related
Prospectus or a supplement or amendment to any document incorporated
therein by reference or file any other required document so that the
Holder delivering such Notice and Questionnaire is named as a selling
securityholder in the Shelf Registration Statement and the related
Prospectus in such a manner as to permit such Holder to deliver such
Prospectus to purchasers of the Transfer Restricted Securities in
accordance with applicable law and, if the Company shall file a
post-effective amendment to the Shelf Registration Statement, use its
reasonable efforts to cause such post-effective amendment to be
declared effective under the Securities Act as
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promptly as is practicable, but in any event by the date (the
"AMENDMENT EFFECTIVENESS DEADLINE DATE") that is forty-five (45) days
after the date such post effective amendment is required by this clause
to be filed:
(ii) provide such Holder copies of any documents filed
pursuant to Section 2(e)(i); and
(iii) notify such Holder as promptly as practicable after
the effectiveness under the Securities Act of any post-effective
amendment filed pursuant to Section 2(e)(i);
provided that if such Notice and Questionnaire is delivered during a Suspension
Period, the Company shall so inform the Holder delivering such Notice and
Questionnaire and shall take the actions set forth in clauses (i), (ii) and
(iii) above upon expiration of the Suspension Period in accordance with Section
4(b). Notwithstanding anything contained herein to the contrary, (i) the Company
shall be under no obligation to name any Holder that is not a Notice Holder as a
selling securityholder in any Registration Statement or related Prospectus and
(ii) the Amendment Effectiveness Deadline Date shall be extended by up to ten
(10) Business Days from the Expiration of a Suspension Period (and the Company
shall incur no obligation to pay Liquidated Damages during such extension or
during such Suspension Period) if such Suspension Period shall be in effect on
the Amendment Effectiveness Deadline Date.
(f) To the extent permitted by applicable law and the rules and
regulations of the Commission, the Shelf Registration Statement and any
Subsequent Shelf Registration Statement may be terminated with respect to the
Transfer Restricted Securities on or after the date the Effectiveness Period
expires.
3. Liquidated Damages.
(a) If:
(i) the Shelf Registration Statement is not filed with
the Commission prior to or on the Shelf Filing Deadline;
(ii) the Shelf Registration Statement has not been
declared effective by the Commission prior to or on the Effectiveness
Target Date;
(iii) the Company has failed to perform its obligations set
forth in Section 2(e) (excluding paragraphs (e)(ii) and (iii) thereof)
within the time period required therein;
(iv) any post-effective amendment to a Shelf Registration
filed pursuant to Section 2(e)(i) has not become effective under the
Securities Act on or prior to the Amendment Effectiveness Deadline
Date;
(v) except as provided in Section 4(b)(i) hereof, the
Shelf Registration Statement is filed and declared effective but,
during the Effectiveness Period, shall thereafter cease to be effective
or fail to be usable for its intended purpose without being succeeded
within 15 Business Days by a post-effective amendment to the Shelf
Registration Statement, a supplement to the Prospectus or a report
filed with the
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Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act that cures such failure and, in the case of a
post-effective amendment, is itself immediately declared effective; or
(vi) (A) prior to or on the 45th day of any Suspension
Period, such Suspension Period has not been terminated or (B)
Suspension Periods exceed an aggregate of 120 days in any 360-day
period; provided, however, the Company may extend the Suspension Period
from 45 days to 60 days in any 90-day period and from 120 days to 180
days in any 360-day period;
(each such event referred to in foregoing clauses (i) through (vi), a
"REGISTRATION DEFAULT"), the Company hereby agrees to pay interest ("LIQUIDATED
DAMAGES") with respect to the Transfer Restricted Securities from and including
the day following the Registration Default to but excluding the earlier of (1)
the day on which the Registration Default has been cured, (2) the date on which
such Transfer Restricted Securities cease to be Transfer Restricted Securities
and (3) the date the Shelf Registration Statement is no longer required to be
kept effective, accruing at a rate:
(A) in respect of the Notes, to each Holder of Notes, (x)
with respect to the first 90-day period during which a Registration
Default shall have occurred and be continuing, equal to 0.25% per annum
of the aggregate principal amount of the Notes, and (y) with respect to
the period commencing on the 91st day following the day the
Registration Default shall have occurred and be continuing, equal to
0.50% per annum of the aggregate principal amount of the Notes;
provided that in no event shall Liquidated Damages accrue at a rate per
annum exceeding 0.50% of the aggregate principal amount of the Notes;
and
(B) in respect of any Common Shares, to each Holder of
Common Shares issued upon conversion of Notes, (x) with respect to the
first 90-day period during which a Registration Default shall have
occurred and be continuing, equal to 0.25% per annum of the aggregate
principal amount of each Note converted, and (y) with respect to the
period commencing on the 91st day following the day the Registration
Default shall have occurred and be continuing, equal to 0.50% per annum
of the aggregate principal amount of each Note converted; provided that
in no event shall Liquidated Damages accrue at a rate per annum
exceeding 0.50% of the aggregate principal amount of the converted
Notes.
