Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") dated as of April 2, 1999,
by and between Golf Trust of America, Inc., a Maryland corporation (the
"COMPANY"), and AEW Targeted Securities Fund, L.P. (the "PURCHASER").
This Agreement is made pursuant to a certain Stock Purchase Agreement (the
"STOCK PURCHASE AGREEMENT") dated as of the date hereof by and between the
Company and the Purchaser, pursuant to which the Purchaser shall purchase
800,000 shares of Series A Cumulative Convertible Preferred Stock, par value
$.01 per share, of the Company (the "PREFERRED STOCK"), which are convertible
into shares of Common Stock, par value $.01 per share, of the Company. In order
to induce the purchasers to enter into the Stock Purchase Agreement, the Company
has agreed to provide the registration rights set forth in this Agreement. The
execution of this Agreement is a condition to the closing of the transactions
contemplated by the Stock Purchase Agreement.
In consideration of the foregoing, the parties hereby agree as follows:
SECTION 1. DEFINITIONS.
As used in this Agreement, the following terms shall have the following
meanings:
"ADVICE" has the meaning set forth in Section 3.
"AFFILIATE" means, with respect to any specified Person, any other Person
who, directly or indirectly, controls, is controlled by, or is under common
control with such specified Person.
"BUSINESS DAY" means any day other than a Saturday or Sunday or a day on
which commercial banking institutions in New York, New York are authorized by
law to be closed. Any reference to "days" (unless Business Days are specified)
shall mean calendar days.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means the common stock, par value $0.01 per share, of the
Company,
"COMPANY" has the meaning set forth in the preamble and shall include the
Company's successors by merger, acquisition, reorganization or otherwise.
"CONTROLLING PERSONS" has the meaning set forth in Section 6(a).
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"DAMAGES" has the meaning set forth in Section 6(a).
"DEVELOPMENT SUSPENSION NOTICE" has the meaning set forth in Section 4.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended from
time to time, or any successor statute, and the rules and regulations of the
Commission promulgated thereunder.
"HOLDER" means (i) each Person (other than the Company and its Affiliates)
who is a signatory to this Agreement as listed on Schedule 1 hereto and (ii)
each Person (other than the Company and its Affiliates) to whom a Holder
transfers Securities if such Person acquires such Securities as Registrable
Securities.
"HOLDER'S UNDERWRITTEN OFFERING" has the meaning set forth in Section
3(s).
"INSPECTORS" has the meaning set forth in Section 3(k).
"LIMITED PARTNERS" shall mean the limited partners of Golf Trust of
America, L.P., a Delaware limited partnership.
"NASD" has the meaning set forth in Section 3(m).
"NASDAQ" has the meaning set forth in Section 3(m).
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, limited liability company,
unincorporated organization or government or other agency or political
subdivision thereof.
"PROSPECTUS" means the prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective Registration
Statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities covered by such
Registration Statement, and all other amendments and supplements to the
prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such prospectus.
"RECORDS" has the meaning set forth in Section 3(k).
"REGISTRABLE SECURITIES" means the Securities; PROVIDED, HOWEVER, that any
Securities shall cease to be Registrable Securities when (i) a Registration
Statement covering such Securities has been declared effective and such
Registrable Securities have been disposed of by the holder thereof pursuant to
such effective Registration Statement or any other effective
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registration statement, (ii) such Securities are transferred by the holder
thereof to any Person other than a Holder pursuant to Rule 144 (or any successor
rule or similar provision then in effect, but not Rule 144A) under the
Securities Act, including a sale pursuant to the provisions of Rule 144(k), or
(iii) such Securities shall have ceased to be outstanding.
"REGISTRATION EXPENSES" has the meaning set forth in Section 5.
"REGISTRATION STATEMENT" means any registration statement of the Company
that covers any of the Registrable Securities pursuant to the provisions of this
Agreement and all amendments and supplements to any such registration statement,
including post-effective amendments, in each case including the Prospectus, all
exhibits, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
"REQUIRED FILING DATE" has the meaning set forth in Section 2(a).
"SECURITIES" shall mean the Preferred Stock, including any subdivisions,
reclassifications or other recapitalization thereof and all shares of Common
Stock issued or to be issued to the Holders upon the conversion of their
Preferred Stock.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time to
time, or any successor statute, the rules and regulations of the Commission
promulgated thereunder.
"SECTION 3 SUSPENSION NOTICE" has the meaning set forth in Section 3.
"SHELF REGISTRATION STATEMENT" has the meaning set forth in Section 2(a).
"STOCK PURCHASE AGREEMENT" has the meaning set forth in the introduction.
