EXHIBIT (10) (v)
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made
and entered into as of October 10, 1997, between Banyan Strategic Realty
Trust, a Massachusetts business trust (together with all of its successors,
by merger or otherwise, the "Company"), and the purchasers listed on the
signature pages hereto (the "Purchasers"; individually referred to as a
"Purchaser").
RECITALS
WHEREAS, the Company has entered into a Share Purchase
Agreement, dated as of October 10, 1997 (the "Share Purchase Agreement";
all capitalized terms used herein and not otherwise defined shall have the
meanings given to such terms in the Share Purchase Agreement), by and among
the Company and the Purchasers;
WHEREAS, the Purchasers are or will be holders of the Company's
convertible notes (issued pursuant to a Convertible Term Loan Agreement
dated as of October 10, 1997, the "Term Loan Agreement") which according to
the terms thereof may be converted into Series A Convertible Preferred
Shares, to be created by the Company in connection with the Amendment to
Declaration of Trust (as such term is defined in the Term Loan Agreement),
which shares are in turn, convertible into Common Shares. (Such Series A
Convertible Preferred Shares and Common Shares being referred to
collectively as the "New Shares").
WHEREAS, pursuant to the Share Purchase Agreement the Company
has agreed to issue to the Purchasers on the Closing Date 2,192,501 shares
of Beneficial Interests, no par value, of the Company (the "Initial Shares"
and, together with the New Shares, the "Purchased Shares");
WHEREAS, the Purchased Shares have not been registered under
the Securities Act and are subject to restrictions on resale or other
disposition;
WHEREAS, the Company desires to grant on behalf of itself and
all successors, and the Purchasers desire to accept, the registration
rights set forth in this Agreement in respect of the Registrable Shares, as
defined herein; and
WHEREAS, execution and delivery of this Agreement by the
parties hereto is a condition precedent to the closing of the Share
Purchase Agreement.
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AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises
contained herein and intending to be legally bound the parties agree as
follows:
SECTION 1. DEFINITIONS.
As used in this Agreement, the following terms shall have the
following respective meanings:
"Holder" means the Purchasers and any transferee or assignee as
permitted under Section 7 hereof.
"Registrable Shares" means the Purchased Shares issued to the
Holders, including any securities issued in respect thereof pursuant to a
stock dividend, stock split, recapitalization or similar event. As to any
particular Registrable Shares, once issued such securities shall cease to
be Registrable Shares when (A) a registration statement with respect to the
sale of such securities shall have become effective under the Securities
Act and such securities shall have been disposed of in accordance with such
registration statement, or (B) such securities shall have been sold in
accordance with Rule 144 (or any successor provision) under the Securities
Act.
The terms "register," "registered" and "registration" refer to
the preparation and filing with the SEC of a registration statement or
similar document in compliance with the Securities Act and the declaration
or ordering of the effectiveness of such registration statement or
document.
"Registration Expenses" means all expenses, except Selling
Expenses, incurred by the Company and the Holders while complying with
Section 2 of this Agreement. Registration Expenses shall include, without
limitation, all registration and filing fees and other qualification fees,
blue sky fees, printing expenses and fees and disbursements of the
Company's and the Holders' accountants and legal counsel incurred in any
registration pursuant to Section 2.
"SEC" means the United States Securities and Exchange
Commission or any successor agency.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, and any successor statute.
"Selling Expenses" means all underwriting discounts, selling
commissions and stock transfer taxes relating to any Holder's registered
securities.
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SECTION 2. REGISTRATION.
