Exhibit 10.18
WARRANT PURCHASE AGREEMENT
by and between
CABOT INDUSTRIAL TRUST,
a Maryland real estate
investment trust
and
INDUSTRIAL VENTURES, L.P.
a Delaware Limited Partnership
September 5, 2000
WARRANT PURCHASE AGREEMENT
THIS WARRANT AGREEMENT (the "AGREEMENT") is made as of September 5, 2000,
by and between CABOT INDUSTRIAL TRUST, a Maryland real estate investment trust
(the "COMPANY") and INDUSTRIAL VENTURES, L.P., a Delaware limited partnership
(the "PURCHASER").
RECITALS
WHEREAS, Purchaser and Cabot Ventures LLC, a subsidiary of Cabot
Industrial Properties, L.P. (the "Operating Partnership") and an affiliate of
the Company, have entered into that certain transaction for a certain joint
venture to acquire and develop industrial facilities, of even date herewith (the
"JOINT VENTURE AGREEMENT"); and
WHEREAS, as an inducement to have the Purchaser enter into the Joint
Venture Agreement, the Operating Partnership, for agreed upon consideration, has
caused the Company to issue to the Purchaser, and the Purchaser wishes to accept
from the Company, a warrant to purchase seven hundred fifty thousand (750,000)
common shares of beneficial interest, par value $0.01 per share ("Common
Shares"), of the Company in the form attached hereto as EXHIBIT A, with terms
and conditions as set forth therein (the "WARRANT"); and
WHEREAS, the Company and the Purchaser desire to make certain
representations and warranties in connection with the transactions contemplated
hereby.
NOW, THEREFORE, in consideration of the foregoing premises, the
representations and warranties, covenants and other agreements hereinafter set
forth, the mutual benefits to be gained by the performance thereof, and other
good and valuable consideration, the receipt and legal sufficiency of which are
hereby acknowledged and accepted, the parties hereto hereby agree as follows:
1. ISSUANCE OF THE WARRANT.
1.1. ISSUANCE. On the Warrant Closing (as defined in SECTION 1.2 hereof),
upon the terms and subject to the conditions of this Agreement, the Company
agrees to issue to the Purchaser, and the Purchaser agrees to accept from the
Company, the Warrant in connection with the execution of the Joint Venture
Agreement by the Company's affiliate.
1.2. CLOSING. The closing of the transactions contemplated hereby pursuant
to the terms and provisions hereof (the "WARRANT CLOSING") shall take place
simultaneously with the execution of the Joint Venture Agreement at such place
as the parties may agree unless another place or time is agreed to in writing by
the Company and the Purchaser. The date upon which the Warrant Closing occurs
shall be referred to herein as the "CLOSING DATE."
1.3. CLOSING DELIVERIES.
(a) PURCHASER. At the Warrant Closing, on the terms and subject to
the conditions set forth herein and in reliance on the representations and
warranties, covenants and other agreements set forth herein, the Purchaser shall
deliver, or cause to be delivered, to the Company such agreements, instruments,
certificates and other documents as may be necessary or reasonably appropriate
to effectuate completely the transactions contemplated hereby.
(b) COMPANY. At the Warrant Closing, on the terms and subject to the
conditions set forth herein and in reliance on the representations and
warranties, covenants and other agreements set forth herein, the Company shall
deliver, or cause to be delivered, to the Purchaser each of the following: a
certified copy of the Company's current Declaration of Trust as filed with the
Secretary of State of Maryland and a Certificate of Existence for the Company
from the Secretary of State of Maryland; the executed Warrant; an opinion of
counsel with respect to such matters reasonably requested by Purchaser and in
form attached as Exhibit __ to the Joint Venture Agreement; and such other
agreements, instruments, certificates and other documents as may be necessary or
reasonably appropriate to effectuate completely the transactions contemplated
hereby.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to the Purchaser as follows:
2.1. ORGANIZATION, STANDING AND POWER. The Company is a real estate
investment trust duly organized, validly existing and in good standing under the
laws of the State of Maryland. The Company has the trust power to carry on its
business as now, heretofore and proposed to be conducted and has all licenses,
permits, consents or approvals from or by, and has made all filings with, and
has given all notices to, all governmental authorities having jurisdiction, to
the extent required for the conduct of its business. The Company is duly
qualified to do business and is in good standing in each jurisdiction in which
the failure to be so qualified would reasonably be expected to have a material
adverse effect on the Company or the ability of the Company to consummate the
transactions contemplated hereby (a "MATERIAL ADVERSE EFFECT"). The Company has
made available a true and correct copy of the Declaration of Trust and Bylaws of
the Company, as amended to date, to counsel for the Purchaser. The Company is in
compliance with its Declaration of Trust and Bylaws, and is in compliance with
all applicable provisions of law, where the failure to comply could reasonably
be expected to have a Material Adverse Effect.