"SUSPENSION NOTICE" has the meaning set forth in Section 4.
"TARGET EFFECTIVE DATE" means the date thirty (30) days after the earlier
of (i) a Required Filing Date or (ii) the date on which the Shelf Registration
Statement is actually filed with the Commission.
SECTION 2. (a) SHELF REGISTRATION.
(i) FILING; EFFECTIVENESS. No later than thirty (30) days
after the closing of the transactions contemplated by the Stock Purchase
Agreement (the "REQUIRED FILING DATE"), the Company shall prepare and file
with the Commission a "shelf" registration statement (the "SHELF
REGISTRATION STATEMENT") on the appropriate form for an offering to be
made on a continuous basis pursuant to Rule 415 under the Securities Act
(or any successor rule or similar provision then in effect) covering all
of the Registrable Securities. The Company shall use its commercially
reasonable efforts
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to have the Shelf Registration Statement declared effective on or before
the Target Effective Date and to keep such Shelf Registration Statement
continuously effective for a period expiring on the date on which all of
the Registrable Securities cease to be Registrable Securities.
(ii) SUPPLEMENTS; AMENDMENTS. The Company agrees, if
necessary, to supplement or amend the Shelf Registration Statement, as
required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration
Statement or by the Securities Act or as otherwise required by this
Agreement.
(iii) EFFECTIVE REGISTRATION. A registration will not be
deemed to have been effected as a Shelf Registration Statement unless the
Shelf Registration Statement with respect thereto has been declared
effective by the Commission and the Company has complied in all material
respects with its obligations under this Agreement with respect thereto;
PROVIDED, HOWEVER, that if after the Shelf Registration Statement has been
declared effective, the offering of Registrable Securities pursuant to
such Shelf Registration Statement is interfered with by any stop order,
injunction or other order or requirement of the Commission or any other
governmental agency or court, such Shelf Registration Statement will be
deemed not to have been effective during the period of such interference
until the offering of Registrable Securities pursuant to such Shelf
Registration Statement may legally resume. If a registration requested
pursuant to this Section 2 is deemed not to have been effected, then the
Company shall continue to be obligated to effect a registration pursuant
to this Section 2.
(b) DEMAND REGISTRATION RIGHTS. At any time (i)(a) after the Shelf
Registration Statement is no longer effective or (b) a suspension of the
Holder's rights as provided in Section 4(a) exceeds ninety (90) days, and (ii)
upon the affirmative vote of no less than a majority of the issued and
outstanding (excluding treasury stock) Registrable Securities owned by the
Holders at that time (such group of holders the "Majority Holders") and (iii)
provided the aggregate fair market value (to be calculated as the aggregate
number of shares to be subject to an offering multiplied by the average closing
sales price of the Common Stock during the twenty trading days prior to the
applicable date) of the Registrable Securities to be subject to such requested
registration shall equal at least $3 million dollars as of the date of the
notice delivered by the Majority Holders to the Company requesting such Demand
Registration Statement under this Section 2(b), then the Holders shall have the
right to request the Company to prepare and file one or more registration
statements (a "DEMAND REGISTRATION STATEMENT") covering the Registrable
Securities; PROVIDED HOWEVER, if the requested registration pursuant to this
Section 2(b) involves a syndicated underwritten offering that contemplates a
"road show," which requires the Company's executive officers to accompany the
underwriters with their sales efforts, then the aggregate fair market value (to
be calculated as the aggregate number of shares to be subject to an offering
multiplied by the average closing sales price of the Common Stock during the
twenty trading days prior to the applicable date) of the Registrable Securities
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to be subject to such requested registration shall equal at least $5 million
dollars as of the date of the notice delivered by the Majority Holders to the
Company requesting such Demand Registration Statement under this Section 2(b).
The Company covenants and agrees with Purchaser that, upon written request of
such Holders made pursuant to this Section 2(b) (which request shall state the
number of Registrable Securities to be so registered and the intended method of
distribution thereof), the Company shall use its reasonable best efforts to file
a Demand Registration Statement under the Securities Act, to the extent
necessary to permit their sale or other disposition in accordance with the
intended method of distribution specified in the request of such Holders.
The Majority Holders may demand in writing that the Company list, not
earlier than one year following the date hereof, the Registrable Securities on
the principal exchange on which the Company's securities are then listed if so
permitted by applicable law and the regulations of such exchange.