(a) PIGGYBANK REGISTRATION STATEMENT. If the Company
proposes to register any equity securities (or securities convertible into
or exchangeable for equity securities), whether or not for sale for its own
account (other than a registration relating to the sale of securities to
participants in a dividend reinvestment plan, a registration on Form S-4
relating to a business combination or similar transaction permitted to be
registered on such Form S-4, a registration on Form S-8 relating to the
sale of securities to participants in a stock or employee benefit plan and
registrations pursuant to Section 2(b) of this Agreement) the Company will
give written notice to all Holders of the Company's intention to effect
such a registration and include in such registration all Registrable Shares
with respect to which the Company has received written notice from a Holder
for inclusion therein within 30 days after the date of the Company's notice
(in such capacity such Holder a "Requesting Holder"); PROVIDED, HOWEVER,
that:
(i) if, at any time after giving written notice of its
intention to register any securities and, prior to the effective date of
the Registration Statement filed in connection with such registration, the
Company shall determine for any reason not to register such securities, the
Company may, at its election, give written notice of such determination to
each Holder requesting inclusion therein, and, thereupon, the Company shall
be relieved of its obligation to register any Registrable Shares in
connection with such withdrawn or unfiled registration (but not of its
obligation to pay the Registration Expenses in connection therewith
pursuant to Section 3 hereto); and
(ii) if such registration shall be in connection with an
underwritten public offering and the underwriter or managing underwriter,
as the case may be, shall advise the Company that in its opinion the number
of shares requested to be included in such registration or offering exceeds
the number of such securities which can be sold in such offering, the
amount to be registered shall be allocated pro rata among the Company and
among the Requesting Holders desiring to participate in such registration
and the other holders of the Company's securities requested to be included
in such registration, based on the numbers of shares initially proposed to
be included by the Company and/or such holders; PROVIDED, HOWEVER, that if
such underwritten public offering is (x) the first to occur after the date
hereof and (y) completed prior to March 31, 1999, then the amount to be
registered shall be allocated first to the Company, second pro rata among
the Requesting Holders desiring to participate in such registration, based
on the numbers of shares initially proposed to be included by such
Requesting Holders, and then pro rata among the other holders of the
Company's securities requested to be included in such registration, based
on the numbers of shares initially proposed to be included by such holders;
and
(iii) if any registration pursuant to this Section 2(a) is an
underwritten public offering:
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(A) the Requesting Holders shall not have the right to
select the managing underwriter to administer such offering; and
(B) the Requesting Holders agree to enter into customary
agreements (including, if requested, an underwriting agreement), and take
such other customary actions in connection therewith as the Company or the
underwriter(s) shall reasonably request in order to consummate such
registration.
(b) DEMAND REGISTRATION STATEMENT. The Holder(s) of
Registrable Shares having an estimated offering price of $2.5 million or
more (the "Requisite Holders") may at any time, by delivery of written
notice to the Company, request that the Company register the offer and sale
of all or a portion of the Registrable Shares held by such Holders under
the Securities Act and register or qualify under applicable securities
laws, and, subject to the provisions of this Agreement, the Company shall
effect such demand registration promptly; PROVIDED, HOWEVER, that the
Company shall have no obligation under this Section 2(b) if the sale of the
Registrable Shares by the Holders is then covered under any other
registration statement (including, pursuant to Section 2(a) hereof) that
includes such shares on a continuing basis.
Each notice to the Company delivered pursuant to the preceding
paragraph shall set forth (i) the names of the Requisite Holders requesting
registration ("Demanding Holders") and the number of shares to be sold by
each and (ii) the proposed manner of sale. Within ten (10) days after
receipt of notice from the Demanding Holders, the Company shall notify all
Holders who are not Demanding Holders and offer to them the opportunity to
include their shares in such registration. Each such Holder shall have 20
days following delivery of such notice to elect, by notice to the Company,
to have such Holder's Registrable Shares included in such registration.
The maximum number of such demands under this Section 2(b) shall be two
(2). A demand registration will not count as a demand registration
hereunder unless it is declared effective by the SEC and remains effective
for at least ninety (90) days or such shorter period which shall terminate
when all of the Registrable Shares covered by such demand registration have
been sold pursuant to such demand registration; PROVIDED, HOWEVER, that in
the event a registration statement is withdrawn at the request of the
Demanding Holders, such Demanding Holders will forfeit the demand
registration rights granted pursuant to this Section 2(b). These rights
are in addition to, and shall not limit, the registration rights of the
Holders of Registrable Shares granted pursuant to Section 2(a) hereunder.
Except as expressly provided in this Section 2(b), no holder of Company
securities shall be entitled to participate in a registration under this
Section 2(b).