(b) All accrued Liquidated Damages shall be paid in arrears to
Record Holders by the Company on each Liquidated Damages Payment Date. Upon the
cure of all Registration Defaults relating to any particular Note or Common
Share, the accrual of Liquidated Damages with respect to such Note or Common
Share will cease.
All obligations of the Company set forth in this Section 3 that are
outstanding with respect to any Transfer Restricted Security at the time such
security ceases to be a Transfer Restricted Security shall survive until such
time as all such obligations with respect to such Transfer Restricted Security
shall have been satisfied in full.
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The Liquidated Damages set forth above shall be the exclusive monetary
remedy available to the Holders of Transfer Restricted Securities for each
Registration Default.
The rate of accrual of Liquidated Damages with respect to any period
shall not exceed the rate provided for in Section 3(a) notwithstanding the
occurrence of multiple Registration Defaults.
4. Registration Procedures.
(a) In connection with the Shelf Registration Statement, the
Company shall comply with all the provisions of Section 4(b) hereof and shall
use its reasonable efforts to effect a registration to permit the sale of the
Transfer Restricted Securities, and pursuant thereto, shall as expeditiously as
possible prepare and file with the Commission a Shelf Registration Statement
relating to such registration on any appropriate form under the Securities Act.
(b) In connection with the Shelf Registration Statement and any
Prospectus required by this Agreement to permit the sale or resale of Transfer
Restricted Securities, the Company shall:
(i) Subject to any notice by the Company in accordance
with this Section 4(b) of the existence of any fact or event of the
kind described in Section 4(b)(iii)(D), use its reasonable efforts to
keep the Shelf Registration Statement continuously effective during the
Effectiveness Period; upon the occurrence of any event that would cause
the Shelf Registration Statement or the Prospectus contained therein
(A) to contain a material misstatement or omission or (B) not to be
effective and usable for resale of Transfer Restricted Securities
during the Effectiveness Period, the Company shall file promptly an
appropriate amendment to the Shelf Registration Statement, a supplement
to the Prospectus or a report filed with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, in the case of
clause (A), correcting any such misstatement or omission, and, in the
case of either clause (A) or (B), use its reasonable efforts to cause
such amendment to be declared effective and the Shelf Registration
Statement and the related Prospectus to become usable for their
intended purposes as soon as practicable thereafter. Notwithstanding
the foregoing, the Company may suspend the effectiveness of the Shelf
Registration Statement by written notice to the Holders for a period
not to exceed an aggregate of 45 days in any 90-day period (each such
period, a "SUSPENSION PERIOD"), and not to exceed an aggregate of 120
days in any 360-day period, if:
(x) an event occurs and is continuing as a
result of which the Shelf Registration Statement, the
Prospectus, any amendment or supplement thereto, or any
document incorporated by reference therein would, in the
Company's judgment, contain an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, with
respect to the Prospectus or any amendment or supplement
thereto, in the light of the circumstances under which they
were made, not misleading; and
(y) the Company determines in good faith that
the disclosure of such event at such time would adversely
affect the Company and its subsidiaries;
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provided that, in the event the disclosure relates to a
previously undisclosed proposed or pending acquisition,
financing, recapitalization, business combination or other
material business transaction, the disclosure of which the
Company determines in good faith would be reasonably likely to
adversely affect the Company's ability to consummate such
transaction, the Company may extend a Suspension Period from
45 days to 60 days in any 90-day period and from 120 days to
180 days in any 360-day period; provided, however, that
Suspension Periods shall not exceed an aggregate of 120 days
or 180 days, as the case may be, in any 360-day period. The
Company shall not be required to specify in the written notice
to the Holders the nature of the event giving rise to the
Suspension Period.