(c) INCIDENTAL REGISTRATION. Whenever the Company proposes to file a
registration statement (other than on Form S-4 or on Form S-8 or on any
successor form relating to shares issuable in connection with any employee
benefit plan (including any option plan) or any transaction of the type to which
Rule 145 of the Act or any successor provision is applicable, or any dividend
reinvestment or direct stock purchase plan for the benefit of the Company's
stockholders), at any time and from time to time (a "REGISTRATION"), it will,
prior to such filing, give thirty (30) days' prior written notice to the Holders
of its intention to do so and, upon the written request of any Holder, given
within fifteen (15) days after the Company provides such notice (which request
shall state the intended method of distribution of such shares), the Company
shall use its reasonable best efforts to cause all such shares which the Company
has been requested to include by any Holder, to be included in the Registration;
PROVIDED that the Company shall have the right to postpone or withdraw any
Registration effected pursuant to this Section 2(c) without obligation to any
Holder. The Company will keep such registration statement effective and current
under the Securities Act permitting the sale of the Registrable Securities
covered thereby for the same period that the registration statement is
maintained effective for other persons (including the Company) selling
thereunder.
In connection with any offering under this Section 2(c) involving an
underwritten offering, if, in the good faith written opinion of the
underwriters, inclusion of all, or part of, the shares which any Holder has
requested to be included would materially or adversely affect such public
offering, then the number of such shares of the Holders to be offered will be
reduced as follows: (i) no Holder of Registrable Securities shall be entitled to
participate in such underwritten offering unless all shares proposed to be sold
by the Company for its own account have been included in such underwritten
offering, and (ii) after the Company has included its proposed shares, the
Limited Partners shall be entitled to include any securities subject to
"piggyback registration rights" pursuant to Section 8.07 of the First Amended
and Restated Agreement of Limited Partnership of Golf Trust of America, L.P., as
amended through and in effect on the date hereof, but including Limited Partners
admitted after the date
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hereof, and (iii) after the Company and the Limited Partners have included their
proposed shares, the Holders shall be entitled to include their Registrable
Securities in an amount up to the amount that such managing underwriter or
underwriters advise may be included therein (as allocated among the Holders pro
rata based on the number of Registrable Securities each Holder has requested to
include therein). In addition, the Company shall not be required to include any
such shares in such underwritten offering unless the Holders thereof accept the
terms of the offering as agreed upon between the Company and the underwriters
selected by it and execute and deliver an underwriting agreement, including such
representations, warranties, covenants, indemnities, opinions and other terms as
are customary from selling shareholders in underwritten offerings.
SECTION 3. REGISTRATION PROCEDURES
In connection with the obligations of the Company to effect or cause the
registration of any Registrable Securities pursuant to the terms and conditions
of this Agreement, the Company shall use its reasonable best efforts to effect
the registration of such Registrable Securities in accordance with the intended
method of distribution thereof as quickly as practicable, and in connection
therewith:
(a) The Company shall prepare and file with the Commission a
Registration Statement on the appropriate form under the Securities Act, which
Registration Statement shall comply as to form in all material respects with the
requirements of the applicable form and include all financial statements
required by the Commission to be filed therewith, and use its reasonable best
efforts to cause such Registration Statement to become effective and remain
effective in accordance with the provisions of this Agreement; PROVIDED,
HOWEVER, that, prior to filing a Registration Statement or Prospectus or any
amendments or supplements thereto, the Company shall furnish to the Holders of
the Registrable Securities covered by such Registration Statement, Holders'
counsel and the managing underwriters, if any, draft copies of all such
documents proposed to be filed, and shall, prior to filing such documents,
review any comments which are submitted by any Holder or its counsel within five
(5) days after delivery of such documents to such Holder by the Company;
PROVIDED, FURTHER, that, except to the extent such comments relate to specific
disclosure regarding such Holder or its proposed method of disposition of the
Securities, the Company shall not be required to incorporate any such comments
into the documents.
(b) The Company shall (i) prepare and file with the Commission such
amendments to such Registration Statement as may be necessary to keep such
Registration Statement effective as provided in this Agreement; (ii) cause the
Prospectus to be amended or supplemented as required and to be filed as required
by Rule 424 or any similar rule that may be adopted under the Securities Act;
(iii) respond as promptly as practicable to any comments received from the SEC
with respect to a Registration Statement or any amendment thereto; and (iv)
comply with the provisions of the Securities Act with respect to the disposition
of all
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securities covered by such Registration Statement during the applicable period
in accordance with the intended method or methods of distribution by the Holder
covered thereby.