If the managing underwriter of an underwritten offering under
this Section 2(b) advises the Company in writing that in its opinion the
number of shares requested to be included in such registration exceeds the
number which can be sold in such offering, the Company will include in such
registration only the number of shares which in the opinion of such
underwriter can be sold. If the number of shares which can be
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sold is less than the number of shares proposed to be registered, the
amount to be so registered shall be allocated pro rata among the Holders of
Registrable Shares desiring to participate in such registration.
If any of the Registrable Shares covered by a demand
registration are to be sold in an underwritten offering, the Demanding
Holders shall have the right to select the managing underwriter(s) to
administer the offering, subject to the approval of the Holders of a
majority in interest of the Registrable Shares to be included therein,
which approvals shall not be unreasonably withheld.
(c) NOTICE OF EFFECTIVENESS. Upon declaration of
effectiveness by the SEC of a registration statement filed pursuant to this
Agreement, the Company shall give written notice thereof to each Holder
whose Registrable Shares are included in such registration statement.
(d) BLACKOUT PERIODS. Following the effective date of any
registration statement filed pursuant to this Section 2, the Company shall
be entitled, from time to time, to notify the Holders to discontinue offers
or sales of securities pursuant to such registration statement for
Registrable Shares for the period of time stated in such notice, up to a
maximum of one hundred eighty (180) consecutive days (such notice being a
"Blackout Notice"), if the Company determines, in its reasonable business
judgment, that the disclosure required in connection with such offers and
sales would materially damage the prospects for successfully completing an
acquisition, corporate reorganization, securities offering or other
voluntary transaction undertaken by the Company (which the Company would
not be required to disclose at such time other than in connection with the
Purchasers' registration statement) that is material to the Company and its
subsidiaries taken as a whole. Such notice shall be signed by an
authorized officer of the Company and shall certify such determination.
Each Holder agrees that upon receipt of a Blackout Notice such Holder shall
discontinue offers or sales of Registrable Shares pursuant to any such
registration statement for the period of time stated in the Blackout Notice
(up to a maximum of one hundred eighty (180) consecutive days) and the time
period set forth in subsection 2(e) shall be tolled during such period.
The Company shall not cause more than 180 days within any period of 360
consecutive days to be subjected to Blackout Notices and shall use its best
commercially reasonable efforts to minimize the period of time subjected to
Blackout Notices.
(e) EFFECTIVENESS OF REGISTRATION STATEMENTS. the Company
shall cause any registration statement filed pursuant to this Section 2 to
remain effective for at least ninety (90) days after it is declared or
ordered effective or until the Holders have completed the distribution
described therein, whichever first occurs.
SECTION 3. EXPENSES OF REGISTRATION.
The Company shall bear the Registration Expenses arising out of
all registrations hereunder; PROVIDED, HOWEVER, that all Selling Expenses
relating to the
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securities of any Holder whose Purchased Shares are included in such
registration (the "Participating Holder") shall be borne by the
Participating Holder and the Company shall have no liability therefor.
SECTION 4. REGISTRATION PROCEDURES.
For each registration, qualification or compliance carried out
by the Company pursuant to this Agreement, the Company shall give each
Holder written notice of the initiation of such registration, qualification
or compliance and the Company will:
(a) provide to each Holder participating in such registration
a reasonable number of copies, without charge, of the registration
statement, preliminary prospectus, final prospectus and any other documents
as may reasonably be necessary to facilitate a public offering;
(b) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such
registration statement during the effectiveness of such registration
statement;
(c) use its best efforts to register or qualify all
securities covered by such registration statement under such securities or
blue sky laws of such jurisdiction as each Holder shall reasonably request,
except that the Company shall not for any such purpose be required to
qualify generally to do business as a foreign corporation in any
jurisdiction wherein it is not so qualified, or to subject itself to
taxation in any such jurisdiction or to consent generally to service of
process in any such jurisdiction; and
(d) immediately notify each Holder of Purchased Shares
covered by such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of
the happening of any event as a result of which the prospectus included in
such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing, and at the request
of any such Holder prepare and furnish to such Holder a reasonable number
of copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such
Purchased Shares, such prospectus shall not include 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 not misleading in light
of the circumstances then existing.