2.2. AUTHORITY. The Company has all requisite trust power and authority to
enter into this Agreement and, upon the Warrant Closing, the Warrant and to
consummate the transactions contemplated hereby and thereby. The execution and
delivery of this Agreement and, upon the Warrant Closing, the Warrant and the
consummation of the transactions contemplated hereby and thereby have been duly
authorized by all necessary trust action on the part of the Company, and no
further action is required on the part of the Company to authorize the
Agreement, the Warrant and the transactions contemplated hereby and thereby.
This Agreement and the Warrant have been duly executed and delivered by the
Company and constitutes or, in the case of the Warrant, when executed will
constitute, a valid and binding obligation of the Company, enforceable in
accordance with their respective terms, except as such
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enforceability may be limited by principles of public policy and subject to the
laws of general application relating to bankruptcy, insolvency and the relief of
debtors and to rules of law governing specific performance, injunctive relief or
other equitable remedies. The execution and delivery by the Company of this
Agreement and, upon the Warrant Closing, the Warrant do not, and the performance
and consummation of the transactions contemplated hereby and thereby will not
violate or conflict with: (i) any provisions of its Declaration of Trust or
Bylaws, as amended; (ii) any mortgage, indenture, lease, contract or other
agreement or instrument, permit, concession, franchise or license to which the
Company is subject; or (iii) any judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to the Company or its properties or
assets, other than as would, with respect to clause (ii), not have a Material
Adverse Effect. No consent, waiver, approval, order or authorization of, or
registration, declaration or filing with, any governmental body, agency,
authority or any other party is required by or with respect to the Company in
connection with the execution and delivery of this Agreement or the Warrant or
the consummation of the transactions contemplated hereby or thereby, except
those which have been fully obtained, made or complied with or which would not
have a Material Adverse Effect.
2.3. AUTHORIZED AND OUTSTANDING SHARES OF BENEFICIAL INTEREST. After
giving effect to the Warrant Closing and the consummation of the transactions
contemplated by the Joint Venture Agreement, the authorized shares of beneficial
interest of the Company consists of 140,900,000 Common Shares, 1,000,000 Series
A junior participating preferred shares of beneficial interest, $0.01 par value
per share (the "Series A Preferred Shares"), 1,300,000 Series B cumulative
redeemable preferred shares of beneficial interest, $0.01 par value per share
(the "Series B Preferred Shares"), 2,600,000 Series C cumulative redeemable
preferred shares of beneficial interest, $0.01 par value per share (the "Series
C Preferred Shares"), 200,000 Series D cumulative redeemable preferred shares of
beneficial interest, $0.01 par value per share (the "Series D Preferred
Shares"), 200,000 Series E cumulative redeemable preferred shares of beneficial
interest, $0.01 par value per share (the "Series E Preferred Shares"), 1,800,000
Series F cumulative redeemable preferred shares of beneficial interest, $0.01
par value per share (the "Series F Preferred Shares"), 600,000 Series G
cumulative redeemable preferred shares of beneficial interest, $0.01 par value
per share (the "Series G Preferred Shares"), 1,400,000 Series H cumulative
redeemable preferred shares of beneficial interest, $0.01 par value per share
(the "Series H Preferred Shares") of which 40,619,833 Common Shares and no
Series A Preferred Shares, Series B Preferred Shares, Series C Preferred Shares,
Series D Preferred Shares, Series E Preferred Shares, Series F Preferred Shares,
Series G Preferred Shares and Series H Preferred Shares are issued and
outstanding.