(c) The Company shall promptly furnish to any Holder and the
managing underwriters, if any, without charge, such number of conformed copies
of such Registration Statement and any post-effective amendment thereto and such
number of copies of the Prospectus (including each preliminary Prospectus) and
any amendments or supplements thereto, any documents incorporated by reference
therein and such other documents as any such Holder or underwriter may
reasonably request in order to facilitate the public sale or other disposition
of the Registrable Securities being sold by such Holder.
(d) The Company, if necessary, shall, on or prior to the date on
which a Registration Statement is declared effective, (i) use its reasonable
best efforts to register or qualify the Registrable Securities covered by such
Registration Statement under the securities or "blue sky" laws, or obtain
appropriate exemptions therefrom, in such states of the United States as are
reasonably requested by any Holder in writing; (ii) do any and all other acts
and things which may be reasonably necessary or advisable to enable the Holders
of Registrable Securities included in such Registration Statement to consummate
the disposition of such Registrable Securities in accordance with their intended
method of distribution thereof; (iii) use its commercially reasonable efforts to
keep each such state securities or "blue sky" registration or qualification (or
exemption therefrom) effective during the period in which the Company is
required to keep the Registration Statement effective; and (iv) do any and all
other acts or things which may be reasonably necessary or advisable to enable
the Holders of Registrable Securities included in such Registration Statement to
complete the disposition in such jurisdictions of such Registrable Securities in
accordance with their intended method of distribution thereof; PROVIDED,
HOWEVER, that the Company shall not be required (A) to qualify generally to do
business in any jurisdiction or to register as a broker or dealer in such
jurisdiction where it would not otherwise be required to so qualify but for this
Section 3(d), (B) to submit to the general service of process in any such
jurisdiction where it is not otherwise subject to general service of process or
(C) subject itself to taxation in any such jurisdiction where it is not
otherwise subject to taxation.
(e) The Company shall promptly notify each Holder and Holders'
counsel in writing, (i) when a Registration Statement or a Prospectus or any
post-effective amendment or any Prospectus supplement has been filed and, with
respect to a Registration Statement or any post-effective amendment, when the
same has become effective, (ii) of any request by the Commission or any state
securities authority for amendments and supplements to a Registration Statement
and Prospectus or for additional information after the Registration Statement
has become effective, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of a Registration Statement or the initiation or
threatening of any proceedings for that purpose, (iv) of the issuance by any
state securities commission or other regulatory authority of any order
suspending the registration or qualification or exemption from registration or
qualification of any of the Registrable Securities under state securities or
"blue
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sky" laws or the initiation of any proceedings for that purpose, (v) if, between
the effective date of a Registration Statement and the closing of any sale of
Registrable Securities covered thereby, the representations and warranties of
the Company contained in any underwriting agreement, if any, relating to the
offering of such Registrable Securities cease to be true and correct in all
material respects, and (vi) of the happening of any event which requires the
making of any changes in such Registration Statement or Prospectus so that such
Registration Statement or Prospectus will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; and, as promptly as practicable
thereafter, prepare and file an amendment to such Registration Statement with
the Commission and furnish to the Holders, Holders' counsel and any underwriter
a supplement or amendment to such Prospectus so that, as thereafter deliverable
to the purchasers of such Registrable Securities, such Prospectus will not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(f) The Company shall make generally available to its security
holders an earnings statement satisfying the provisions of Section 11(a) of the
Securities Act as soon as practicable after the effective date of a Registration
Statement, which requirement will be deemed to be satisfied if the Company
timely files complete and accurate information on Forms 10-Q, 10-K and 8-K under
the Exchange Act and otherwise complies with Rule 158 under the Securities Act.
(g) The Company shall use its reasonable best efforts to prevent the
issuance of any order suspending the effectiveness of a Registration Statement,
and, if any such order suspending the effectiveness of a Registration Statement
is issued, shall use its reasonable best efforts to obtain the withdrawal of
such order at the earliest possible moment.
(h) The Company shall, if reasonably requested by Holders' counsel
or any Holder, promptly incorporate in a Prospectus supplement or post-effective
amendment such information regarding such Holder, the terms of the disposition
and the plan of distribution as such Holder or Holders' counsel requests to be
included therein, including, without limitation, with respect to the Registrable
Securities being sold by such Holder to any underwriter or underwriters, the
purchase price being paid therefor by such underwriter or underwriters and any
other terms of an underwritten offering of the Registrable Securities to be sold
in such offering, and the Company shall promptly make all required filings of
such Prospectus supplement or post-effective amendment.