(ii) Prepare and file with the Commission such amendments
and post-effective amendments to the Shelf Registration Statement as
may be necessary to keep the Shelf Registration Statement effective
during the Effectiveness Period; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Securities Act,
and to comply fully with the applicable provisions of Rules 424 and
430A under the Securities Act in a timely manner; and comply with the
provisions of the Securities Act with respect to the disposition of all
Notes and Common Shares covered by the Shelf Registration Statement
during the applicable period in accordance with the intended method or
methods of distribution by the sellers thereof set forth in the Shelf
Registration Statement or supplement to the Prospectus.
(iii) Advise the selling Holders promptly and, if requested
by such selling Holders, to confirm such advice in writing, except as
provided in clause (D) below:
(A) when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and,
with respect to the Shelf Registration Statement or any
post-effective amendment thereto, when the same has become
effective,
(B) of any request by the Commission for
amendments to the Shelf Registration Statement or amendments
or supplements to the Prospectus or for additional information
relating thereto,
(C) of the issuance by the Commission of any
stop order suspending the effectiveness of the Shelf
Registration Statement under the Securities Act or of the
suspension by any state securities commission of the
qualification of the Transfer Restricted Securities for
offering or sale in any jurisdiction, or the initiation of any
proceeding for any of the preceding purposes, or
(D) of the existence of any fact or the
happening of any event, during the Effectiveness Period, that
makes any statement of a material fact made in the Shelf
Registration Statement, the Prospectus, any amendment or
supplement thereto, or any document incorporated by reference
therein untrue, or that requires the making of any additions
to or changes in the Shelf Registration Statement or the
Prospectus in order to make the statements therein, with
respect to the
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Prospectus or any amendment or supplement thereto, in the
light of the circumstances under which they were made, not
misleading.
If at any time the Commission shall issue any stop order suspending the
effectiveness of the Shelf Registration Statement, or any state
securities commission or other regulatory authority shall issue an
order suspending the qualification or exemption from qualification of
the Transfer Restricted Securities under state securities or Blue Sky
laws, the Company shall use its reasonable efforts to obtain the
withdrawal or lifting of such order at the earliest possible time and
will provide to each Holder who is named in the Shelf Registration
Statement prompt notice of the withdrawal of any such order.
(iv) Make available at reasonable times and during normal
business hours for inspection by one or more representatives of the
selling Holders, designated in writing by a Majority of Holders whose
Transfer Restricted Securities are included in the Shelf Registration
Statement, and the Special Counsel retained by such selling Holders,
all financial and other records, pertinent corporate documents and
properties of the Company as shall be reasonably necessary to enable
them to conduct a reasonable investigation within the meaning of
Section 11 of the Securities Act, and cause the Company's officers,
trustees and employees to supply all information reasonably requested
by any such representative or representatives of the selling Holders,
attorney or accountant in connection therewith; provided, however, that
the Company shall have no obligation to deliver information to any
selling Holder or representative pursuant to this Section 4(b)(iv)
unless such selling Holder or representative shall have executed and
delivered a confidentiality agreement in a form acceptable to the
Company relating to such information.
(v) If requested by any selling Holders, promptly
incorporate in the Shelf Registration Statement or Prospectus, pursuant
to a supplement or post-effective amendment if necessary, such
information as such selling Holders may reasonably request to have
included therein, including, without limitation, information relating
to the "PLAN OF DISTRIBUTION" of the Transfer Restricted Securities.
(vi) Furnish to each selling Holder upon its request,
without charge, at least one copy of the Shelf Registration Statement,
as first filed with the Commission, and of each amendment thereto (and
any documents incorporated by reference therein or exhibits thereto (or
exhibits incorporated in such exhibits by reference) as such Person may
request to the extent such document or exhibit is not available through
the Commission's ▇▇▇▇▇ system).
(vii) Deliver to each selling Holder, without charge, as
many copies of the Prospectus (including each preliminary Prospectus)
and any amendment or supplement thereto as such Persons reasonably may
request; subject to any notice by the Company in accordance with this
Section 4(b) of the existence of any fact or event of the kind
described in Section 4(b)(iii)(D), the Company hereby consents to the
use of the Prospectus and any amendment or supplement thereto by each
of the selling Holders in connection with the offering and sale of the
Transfer Restricted Securities covered by the Prospectus or any
amendment or supplement thereto.