2.4. ISSUANCE OF WARRANT. Upon delivery to Purchaser of certificates
representing the Warrant, the Warrant will have been duly authorized and be
validly issued, fully paid, non-assessable, subject to no pre-emptive rights,
and free and clear of all pledges, liens or encumbrances. At all times following
the Warrant Closing during which the Warrant is outstanding and exercisable, the
Company will reserve and keep available out of its authorized Common Shares,
solely for the issuance and delivery upon exercise of the Warrant, at least the
number of Common Shares issuable upon exercise of all of the outstanding
Warrants. The Common Shares that are issued upon exercise of the Warrant will,
when issued in accordance with the terms thereof, be duly authorized, validly
issued, fully paid, non-assessable, subject to no pre-emptive rights, and free
and clear of any pledges, liens or encumbrances.
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2.5. SECURITIES LAWS. Assuming the accuracy of Purchaser's representations
pursuant to Section 3 of this Agreement and Purchaser's compliance with its
obligations under this Agreement and the Warrant, the offer, issuance, sale and
delivery of the Warrant, as provided in this Agreement, and the offer, issuance,
sale and delivery of the Common Shares purchasable under the Warrant upon the
exercise thereof, are and will be exempt from the registration requirements of
the Securities Act of 1933, as amended (the "Securities Act") and all applicable
state securities laws.
2.6. SEC REPORTS. The Company has timely filed each report and proxy
statement which was required to be filed with the Securities and Exchange
Commission (the "COMMISSION") since January 1, 2000, (collectively, the "COMPANY
SEC REPORTS"), all of which, as of their respective filing dates, complied in
all material respects with all applicable requirements of the Securities Act and
the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder. None of such Company SEC Reports, as of the respective
dates they were filed, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. Each of the audited consolidated financial
statements of Company (including any related notes and schedules) included
(incorporated by reference) in its Annual Report on Form 10-K for the fiscal
year ended December 31, 1999, fairly present, in conformity with Generally
Accepted Accounting Principles applied on a consistent basis (except as may be
indicated in the notes thereto), the consolidated financial position of Company
and its subsidiaries as of the date thereof and the consolidated results of
their operations and their cash flows for the periods there ended.
2.7. MATERIAL CHANGES. Except as may be described in the Company's reports
filed with the Commission, none of the Company or any of its subsidiaries has
sustained, since January 1, 2000, any material loss or interference with its
business from fire, exposure, flood, hurricane, accident or other calamity,
whether or not covered by insurance, or from any court or governmental action,
order or decree and there has not been (i) any material change in the capital
stock, long-term debt, obligations under capital leases or short-term borrowings
of the Company or any of its subsidiaries or (ii) any material adverse change or
development which could reasonably be seen as involving a prospective material
adverse change, in or affecting the business, prospects, properties, assets,
results of operations or condition (financial or other) of the Company or its
subsidiaries.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser hereby
represents and warrants to the Company that:
3.1. ORGANIZATION AND STANDING. The Purchaser is a limited partnership
duly organized, validly existing and in good standing under the laws of the
State of Delaware.
3.2. AUTHORITY. The Purchaser has all requisite partnership power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery by the Purchaser of this
Agreement, the performance by the Purchaser of its obligations hereunder, and
the consummation by the Purchaser of the transactions contemplated hereby have
been duly authorized by all necessary partnership action on the part of
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the Purchaser. This Agreement has been duly executed and delivered by the
Purchaser and constitutes a valid and binding obligation of the Purchaser,
enforceable in accordance with the terms hereof, except as such enforceability
may be limited by principles of public policy and subject to the laws of general
application relating to bankruptcy, insolvency, creditors rights and the relief
of debtors and to rules of law governing specific performance, injunctive relief
or other equitable remedies.