(i) The Company shall cooperate with the Holders to facilitate the
timely preparation and delivery of certificates (which shall not bear any
restrictive legends unless required under applicable law) representing
Registrable Securities sold under a Registration Statement to the purchasers
thereof, and enable such Registrable Securities to be in such denominations and
registered in such names as the managing underwriter or underwriters, if
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any, or such Holders may request and keep available and make available to the
Company's transfer agent prior to the effectiveness of such Registration
Statement a supply of such certificates.
(j) The Company shall enter into such customary agreements
(including, if applicable, an underwriting agreement) and take such other
actions as the Holders or the underwriters retained by the Holders participating
in an underwritten public offering, if any, may reasonably request in order to
expedite or facilitate the disposition of Registrable Securities; provided,
however, that such underwriters are reasonably acceptable to the Company. (The
Holders may, at their option, require that any or all of the representations,
warranties and covenants of the Company to or for the benefit of any
underwriters also be made to and for the benefit of the Holders.)
(k) The Company shall promptly make available to each Holder, any
underwriter participating in any disposition of Registrable Securities pursuant
to a Registration Statement, and any attorney, accountant or other agent or
representative retained by any such Holder or underwriter (collectively, the
"INSPECTORS"), all financial and other records, pertinent corporate documents
and properties of the Company (collectively, the "RECORDS"), as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and employees to
supply such Records as are reasonably requested by any such Inspector in
connection with such Registration Statement; PROVIDED, HOWEVER, that such
records, documents or information which the Company determines, in good faith,
to be confidential and notifies such representatives, representative of the
underwriters, special counsel or accountants are confidential, shall be kept
confidential and shall not be disclosed by any Inspector unless (i) subject to
the provisions hereof, the disclosure of such records, documents or information
is necessary to avoid or correct a misstatement or omission in a Registration
Statement or Prospectus, (ii) the release of such records, documents or
information is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction, or (iii) such records, documents or information have
been generally made available to the public; PROVIDED, FURTHER, that the
foregoing inspection and information gathering shall, to the greatest extent
possible, be coordinated on behalf of the Inspectors by one counsel designated
by and on behalf of such Inspectors and reasonably acceptable to the Company.
(l) The Company shall furnish to each Holder of Registrable
Securities included in such offering and to each underwriter, if any, if
requested by such Holder or underwriter, a signed counterpart, addressed to such
Holder or underwriter, of (i) an opinion or opinions of counsel to the Company,
and (ii) a comfort letter or comfort letters from the Company's independent
public accountants, each in customary form and covering matters of the type
customarily covered by opinions or comfort letters, as the case may be.
(m) The Company shall use its best efforts to cause the Registrable
Securities included in a Registration Statement (if the Company and the
Registrable Securities so qualify)
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(i) to be listed on each national securities exchange, if any, on which
securities of such class or series issued by the Company are then listed, or
(ii) if similar securities of the Company are not then listed, to be authorized
for quotation or listing, as applicable, on the National Association of
Securities Dealers, Inc.'s ("NASD") Nasdaq Stock Market ("NASDAQ").
(n) The Company shall cooperate with each Holder and each
underwriter participating in the disposition of Registrable Securities and their
respective counsel in connection with any filings required to be made with the
NASD.
(o) The Company shall reasonably assist each Holder and each
underwriter participating in the disposition of Registrable Securities with the
marketing of such Registrable Securities.
(p) The Company shall, during the period when the Prospectus is
required to be delivered under the Securities Act, file in a timely fashion all
documents required to be filed with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act.
(q) The Company shall maintain a transfer agent and registrar for
all Registrable Securities covered by a Registration Statement not later than
the effective date of such Registration Statement.
(r) If the Registrable Securities are of a class of securities that
is listed on a national securities exchange, the Company shall file copies of
any Prospectus with such exchange to satisfy the requirements of Rule 153 under
the Securities Act so that the Holders shall benefit from the prospectus
delivery procedures described therein.
(s) Upon the written request of any Holder, unless previously filed,
the Company shall promptly file a Form 8-A with the Commission registering the
Preferred Stock under the Exchange Act.
(t) If the Purchaser so elects, the offering of Registrable
Securities pursuant to a Shelf Registration Statement or a Demand Registration
Statement may be in a form of a registration in which the Registrable Securities
are sold to an underwriter for reoffering to the public in a manner requiring
registration under the Securities Act (a "HOLDER'S UNDERWRITTEN OFFERING"). If
the Holders are conducting a Holder's Underwritten Offering, then the Company
agrees to suspend any underwritten offering proposed or being conducted by the
Company (other than a registration by the Company on a Form S-4 or S-8, or
successor or substantially similar forms of (i) an employee stock option, stock
purchase or compensation plan or of securities issued or issuable pursuant to
any plan or (ii) a dividend reinvestment or direct stock purchase plan or (iii)
a transaction of the type to which Rule 145 of the Act or any successor
provision is applicable) until the date that the Holder's Underwritten Offering
is completed.