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(viii) Before any public offering of Transfer Restricted
Securities, cooperate with the selling Holders and their counsel in
connection with the registration and qualification of the Transfer
Restricted Securities under the securities or Blue Sky laws of such
jurisdictions in the United States as the selling Holders may
reasonably request and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the
Transfer Restricted Securities covered by the Shelf Registration
Statement; provided, however, that the Company shall not be required
(A) to register or qualify as a foreign corporation or a dealer of
securities where it is not now so qualified or to take any action that
would subject it to the service of process in any jurisdiction where it
is not now so subject or (B) to subject itself to general or unlimited
service of process or to taxation in any such jurisdiction if it is not
now so subject.
(ix) Cooperate with the selling Holders to facilitate the
timely preparation and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any restrictive
legends (unless required by applicable securities laws); and use its
reasonable efforts to enable such Transfer Restricted Securities to be
in such denominations and registered in such names as the Holders may
request at least two Business Days before any sale of Transfer
Restricted Securities.
(x) Use its reasonable efforts to cause the Transfer
Restricted Securities covered by the Shelf Registration Statement to be
registered with or approved by such other governmental agencies or
authorities in the United States as may be necessary to enable the
seller or sellers thereof to consummate the disposition of such
Transfer Restricted Securities.
(xi) Subject to Section 4(b)(i) hereof, if any fact or
event contemplated by Section 4(b)(iii)(D) hereof shall exist or have
occurred, use its reasonable efforts to prepare a supplement or
post-effective amendment to the Shelf Registration Statement or related
Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the
purchasers of Transfer Restricted Securities, the Prospectus will not
contain an 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 light of the circumstances in which they are
made, not misleading.
(xii) Provide CUSIP numbers for all Transfer Restricted
Securities not later than the effective date of the Shelf Registration
Statement and provide the Trustee under the Indenture with certificates
for the Notes that are in a form eligible for deposit with The
Depository Trust Company or its nominee.
(xiii) Use its reasonable efforts to cooperate and assist in
any filings required to be made with the NASD.
(xiv) Otherwise use its reasonable efforts to comply with
all applicable rules and regulations of the Commission and all
reporting requirements under the rules and regulations of the Exchange
Act.
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(xv) Cause the Indenture to be qualified under the TIA not
later than the effective date of the Shelf Registration Statement
required by this Agreement, and, in connection therewith, cooperate
with the Trustee and the holders of Notes to effect such changes to the
Indenture as may be required for such Indenture to be so qualified in
accordance with the terms of the TIA; and execute and use its
reasonable efforts to cause the Trustee thereunder to execute all
documents that may be required to effect such changes and all other
forms and documents required to be filed with the Commission to enable
such Indenture to be so qualified in a timely manner.
(xvi) Cause all Common Shares covered by the Shelf
Registration Statement to be listed or quoted, as the case may be, on
each securities exchange or automated quotation system on which Common
Shares are then listed or quoted.
(xvii) Provide to each Holder upon written request a copy of
each document filed with the Commission pursuant to the requirements of
Section 13 and Section 15 of the Exchange Act after the effective date
of the Shelf Registration Statement, unless such document is available
through the Commission's ▇▇▇▇▇ system.
(c) Each Holder agrees by acquisition of a Transfer Restricted
Security that, upon receipt of any notice (a "SUSPENSION NOTICE") from the
Company of the existence of any fact of the kind described in Section
4(b)(iii)(D) hereof, such Holder will forthwith discontinue disposition of
Transfer Restricted Securities pursuant to the Shelf Registration Statement or
distribution of the Prospectus until:
(i) such Holder has received copies of the supplemented
or amended Prospectus contemplated by Section 4(b)(xi) hereof; or
(ii) such ▇▇▇▇▇▇ is advised in writing by the Company that
the use of the Prospectus may be resumed, and has received copies of
any additional or supplemental filings that are incorporated by
reference in the Prospectus unless such filings are available through
the Commission's ▇▇▇▇▇ system.
If so directed by the Company, each Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
▇▇▇▇▇▇'s possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such notice of suspension.