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SECTION 5. INFORMATION BY HOLDER.
Each Holder of Registrable Shares participating in any
registration shall provide the Company, when requested, with written
information regarding itself, its ownership of securities of the Company,
the distribution proposed by such Holder and such other information as may
be legally required in connection with such registration. Such writing
shall expressly state that it is being furnished to the Company for use in
the preparation of a registration statement, preliminary prospectus,
supplementary prospectus, final prospectus or amendment or supplement
thereto, as the case may be. Each Holder agrees, by its acceptance of the
benefits provided to it hereunder, to furnish promptly to the Company all
information required to be disclosed in order to make any previously
furnished information not misleading.
SECTION 6. INDEMNIFICATION.
(a) The Company will indemnify each Holder of Purchased
Shares covered by any such registration statement, its officers, directors
and partners and each person who controls such Holder within the meaning of
Section 15 of the Securities Act against all expenses, claims, losses,
damages and liabilities (or actions in respect thereof), including without
limitation any of the foregoing incurred in the defense and settlement of
any litigation, (i) arising out of or based upon any untrue statement (or
alleged untrue statement) of a material fact contained in any registration
statement, preliminary prospectus, prospectus or documents incorporated by
reference therein, or based upon any omission (or alleged omission) of a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or (ii) incurred or arising out of any
violation by the Company of the Securities Act or any rule or regulation
promulgated under the Securities Act; PROVIDED, HOWEVER, that the Company
will not be under an obligation to indemnify any Holder if any of the
foregoing are made in reliance upon information furnished to the Company by
such Holder in writing expressly for inclusion in such registration
statement.
(b) Each Holder participating in a registration pursuant to
this Agreement will indemnify the Company, its directors and officers, each
person who controls the Company within the meaning of Section 15 of the
Securities Act, and each other Holder and each of its officers and
directors and each person controlling such Holder within the meaning of
Section 15 of the Securities Act, against all expenses, claims, losses,
damages and liabilities incurred (or actions in respect thereof) arising
out of any untrue statement (or alleged untrue statement) of a material
fact contained in any registration statement or based upon any omission (or
alleged omission) of a material fact required to be stated therein or
necessary to make the statements therein not misleading to the extent made
in reliance upon information furnished to the Company by such Holder in
writing expressly for inclusion in such registration statement.
(c) Each party entitled to indemnification under this Section
6 ("Indemnified Party") shall give prompt notice to the party required to
provide
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indemnification ("Indemnifying Party") as soon as the Indemnified Party has
actual knowledge of any claim for which indemnity may be sought, and shall
permit Indemnifying Party to assume and control the defense of any such
claim or any litigation resulting therefrom, provided that Indemnified
Party will have the right to select counsel, subject to the approval of the
Indemnifying Party (whose approval shall not be unreasonably withheld), to
defend such claim or litigation, and provided further that Indemnified
Party may participate in such defense at Indemnified Party's expense. The
Indemnifying Party shall not, without the prior written consent of the
Indemnified Party, consent to the entry of any judgment or enter into any
settlement which (i) provides for any remedy other than the prompt payment
of damages (and expenses) by the Indemnifying Party, without the admission
of wrongdoing on the part of the Indemnified Party and (ii) does not
include an unconditional provision releasing Indemnified Party from all
liability in respect of such claim or litigation. The failure of any
Indemnified Party to give notice of a claim subject to indemnification
shall not relieve Indemnifying Party of its obligations under this
Agreement except to the extent the failure to give such notice is
materially prejudicial to Indemnifying Party's ability to defend such
claim. Notwithstanding anything to the contrary in this paragraph, the
Indemnifying Party shall not have the right to assume the defense for
matters as to which there is a conflict of interest with, or separate and
different defenses available to, the Indemnified Party. In defending such
a claim the Indemnified Party shall conduct the defense and settlement
thereof, but the expenses, fees and disbursements therefore shall be
promptly paid by the Indemnifying Party.