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In the case of a Shelf Registration Statement, each Holder, upon receipt
of any notice (a "SECTION 3 SUSPENSION NOTICE") of the happening of any event of
the kind described in Section 3(e)(vi), shall forthwith discontinue disposition
of the Registrable Securities pursuant to the Shelf Registration Statement
covering such Registrable Securities until such Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 3(e) or until
such Holder is advised in writing (the "ADVICE") by the Company that the use of
the Prospectus may be resumed, and such Holder has received copies of any
additional or supplemental filings which are incorporated by reference in the
Prospectus, and, if so directed by the Company, such Holder will, and will
request the managing underwriter or underwriters, if any, to deliver to the
Company all copies, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Registrable Securities current at
the time of receipt of such notice. In no event shall such period extend for
longer than ninety (90) days; provided the Company may deliver only two Section
3 Suspension Notices in any twelve-month period without the consent of a
majority in interest of the Holders. In the event that the Company shall give
any Section 3 Suspension Notice, the Company shall use its best efforts and take
such actions as are reasonably necessary to render the Advice and deliver copies
of the supplemental or amended Prospectus as promptly as reasonably practicable.
The Company may require each Holder to furnish to the Company such
information regarding the proposed distribution by such Holder of Registrable
Shares as the Company may from time to time reasonably request in writing and no
Holder shall be entitled to be named as a selling securityholder in any
Registration Statement and no Holder shall be entitled to use the Prospectus
forming a part thereof if such Holder does not provide such information to the
Company.
If any Registration Statement refers to any Holder by name or otherwise as
the holder of any securities of the Company, then such Holder shall have the
right to require the deletion of the reference to such Holder in the event that
such reference to such Holder by name or otherwise is not required by the
Securities Act or any similar federal or state securities or "blue sky" statute
and the rules and regulations thereunder then in force.
SECTION 4. SUSPENSION OF OFFERING.
(a) If the Company determines in its good faith judgment that the
filing of the Shelf Registration Statement under Section 2(a) or the use of any
Prospectus would materially impede, delay or interfere with any pending material
financing, acquisition or corporate reorganization or other material corporate
development involving the Company or any of its subsidiaries, or require the
disclosure of important information which the Company has a material business
purpose for preserving as confidential or the disclosure of which would
materially impede the Company's ability to consummate a significant transaction,
upon written notice of such determination by the Company, the rights of each
Holder to offer, sell or distribute any Registrable Securities pursuant to the
Shelf Registration Statement or to require the Company to take action with
respect to the registration or sale of any Registrable Securities
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pursuant to the Shelf Registration Statement (including any action contemplated
by Section 2 hereof) will be suspended until the date upon which the Company
notifies the Holders in writing (a "DEVELOPMENT SUSPENSION NOTICE" and, together
with a Section 3 Suspension Notice, a "SUSPENSION NOTICE") that suspension of
such rights for the grounds set forth in this Section 4 is no longer necessary,
but, in any event, no such period shall extend for longer than ninety (90) days;
PROVIDED the Company may deliver only two such notices in any twelve-month
period without the consent of a majority in interest of the Holders.
(b) In the case of the registration of any underwritten public offering
proposed by the Company (other than any registration by the Company on Form S-8,
or a successor or substantially similar form, of (i) an employee stock option,
stock purchase or compensation plan or of securities issued or issuable pursuant
to any plan or (ii) a dividend reinvestment plan), each Holder agrees, if
requested in writing by the managing underwriter or underwriters administering
such offering, not to effect any underwritten offering for the resale of
Registrable Securities (or any option or right to acquire Registrable
Securities) during the period commencing on the 30th day prior to the expected
effective date of the registration statement covering such underwritten public
offering or the date on which the proposed offering is expected to commence
(which date shall be stated in such notice) and ending on the date specified by
such managing underwriter in such written request to such Holder, which date
shall not be later than forty-five (45) days after such expected date of
effectiveness or the commencement of the offering, as the case may be.