(d) Each Holder agrees, by acquisition of a Transfer Restricted
Security, that no Holder shall be entitled to sell any of such Transfer
Restricted Securities pursuant to a Registration Statement or to receive a
Prospectus relating thereto, unless such Holder has furnished the Company with a
Notice and Questionnaire as required pursuant to Section 2(e) hereof (including
the information required to be included in such Notice and Questionnaire) and
the information set forth in the next sentence. Each Notice ▇▇▇▇▇▇ agrees
promptly to furnish to the Company in writing all information required to be
disclosed in order to make the information previously furnished to the Company
by such Notice Holder not misleading and any other information regarding such
Notice Holder and the distribution of such Transfer Restricted Securities as the
Company may from time to time reasonably request in writing. Any sale of any
12
Transfer Restricted Securities by any Holder shall constitute a representation
and warranty by such Holder to the Company that the information relating to such
Holder and its plan of distribution is as set forth in the Prospectus delivered
by such Holder in connection with such disposition, that such Prospectus does
not as of the time of such sale contain any untrue statement of a material fact
relating to or provided by such Holder or relating to its plan of distribution
and that such Prospectus does not as of the time of such sale omit to state any
material fact relating to or provided by such Holder or relating to its plan of
distribution necessary to make the statements in such Prospectus, in the light
of the circumstances under which they were made not misleading.
5. Registration Expenses.
All expenses incident to the Company's performance of or compliance
with this Agreement shall be borne by the Company regardless of whether a Shelf
Registration Statement becomes effective, including, without limitation:
(i) all registration and filing fees and expenses
(including filings made with the NASD);
(ii) all fees and expenses of compliance with federal
securities and state Blue Sky or securities laws;
(iii) all expenses of printing (including printing of
Prospectuses and certificates for the Common Shares to be issued upon
conversion of the Notes) and the Company's expenses for messenger and
delivery services and telephone;
(iv) all fees and disbursements of counsel to the Company;
(v) all application and filing fees in connection with
listing (or authorizing for quotation) the Common Shares on a national
securities exchange or automated quotation system pursuant to the
requirements hereof; and
(vi) all fees and disbursements of independent certified
public accountants of the Company.
The Company shall bear its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal, accounting or other duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company.
6. Indemnification And Contribution.
(a) The Company agrees to indemnify and hold harmless each Holder
of Transfer Restricted Securities covered by any Shelf Registration Statement,
its directors, officers and each person, if any, who controls any such Holder
within the meaning of the Securities Act or the Exchange Act (each, an
"INDEMNIFIED HOLDER"), against any loss, claim, damage, liability or expense,
joint or several, or any action in respect thereof (including, but not limited
to, any loss, claim, damage, liability or action relating to resales of the
Transfer Restricted Securities), to
13
which such Indemnified Holder may become subject, insofar as any such loss,
claim, damage, liability or action arises out of, or is based upon:
(i) any untrue statement or alleged untrue statement of a
material fact contained in the Shelf Registration Statement as
originally filed or in any amendment thereof, in any Prospectus, or in
any amendment or supplement thereto; or
(ii) the omission or alleged omission to state therein 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 agrees to reimburse each Indemnified Holder promptly upon demand for any
legal or other expenses reasonably incurred by such Indemnified Holder in
connection with investigating, defending, settling, compromising or paying any
such loss, claim, damage, liability, expense or action; provided, however, that
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or expense arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with written information furnished to
the Company by or on behalf of such Holder (or its related Indemnified Holder)
specifically for use therein. The foregoing indemnity agreement is in addition
to any liability which the Company may otherwise have.