3.3. NO CONFLICTS. The execution and delivery by the Purchaser of this
Agreement, the performance by the Purchaser of its obligations hereunder, and
the consummation by the Purchaser of the transactions contemplated hereby, will
not violate or conflict with: (A) any provision of the organizational documents
of the Purchaser, or (B) any material mortgage, indenture, lease, contract or
other agreement or instrument, permit, concession, franchise, license, judgment,
order, decree, statute, law, ordinance, rule or regulation applicable to the
Purchaser or its properties or assets, other than any such conflicts,
violations, defaults, terminations, cancellations, modifications, accelerations
or losses which would not have a material adverse effect on the ability of the
Purchaser to consummate the transactions contemplated hereby, or (ii) any order,
injunction, judgment, ruling, law or regulation of any governmental authority
applicable to the Purchaser or any of its properties or assets. No consent,
waiver approval, order or authorization of, or registration, declaration or
filing with, any governmental body, agency, authority or any other party
including, without limitation, a party to any agreement with the Purchaser, is
required by or with respect to the Purchaser in connection with the execution
and delivery by the Purchaser of this Agreement, the performance by the
Purchaser of the transactions contemplated hereby, except for: (x) such
consents, approvals, orders, authorizations, registrations, declarations and
filings as may be required under applicable state and federal securities and
antitrust laws, and (y) such other consents, authorizations, filings, approvals
and registrations which if not obtained or made would not have a material
adverse effect on the ability of the Purchaser to consummate the transactions
contemplated hereby.
3.4. BROKERS' AND FINDERS' FEES. The Purchaser has not incurred, nor will
it incur, directly or indirectly, any liability for brokerage or finders' fees
or agents' commissions or any similar charges in connection with this Agreement,
or the consummation of the transactions contemplated hereby.
3.5. PURCHASE ENTIRELY FOR OWN ACCOUNT. The Warrant and the Common Shares
issued upon exercise of the Warrant will be acquired for investment for the
Purchaser's own account, not as a nominee or agent, and not with a view to the
resale, distribution or offering of any part thereof, and the Purchaser has no
present intention of selling, granting any participation in, or otherwise
distributing the same. The Purchaser does not presently have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or grant
participation to such person or to any third person, with respect to the Warrant
or any Common Shares issued upon exercise of the Warrant.
3.6. ACCREDITED INVESTOR; INVESTMENT EXPERIENCE. The Purchaser has such
knowledge and experience in financial and business matters that it is capable of
evaluating the merits and risks of the prospective investment in the securities,
it is able to bear the economic consequences thereof, and it qualifies as an
"accredited investor" as such term is defined in Rule 501 of Regulation D
promulgated under the Securities Act. Purchaser or its representatives is
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experienced in evaluating and investing in securities of publicly traded
companies and acknowledges that it can bear the economic risk of its investment.
Purchaser is a "U.S. Person" as that term is defined in the Internal Revenue
Code of 1986, as amended, and has not been formed for the specific purpose of
acquiring the Securities.
3.7. RESTRICTED SECURITIES; RESTRICTED SALE PERIOD. Purchaser understands
that the Warrant has not been, and will not be, registered under the Securities
Act or any state securities law ("Blue Sky"), by reason of a specific exemption
from the registration provisions of the Securities Act and the applicable Blue
Sky laws, which depend upon, among other things, the bona fide nature of the
investment intent and the accuracy of such Purchaser's representations as
expressed herein. Such Purchaser understands that, as such, the Warrant and the
Common Shares issued upon exercise of the Warrant are characterized as
"restricted securities" under the Securities Act and that under the Securities
Act and applicable regulations such Warrant and Warrant Shares may be resold
without registration under the Securities Act only in certain limited
circumstances. In this connection, such Purchaser represents that it is familiar
with Rule 144 promulgated under the Securities Act, as presently in effect, and
understands the resale limitations imposed thereby and by the Securities Act.
4. REGISTRATION.
4.1. SHELF REGISTRATION. The Company shall use its commercially reasonable
efforts to file a registration statement on a Form S-3 or other available form
with the Commission, within ninety (90) days after the Closing Date, to effect a
registration covering the Common Shares issuable upon the exercise of the
Warrant and any related qualification or compliance under applicable state
securities or Blue Sky laws with respect to the Common Shares issuable pursuant
to exercise of the Warrant, which shall be a resale "shelf" offering pursuant to
Rule 415 under the Securities Act; provided, however, that the Company shall not
be obligated to effect any such registration, qualification or compliance
pursuant to this Section 4.1, if the Company furnishes to the Purchaser a
certificate signed by the Chief Financial Officer of the Company stating, that
in the good faith judgment of the Company, such registration and sale would: (x)
require disclosure of a previously undisclosed material development involving
the Company which disclosure would have a material adverse effect on the Company
or its prospects; or (y) materially interfere with any financing, acquisition,
corporate reorganization or other material transaction involving the Company
then under consideration. In such event(s) the Company shall have the right to
defer the filing of such registration statement not more than twice in any
twelve (12) month period for a period of not more than sixty (60) days. If and
so long as the Common Shares are listed on the New York Stock Exchange or any
national securities exchange or inter-dealer quotation system, then the Company
will, at its expense, pay promptly and maintain the approval for listing on each
such exchange or inter-dealer quotation system upon official notice of issuance,
of the Common Shares issuable upon exercise of the then outstanding Warrant and
maintain the listing of such shares after their issuance.