SECTION 5. REGISTRATION EXPENSES. Any and all expenses incident to the
Company's performance of or compliance with this Agreement, including, without
limitation, all Commission and securities exchange, Nasdaq or NASD registration,
listing and filing fees, all fees and expenses incurred in connection with
compliance with state securities or "blue sky" laws (including reasonable fees
and disbursements of counsel for any underwriters or Holder in connection with
the state securities or "blue sky" qualifications of the Registrable
Securities), printing expenses, messenger and delivery expenses, internal
expenses (including, without limitation, all salaries and expenses of the
Company's officers and employees performing legal or accounting duties), all
expenses for word processing, printing and distributing any Registration
Statement, any Prospectus, any amendments or supplements thereto, any
underwriting agreements and other documents relating to the performance of and
compliance with this Agreement, the fees and expenses incurred in connection
with the listing of the Registrable Securities, the fees and disbursements of
counsel for the Company and of the independent certified public accountants of
the Company (including the expenses of any comfort letters or costs associated
with the delivery by independent certified public accountants of a comfort
letter or comfort letter requested pursuant to Section 3(l)), Securities Act
liability insurance (if the Company elects to obtain such insurance), and the
reasonable fees and expenses of any special experts or other Persons retained by
the Company in connection with any registration (all such expenses being herein
called "REGISTRATION EXPENSES"), will be borne by the Company whether or not the
Shelf Registration Statement to which such expenses relate
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becomes effective. The Company shall not be required to pay underwriters'
discounts, commissions or expenses or stock transfer taxes relating to the
Registrable Securities.
SECTION 6. INDEMNIFICATION AND CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify
and hold harmless, to the full extent permitted by law, each Holder, its
partners, officers, directors, trustees, stockholders, employees, agents and
investment advisers, and each Person who controls such Holder within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act,
together with the partners, officers, directors, trustees, stockholders,
employees, agents and investment advisors of such controlling Person
(collectively, the "CONTROLLING PERSONS"), from and against all losses, claims,
damages, liabilities and expenses (including, without limitation, any legal or
other fees and expenses reasonably incurred by any Holder or any such
Controlling Person in connection with defending or investigating any action or
claim in respect thereof) (collectively, the "DAMAGES") to which such Holder,
its partners, officers, directors, trustees, stockholders, employees, agents and
investment advisers, and any such Controlling Person, may become subject under
the Securities Act or otherwise, insofar as such Damages (or proceedings in
respect thereof) arise out of or are based upon any untrue or alleged untrue
statement of material fact contained in any Registration Statement (or any
amendment thereto) pursuant to which Registrable Securities were registered
under the Securities Act, including all documents incorporated therein by
reference, or are caused by any omission or alleged omission to state therein a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in any Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or are caused by any
omission or alleged omission to state therein a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading; PROVIDED, HOWEVER, that the Company shall not be liable
for Damages to any Holder under this Section 6(a) to the extent that any such
Damages (i) arise out of or are based upon any such untrue statement or omission
which is based upon information relating to such Holder furnished in writing to
the Company by or on behalf of such Holder expressly for use in any such
Registration Statement (or any amendment thereto) or Prospectus (or amendment or
supplement thereto); or (ii) were caused by the fact that such Holder sold
Securities to a Person as to whom it shall be established that there was not
sent or given, or deemed sent or given pursuant to Rule 153 under the Securities
Act, at the time of or prior to the written confirmation of such sale, a copy of
the Prospectus as then amended or supplemented if, and only if, (a) the Company
has previously furnished copies of such amended or supplemented Prospectus to
such Holder or the Company has notified such Holder for the need for an amended
or supplemental Prospectus and (b) such Damages were caused by any untrue
statement or omission or alleged untrue statement or omission contained in the
Prospectus so delivered which was or was to be corrected in such amended or
supplemented Prospectus. In connection with an underwritten offering, the
Company will indemnify the underwriters
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thereof, their officers and directors and each Person who controls such
underwriters (within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act) to the same extent as provided above with
respect to the indemnification of the Holders of Registrable Securities except
with respect to information provided by the underwriter specifically for
inclusion therein.
(b) INDEMNIFICATION BY THE HOLDERS. Each Holder agrees, severally
and not jointly, to indemnify and hold harmless the Company, its directors and
officers and each Person, if any, who controls the Company within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act from
and against all Damages to the same extent as the foregoing indemnity from the
Company to such Holder set forth in Section 6(a), but only to the extent such
Damages arise out of or are based upon any untrue statement of a material fact
contained in any Registration Statement (or any amendment thereto) or Prospectus
(or any amendment or supplement thereto) or are caused by any omission to state
therein a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, which untrue
statement or omission is based upon information relating to such Holder
furnished in writing to the Company by or on behalf of such Holder expressly for
use in any such Registration Statement (or any amendment thereto) or any such
Prospectus (or any amendment or supplement thereto); PROVIDED, HOWEVER, that
such Holder shall not be obligated to provide such indemnity to the extent that
such Damages result from the failure of the Company to amend or take action to
correct or supplement any such Registration Statement or Prospectus in a timely
fashion on the basis of corrected or supplemental information furnished in
writing to the Company by such Holder expressly for such purpose. In no event
shall the liability of any Holder of Registrable Securities hereunder be greater
in amount than the amount of the proceeds received by such Holder upon the sale
of the Registrable Securities giving rise to such indemnification obligation.