(b) Each Holder, severally and not jointly, agrees to indemnify
and hold harmless the Company, its trustees, officers and each person, if any,
who controls the Company within the meaning of the Securities Act or the
Exchange Act to the same extent as the foregoing indemnity from the Company to
each such Holder, but only with reference to written information relating to
such Holder furnished to the Company by or on behalf of such Holder specifically
for inclusion in the documents referred to in the foregoing indemnity. For the
avoidance of doubt, the information contained in any Notice and Questionnaire
and any other written information relating to such Holder furnished to the
Company by or on behalf of such Holder shall be deemed the only information
furnished by any such Holder specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement set forth in
this Section shall be in addition to any liabilities which any such Holder may
otherwise have. In no event shall any Holder, its directors, officers or any
person who controls such Holder be liable or responsible for any amount in
excess of the amount by which the total amount received by such Holder with
respect to its sale of Transfer Restricted Securities pursuant to a Shelf
Registration Statement exceeds the amount of any damages that such Holder, its
directors, officers or any person who controls such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 6, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 6 except to the extent it has
been materially prejudiced by such failure and, provided, further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this
14
Section 6. If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying party shall not be
liable to the indemnified party under this Section 6 for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided, however,
that the Holders shall have the right to employ a single counsel to represent
jointly the Holders and their officers, employees and controlling persons who
may be subject to liability arising out of any claim in respect of which
indemnity may be sought by the Holders against the Company under this Section 6
if the Holders seeking indemnification shall have been advised by legal counsel
that there may be one or more legal defenses available to such Holders and their
respective officers, employees and controlling persons that are different from
or additional to those available to the Company, and in that event, the fees and
expenses of such separate counsel shall be paid by the Company. No indemnifying
party shall:
(i) without the prior written consent of the indemnified
parties (which consent shall not be unreasonably withheld) settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action), unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding, or
(ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if
there be a final judgment for the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of
such settlement or judgment.
(d) The indemnifying party under this Section shall not be liable
for any settlement of any proceeding effected without its written consent, which
shall not be withheld unreasonably, but if settled with such consent or if there
is a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party against any loss, claim, damage, liability or
expense by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by Section 6(c) hereof, the indemnifying party 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 party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement, compromise or consent to the entry of judgment in any pending or
threatened action, suit or proceeding in respect of which any indemnified party
is or could have been a party and indemnity was or could have been sought
hereunder by such indemnified party,
15
unless such settlement, compromise or consent (x) includes an unconditional
release of such indemnified party from all liability on claims that are the
subject matter of such action, suit or proceeding and (y) does not include a
statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 6 shall
for any reason be unavailable or insufficient to hold harmless an indemnified
party under Section 6(a) or 6(b) in respect of any loss, claim, damage or
liability (or action in respect thereof) referred to therein, each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability (or action in respect thereof):
(i) in such proportion as is appropriate to reflect the
relative benefits received by the Company from the offering and sale of
the Transfer Restricted Securities on the one hand and a Holder with
respect to the sale by such Holder of the Transfer Restricted
Securities on the other, or
(ii) if the allocation provided by Section (6)(d)(i) is
not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in Section
6(d)(i) but also the relative fault of the Company on the one hand and
the Holders on the other in connection with the statements or omissions
or alleged statements or alleged omissions that resulted in such loss,
claim, damage or liability (or action in respect thereof), as well as
any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and a Holder on
the other with respect to such offering and such sale shall be deemed to be in
the same proportion as the total net proceeds from the offering of the Notes
purchased under the Purchase Agreement (before deducting expenses) received by
the Company, on the one hand, bear to the total proceeds received by such Holder
with respect to its sale of Transfer Restricted Securities on the other. The
relative fault of the parties shall be determined by reference to 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 the Holders on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and each Holder agree that it would not
be just and equitable if the amount of contribution pursuant to this Section
6(d) were determined by pro rata allocation or by any other method of allocation
that does not take into account the equitable considerations referred to in the
first sentence of this paragraph (d).
The amount paid or payable by an indemnified party as a result of the
loss, claim, damage or liability, or action in respect thereof, referred to
above in this Section 6 shall be deemed to include, for purposes of this Section
6, any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such
action or claim.
Notwithstanding the provisions of this Section 6, no Holder shall be
required to contribute any amount in excess of the amount by which the total
price at which the Transfer Restricted Securities purchased by it were resold
exceeds the amount of any damages which such
16
Holder has otherwise been required to pay by reason of any 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 Holders' obligations to contribute as provided
in this Section 6(d) are several and not joint.
(f) The provisions of this Section 6 shall remain in full force
and effect, regardless of any investigation made by or on behalf of any Holder
or the Company or any of the officers, trustees, directors or controlling
persons referred to in Section 6 hereof, and will survive the sale by a Holder
of Transfer Restricted Securities.
7. Rule 144A and Rule 144. The Company agrees with each Holder,
for so long as any Transfer Restricted Securities remain outstanding and during
any period in which the Company (i) is not subject to Section 13 or 15(d) of the
Exchange Act, to make available, upon request of any Holder, to such Holder or
beneficial owner of Transfer Restricted Securities in connection with any sale
thereof and any prospective purchaser of such Transfer Restricted Securities
designated by such Holder or beneficial owner, the information required by Rule
144A(d)(4) under the Securities Act in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144A, and (ii) is subject to Section 13
or 15 (d) of the Exchange Act, to make all filings required thereby in a timely
manner in order to permit resales of such Transfer Restricted Securities
pursuant to Rule 144.