4.2. REGISTRATION PROCEDURES In connection with registration of Company
securities under this Section 4, Company will, as expeditiously as possible:
(a) prepare and file with the Commission the applicable Registration
Statement with respect to such securities (in the case of the "shelf"
Registration Statement, in
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accordance with the time periods set forth in Section 4.1) and use its
commercially reasonable efforts to cause such Registration Statement to become
and remain effective until the earlier of (x) disposition of such securities by
the holders thereof or (y) such time as all such securities may be sold freely
under Rule 144(k) promulgated under the Securities Act;
(b) prepare and file with the Commission 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 sale or
other disposition of all securities covered by such Registration Statement until
the earlier of (x) such time as all of such securities have been disposed of or
(y) such time as all such securities may be sold freely under Rule 144(k)
promulgated under the Securities Act;
(c) furnish to such selling security holders such number of copies of
a summary prospectus or other prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other
documents, as such selling security holders may reasonably request;
(d) use its commercially reasonable efforts to register or qualify
the securities covered by such Registration Statement under such other
securities or blue sky laws of such jurisdictions as each holder of such
securities shall request (provided, however, that Company shall not be obligated
to qualify as a foreign corporation to do business under the laws of any
jurisdiction in which it is not then qualified or to file any general consent to
service of process), and do such other reasonable acts and things as may be
required of it to enable such holder to consummate the disposition in such
jurisdiction of the securities covered by such Registration Statement;
(e) furnish, at the request of any holder, on the date that such
shares of Warrant Stock are delivered to the underwriters (if any) for sale
pursuant to such registration, (1) an opinion, dated such date, of the
independent counsel representing Company for the purposes of such registration,
addressed to the underwriters, in customary form and covering matters of the
type customarily covered in such legal opinions; and (2) a comfort letter dated
such date, from the independent certified public accountants of Company,
addressed to the underwriters, in a customary form and covering matters of the
type customarily covered by such comfort letters as the underwriters shall
reasonably request;
(f) enter into customary agreements (including an underwriting
agreement in customary form) and take such other actions as are reasonably
required in order to expedite or facilitate the disposition of such securities;
and
(g) otherwise use its commercially reasonable efforts to comply with
all applicable rules and regulations of the Commission.
4.3. EXPENSES. All expenses incurred in complying with Section 4,
including, without limitation, all registration and filing fees (including all
expenses incident to filing with the NASD), printing expenses, fees and
disbursements of counsel for Company, expenses of any
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special audits incident to or required by any such registration and expenses of
complying with the securities or blue sky laws of any jurisdictions pursuant to
Section 4.2(d), shall be paid by Company, except that Company shall not be
liable for any fees, discounts or commissions to any underwriter or any fees or
disbursements of counsel for the selling security holders or for any underwriter
in respect of the securities sold by such holder of Warrant Stock.
4.4. INDEMNIFICATION AND CONTRIBUTION.
(a) In the event of any registration of any of the Warrant Stock
under the Securities Act pursuant to this Section 4, Company shall indemnify and
hold harmless the holder of such Warrant Stock, such holder's directors and
officers, and each other person (including each underwriter) who participated in
the offering of such Warrant Stock and each other person, if any, who controls
such holder or such participating person within the meaning of the Securities
Act, against any losses, claims, damages or liabilities, joint or several, to
which such holder or any such director or officer or participating person or
controlling person may become subject under the Securities Act or any other
statute or at common law, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon (i) any alleged
untrue statement of any material fact contained in any Registration Statement
under which such securities were registered under the Securities Act, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereto, or (ii) any alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and shall reimburse such holder or such director, officer or
participating person or controlling person for any legal or any other expenses
reasonably incurred by such holder or such director, officer or participating
person or controlling person in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that Company
shall not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any alleged untrue statement
or alleged omission made in such Registration Statement, preliminary prospectus,
prospectus or amendment or supplement in reliance upon and in conformity with
written information furnished to Company by such holder specifically for use
therein. Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such holder or such director, officer or
participating person or controlling person, and shall survive the transfer of
such securities by such holder.