(d) If the indemnification provided for in this Section 6 is
unavailable to or unenforceable by the Company or the Holders (or their
controlling persons) in respect of any expenses, claims, losses, damages,
and liabilities referred to herein, then each such Indemnifying Party, in
lieu of indemnifying such Indemnified Party, shall contribute to the amount
paid or payable by such Indemnified Party as a result of such expenses,
claims, losses, damages and liabilities in such proportions as is
appropriate to reflect the relative fault of the Indemnifying Party and the
Indemnified Parties in connection with the actions or inactions which
resulted in such expenses, claims, losses, damages, and liabilities, as
well as any other relevant equitable considerations (including the relative
fault and indemnification or contribution obligations of other relevant
parties). The relative fault of the Indemnifying Party on the one hand and
of the Indemnified Parties 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 Indemnifying Party or by the
Indemnified Party, and by such party's relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission.
The Company and the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 6(d) were determined by
pro rata allocation or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the
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Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company and Holders under this
Section 6 shall survive the completion of any offering of Registrable
Shares in a registration statement under this Agreement, and otherwise.
SECTION 7. TRANSFER OF REGISTRATION RIGHTS.
Any Holder's rights under this Agreement may be assigned or
transferred (in whole or in part) to any party who is or becomes a holder
of Registrable Shares.
SECTION 8. AMENDMENT OF REGISTRATION RIGHTS.
Any provision of this Agreement may be amended and the
observance thereof may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of the Company and Holders of a majority of the Registrable Shares
then outstanding. Any amendment or waiver effected in accordance with this
Section 8 shall be binding upon each Holder, each transferee or assignee of
Holder pursuant to Section 7 of this Agreement.
SECTION 9. TERMINATION OF REGISTRATION RIGHTS.
No Holder shall be entitled to exercise any right provided for
in Section 2 of this Agreement after the tenth anniversary of the date
hereof.
SECTION 10. NOTICES.
All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been made
(i) when delivered personally or by telecopier, (ii) if to a party in the
same country as the mailing party, when mailed first class registered or
certified mail, postage prepaid, or (iii) if to a party in a different
country from the sending party, on the second day following deposit with a
reputable commercial air courier, charges prepaid, to each respective party
as shown below:
(a) If to the holders of Registrable Shares, to the addresses
shown on the signature page(s) hereto (or as otherwise instructed in
writing from time to time), with a copy to:
O'Melveny & Xxxxx LLP
000 Xxxxx Xxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X Xxxxx III, Esq.
Telecopier: (000) 000-0000
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(b) If to the Company to:
Banyan Strategic Realty Trust
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telecopier: (000) 000-0000
with a copy to:
Xxxxxxx & Xxxxxxxx Ltd.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telecopier: (000) 000-0000
SECTION 11. PARTIES IN INTEREST.
This Agreement shall be binding upon and inure to the benefit
of each party, and nothing in this Agreement, express or implied, is
intended to confer upon any other person any rights or remedies of any
nature whatsoever under or by reason of this Agreement. Nothing in this
Agreement is intended to relieve or discharge the obligation of any third
person to any party to this Agreement.
SECTION 12. COUNTERPARTS.
This Agreement may be executed in any number of counterparts
and by different parties 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.
SECTION 13. HEADINGS.
The headings in this Agreement are for convenience only and
shall not limit or otherwise affect the meaning hereof.
SECTION 14. GOVERNING LAW; JURISDICTION.
This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to principles of
conflict of law.