8. No Participation In Underwritten Registrations. No Holder may
participate in any Underwritten Registration hereunder.
9. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees that any failure
by the Company to comply with its obligations under Section 2 hereof may result
in material irreparable injury to the Initial Purchaser or the Holders for which
there is no adequate remedy at law, that it will not be possible to measure
damages for such injuries precisely, and that, in the event of any such failure,
the Initial Purchaser or any Holder may obtain such relief as may be required to
specifically enforce the Company's obligations under Section 2 hereof. The
Company further agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) Actions Affecting Transfer Restricted Securities. The Company
shall not, directly or indirectly, take any action with respect to the Transfer
Restricted Securities as a class that would adversely affect the ability of the
Holders of Transfer Restricted Securities to include such Transfer Restricted
Securities in a registration undertaken pursuant to this Agreement, except as
provided by the Indenture and this Agreement.
(c) No Inconsistent Agreements. The Company has not, as of the
date hereof, entered into, nor shall it, on or after the date hereof, enter
into, any agreement with respect to its securities that is inconsistent with the
rights granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof. In addition, the Company shall not grant to any of its
securityholders (other than the Holders of Transfer Restricted Securities in
such capacity)
17
the right to include any of its securities in the Shelf Registration Statement
provided for in this Agreement other than the Transfer Restricted Securities.
(d) Amendments and Waivers. This Agreement may not be amended,
modified or supplemented, and waivers or consents to or departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of a Majority of Holders; provided, however, that with respect to any
matter that directly or indirectly adversely affects the rights of the Initial
Purchaser hereunder, the Company shall obtain the written consent of the Initial
Purchaser. Notwithstanding the foregoing (except the foregoing proviso), a
waiver or consent to depart from the provisions hereof, with respect to a
matter, which relates exclusively to the rights of Holders whose securities are
being sold pursuant to a Shelf Registration Statement and does not directly or
indirectly adversely affect the rights of other Holders, may be given by a
Majority of Holders, determined on the basis of Notes being sold rather than
registered under such Shelf Registration Statement.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first class mail
(registered or certified, return receipt requested), facsimile transmission, or
air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the
records of the registrar under the Indenture or the transfer agent of
the Common Shares, as the case may be; and
(ii) if to the Company, initially at its address set forth
in the Purchase Agreement,
with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
Four Times Square
New York, New York 10036
and with a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if transmitted by facsimile; and on the next Business Day, if
timely delivered to an air courier guaranteeing overnight delivery.
Any party hereto may change the address for receipt of communications
by giving written notice to the other party hereto.
18
(f) 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 Transfer Restricted Securities. The Company
hereby agrees to extend the benefit of this Agreement to any Holder and any such
Holder may specifically enforce the provisions of this Agreement as if an
original party hereto.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Notes Held by the Company or Their Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Transfer Restricted
Securities is required hereunder, Transfer Restricted Securities held by the
Company or its Affiliates (other than subsequent Holders if such subsequent
Holders are deemed to be Affiliates solely by reason of their holding of such
Notes) shall not be counted in determining whether such consent or approval was
given by the Holders of such required percentage.
(i) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(j) Governing Law. This Agreement shall be governed by and
construed in accordance with the law of the State of New York.
(k) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby, it being intended that all of
the rights and privileges of the parties shall be enforceable to the fullest
extent permitted by law.
(l) Entire Agreement. This 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. Except as provided in the
Purchase Agreement, the Indenture and the Notes, there are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Company with
respect to the Transfer Restricted Securities. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
(m) Termination. This Agreement and the obligations of the parties
hereunder shall terminate upon the end of the Effectiveness Period, except for
any liabilities or obligations under Section 4(c), 4(d), 5 or 6 hereof and the
obligations to make payments of and provide for Liquidated Damages under Section
3(a) hereof to the extent such damages accrue prior to the end of the
Effectiveness Period, each of which shall remain in effect in accordance with
its terms.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
THE TOWN AND COUNTRY TRUST
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Chief
Financial Officer
BANC OF AMERICA SECURITIES LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
20