(b) Each holder of any Warrant Stock, by acceptance thereof, agrees,
severally and not jointly, to indemnify and hold harmless Company, its directors
and officers and each other person, if any, who controls Company within the
meaning of the Securities Act against any losses, claims, damages or
liabilities, joint or several, to which Company or any such director or officer
or any such Person may become subject under the Securities Act or any other
statute or at common law, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon information
provided in writing to Company by such holder of such Warrant Stock specifically
for use in and contained in any Registration Statement under which securities
were registered under the Securities Act at the request of such holder, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereto, but in an amount not to exceed the net proceeds received
by such holder in the offering.
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(c) If the indemnification provided for in this Section 4 from the
indemnifying party is unavailable to an indemnified party hereunder in respect
of any losses, claims, damages, liabilities or expenses referred to therein,
then the indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified parties in connection with the actions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such indemnifying party
and indemnified parties shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include any legal or other
fees or expenses reasonably incurred by such party in connection with any
investigation or proceeding. The liability of any holder of Warrant Stock
hereunder shall not exceed the net proceeds received by it in the offering.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 4.5(c) 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 Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
4.5. TERMINATION OF RESTRICTIONS. Any restrictions imposed upon the
transferability of the Warrant Stock and the legend requirements of Section 4.6
shall terminate as to any particular share of Warrant Stock (i) when and so long
as such security shall have been registered under the Securities Act and
disposed of pursuant thereto or (ii) when Company shall have received an opinion
of counsel reasonably satisfactory to it that such shares may be transferred
without registration thereof under the Securities Act. Whenever the transfer
restrictions shall terminate as to any share of Warrant Stock, as hereinabove
provided, the holder thereof shall be entitled to receive from Company, at
Company's expense, a new certificate representing such Common Shares not bearing
the restrictive legend set forth in Section 4.6.
4.6. LEGENDS. It is understood that the Warrant, and any securities issued
in respect thereof or exchange therefor prior to the effective date of any
registration statement filed pursuant to Section 4, may bear one or all of the
following legends:
(a) THIS WARRANT AND COMMON SHARES ISSUED UPON EXERCISE HEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A
VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION
THEREOF. NO SUCH SALE OR DISPOSITION MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO
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OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY IN FORM AND
SUBSTANCE TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
(b) Any legend required by the Blue Sky laws of any state to the
extent such laws are applicable to the securities represented by
the certificate so legended.
5. ADDITIONAL DOCUMENTS AND FURTHER ASSURANCES. Each party hereto, at the
request of the other party hereto, shall execute and deliver such other
instruments and do and perform such other acts and things as may be necessary or
desirable for effecting completely the consummation of this Agreement and the
transactions contemplated hereby.
6. INDEMNIFICATION. (a) The Company agrees to indemnify and hold harmless
Purchaser and each holder of the Warrants and any Common Shares issued pursuant
to the Warrants from and against any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, claims, costs, attorney's fees, expenses
and disbursements of any kind which may be imposed upon, incurred by or asserted
against Purchaser or any holder of the Warrants and any Common Shares issued
pursuant to the Warrants in any manner relating to or arising out of any untrue
representation, breach of warranty or failure to perform any covenants by the
Company contained herein or in any certificate or document delivered pursuant
hereto.
(b) Purchaser agrees to indemnify and hold harmless Company from and
against any liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, claims, costs, attorney's fees, expenses and disbursements of
any kind which may be imposed upon, incurred by or asserted against Company in
any manner relating to or arising out of any untrue representation, breach of
warranty or failure to perform any covenants by Purchaser contained herein or in
any certificate or document delivered pursuant hereto.
7. MISCELLANEOUS.
7.1. TERM. This Agreement shall remain in full force and effect until the
Warrants have expired by their terms and the Purchaser or any holder of the
Warrants no longer holds any shares of Warrant Stock.