Each party hereby irrevocably submits to and accepts for itself
and its properties, generally and unconditionally, the exclusive
jurisdiction of and service of process pursuant to the laws of the State of
New York and the rules of its courts, waives any defense of forum non
conveniens and agrees to be bound by any judgment rendered
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thereby arising under or out of in respect of or in connection with this
Agreement or any related document or obligation. Each party further
irrevocably designates and appoints the individual identified in or
pursuant to Section 10 hereof to receive notices (not copies) on its
behalf, as its agent to receive on its behalf service of all process in any
such action before any body, such service being hereby acknowledged to be
effective and binding service in every respect. A copy of any such process
so served shall be mailed by registered mail to each party at its address
provided in Section 10; PROVIDED that, unless otherwise provided by
applicable law, any failure to mail such copy shall not affect the validity
of the service of such process. If any agent so appointed refuses to
accept service, the designating party hereby agrees that service of process
sufficient for personal jurisdiction in any action against it in the
applicable jurisdiction may be made by registered or certified mail, return
receipt requested, to its address provided in Section 10. Each party
hereby acknowledges that such service shall be effective and binding in
every respect. Nothing herein shall affect the right to serve process in
any other manner permitted by law.
SECTION 15. SEVERABILITY.
In the event that any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid,
illegal or unenforceable, the validity, legality and enforceability of any
such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
SECTION 16. ENTIRE AGREEMENT.
This Agreement contains the entire understanding of the parties
with respect to the subject matter of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
COMPANY: BANYAN STRATEGIC REALTY TRUST,
a Massachusetts business trust
By: /s/ XXXXXXX X. XXXXXX
------------------------------
Printed Name: Xxxxxxx X. Xxxxxx
------------------------------
Title: President
------------------------------
[SIGNATURES CONTINUED ON NEXT PAGE]
S-1
PURCHASERS:
RESTART PARTNERS, L.P.,
a Delaware limited partnership
By: PRIME GROUP L.P.,
a Delaware limited partnership,
its General Partner
By: PRIME GROUP, INC.,
a Delaware corporation,
its General Partner
By: Xxxxx X. Xxxxxxx
(whose signature appears below),
Authorized Agent
[SIGNATURES CONTINUED ON NEXT PAGE]
S-2
RESTART PARTNERS II, L.P.,
a Delaware limited partnership
By: PRIME GROUP II, L.P.,
a Delaware limited partnership,
its General Partner
By: PRIME GROUP, INC.,
a Delaware corporation,
its General Partner
By: Xxxxx X. Xxxxxxx
(whose signature appears below),
Authorized Agent
RESTART PARTNERS III, L.P.,
a Delaware limited partnership
By: PRIME GROUP III, L.P.,
a Delaware limited partnership,
its General Partner
By: PRIME GROUP, INC.,
a Delaware corporation,
its General Partner
By: Xxxxx X. Xxxxxxx
(whose signature appears below),
Authorized Agent
[SIGNATURES CONTINUED ON NEXT PAGE]
S-3
RESTART PARTNERS IV, L.P.,
a Delaware limited partnership
By: PRIME GROUP IV, L.P.,
a Delaware limited partnership,
its General Partner
By: PRIME GROUP, INC.,
a Delaware corporation,
its General Partner
By: Xxxxx X. Xxxxxxx
(whose signature appears below),
Authorized Agent
RESTART PARTNERS V, L.P.,
a Delaware limited partnership
By: PRIME GROUP V, L.P.,
a Delaware limited partnership,
its General Partner
By: PRIME GROUP INC.,
a Delaware corporation,
its General Partner
By: Xxxxx X. Xxxxxxx
(whose signature appears below),
Authorized Agent
[SIGNATURES CONTINUED ON NEXT PAGE]
S-4
ENDOWMENT RESTART, LLC,
a Delaware limited liability company
By: ENDOWMENT PRIME, LLC,
a Delaware limited liability company,
its General Partner
By: Xxxxx X. Xxxxxxx
(whose signature appears below),
Authorized Agent
MORGENS WATERFALL INCOME PARTNERS, L.P.
a New York limited partnership
By: MW CAPITAL, LLC
a Delaware limited liability company
its General Partner
By: Xxxxx X. Xxxxxxx
(whose signature appears below),
Authorized Agent
/s/ XXXXX X. XXXXXXX
____________________________________________
Xxxxx X. Xxxxxxx,
for the entities and in the capacities described above
[SIGNATURES CONTINUED ON NEXT PAGE]
S-5
Notice Address for all Purchasers:
---------------------------------
Morgens, Waterfall, Vintiadis & Company, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx X. Xxxxxxx
and
General Counsel
S-6