7.2. SURVIVAL. The representations and warranties of the Company in this
Agreement shall survive the execution, delivery and acceptance hereof by the
parties hereto and the closing of the transactions described herein or related
hereto.
7.3. TRANSFER, SUCCESSORS AND ASSIGNS. The transfer of the Warrant is
subject to the conditions to transfer set forth therein. The terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the respective successors and assigns of the parties and all Warrant Transferees
(as defined herein). Any assignee or transferee of all or any part of the
Warrant ("WARRANT TRANSFEREE") shall be deemed a party to this Agreement.
Nothing in this Agreement, express or implied, is intended to confer upon any
party, other than
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the parties hereto, their respective successors and assigns or any Warrant
Transferees, any rights, remedies, obligations, or liabilities under or by
reason of this Agreement, except as expressly provided in this Agreement. All
references herein to Purchaser shall be deemed to include all subsequent Warrant
Transferees.
7.4. GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of Maryland.
7.5. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
7.6. TITLES AND SUBTITLES; HEADINGS. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement. The headings contained in this
Agreement are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement, or any of the terms and
provisions hereof.
7.7. NOTICES. All notices and other communications hereunder and under the
Warrant shall be in writing and shall be deemed given if delivered personally or
by a recognized commercial overnight delivery service, or mailed by registered
or certified mail (return receipt requested) or sent via facsimile (with
acknowledgment of complete transmission) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):
(i) if to the Purchaser, to: Industrial Ventures, L.P.
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal Operations
Reference: Project Hub
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
(ii) if to the Company, to: CABOT INDUSTRIAL TRUST
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telephone No: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
7.8. LIMITATION OF LIABILITY OF SHAREHOLDERS, TRUSTEES AND OFFICERS OF
COMPANY. No obligations or liabilities of Company which may arise at any time
under this Agreement or any obligation or liability which may be incurred by it
pursuant to any other instrument, transaction or undertaking contemplated hereby
or thereby shall be personally binding upon, nor shall resort for the
enforcement thereof be had to, the property of any of Company's shareholders,
trustees, officers, employees or agents solely as a result of their
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status, and solely in their capacities as, shareholders, trustees, officers,
employees or agents, as the case may be, regardless of whether such obligation
or liability is in the nature of contract, tort or otherwise. Nothing contained
herein shall act to limit the liability of Company's trustees, officers,
employees or agents to Company or limit the ability of any shareholder of
Company to bring a derivative action on behalf of the Company against its
trustees, officers, employees or agents.
7.9. ATTORNEYS' FEES. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorney's fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
7.10. AMENDMENTS. Any term of this Agreement may be amended only with the
written consent of the Company and the Purchaser.
7.11. SEVERABILITY. In the event that any provision of this Agreement or
the application thereof, becomes or is declared by a court of competent
jurisdiction to be illegal, void or unenforceable, the remainder of this
Agreement will continue in full force and effect and the application of such
provision to other persons or circumstances will be interpreted so as reasonably
to effect the intent of the parties hereto. The parties further agree to replace
such void or unenforceable provision of this Agreement with a valid and
enforceable provision that will achieve, to the extent possible, the economic,
business and other purposes of such void or unenforceable provision.
7.12. ENTIRE AGREEMENT. This Agreement, the Warrant and the Joint Venture
Agreement constitute the entire agreement between the parties hereto pertaining
to the issuance of the Warrant.
7.13. EXTENSION; WAIVER. At any time, the Purchaser and the Company may,
to the extent legally allowed, (i) extend the time for the performance of any of
the obligations of the other party hereto, (ii) waive any inaccuracies in the
representations and warranties made to such party contained herein or in any
document delivered pursuant hereto, and (iii) waive compliance with any of the
agreements or conditions for the benefit of such party contained herein. Any
agreement on the part of a party hereto to any such extension or waiver shall be
valid only if set forth in an instrument in writing signed on behalf of such
party.
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IN WITNESS WHEREOF, the parties have executed this Warrant Agreement as of
the date first above written.
COMPANY:
CABOT INDUSTRIAL TRUST
By:/s/ Cabot Industrial Trust
---------------------------
---------------------------
PURCHASER:
INDUSTRIAL VENTURES, L.P.
By: MF FUNDING, INC., a Delaware corporation
its general partner
By:/s/ MF Funding, Inc.
---------------------------
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