(c) INDEMNIFICATION PROCEDURES. In case any proceeding (including
any governmental investigation) shall be instituted involving any Person in
respect of which indemnity may be sought pursuant to either paragraph (a) or (b)
above, such Person (the "INDEMNIFIED PARTY") shall promptly notify the Person
against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing
and the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceedings and shall pay the fees and disbursements of such counsel relating to
such proceeding. The failure of an indemnified party to notify the indemnifying
party with respect to a particular proceeding shall not relieve the indemnifying
party from any obligation or liability (i) which it may have pursuant to this
Agreement if the indemnifying party is not substantially prejudiced by such
failure to so notify it or (ii) which it may have otherwise than pursuant to
this Agreement. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the indemnifying party
and the indemnified party shall have mutually agreed to the retention of such
counsel, or (ii) the indemnifying party fails
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within a reasonable time to assume the defense of such proceeding or fails to
employ counsel reasonably satisfactory to such indemnified party, or (iii) (A)
the named parties to any such proceeding (including any impleaded parties)
include both such indemnified party or an Affiliate of such indemnified party
and any indemnifying party or an Affiliate of such indemnifying party, (B) there
may be one or more defenses available to such indemnified party or any Affiliate
of such indemnified party that are different from or additional to those
available to any indemnifying party or any Affiliate of any indemnifying party
and (C) such indemnified party shall have been advised by such counsel that
there may exist a conflict of interest between or among such indemnified party
or any Affiliate of such indemnified party and such indemnifying party or any
Affiliate of such indemnifying party, in which case, if such indemnified party
notifies the indemnifying party in writing that it elects to employ a single
separate counsel of its choice (other than local counsel) at the reasonable
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense thereof and such counsel shall be at the expense of
the indemnifying party, it being understood, however, that unless there exists a
conflict among indemnified parties, the indemnifying parties shall not, in
connection with any one such proceeding or separate but substantially similar or
related proceedings in the same jurisdiction, arising out of the same general
allegations or circumstances, be liable for more than the reasonable fees and
expenses of one separate firm of attorneys (together with appropriate local
counsel) at any time for such indemnified parties. The indemnifying party shall
not be liable for any settlement of any proceeding effected without its written
consent but, if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify each indemnified party
from and against any loss or liability by reason of such settlement or judgment.
No indemnifying party shall, without the prior written consent of each
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which such indemnified party is a party, and indemnity could have
been sought hereunder by such indemnified party, unless such settlement includes
an unconditional release of such indemnified party from all liability on all
claims that are the subject matter of such proceeding with no payment by such
indemnified party of consideration in connection with such settlement.
(d) CONTRIBUTION. If the indemnification from the indemnifying party
provided for in this Section 6 is found, pursuant to a final judicial
determination not subject to appeal, to be unavailable to an indemnified party
hereunder or insufficient in respect of any Damages incurred by such indemnified
party, then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the Damages paid or payable by such indemnified party
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party and the indemnified parties in connection with the actions or
omissions that resulted in such Damages, 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 or omission in question, including any untrue or alleged untrue statement
of a material fact or the 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
-15-
opportunity to correct or prevent such action. The amount paid or payable by a
party as a result of the Damages referred to above shall be deemed to include,
subject to the limitations set forth in Section 6(c), any legal or other
expenses reasonably incurred by such party in connection with any investigation
or proceeding.
The parties hereto agree that it would not be just or equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 6(d), no underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities underwritten by it and distributed to
the public were offered to the public (less any underwriting discounts or
commissions) exceeds the amount of any damages which such underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission, and no selling Holder shall be
required to contribute any amount in excess of the amount by which the total net
proceeds received by such selling Holder with respect to Registrable Securities
sold by such selling Holder exceeds the amount of any damages which such selling
Holder has otherwise been required to pay by reason of such untrue statement or
alleged untrue statement or omission or alleged omission. Each Holder's
obligation to contribute pursuant to this Section 6(d) is several and not joint
and shall be determined by reference to the proportion that the proceeds of the
offering received by such Holder bears to the total proceeds of the offering
received by all the Holders. No person guilty of fraudulent misrepresentation
(within the meaning of Section II (f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 6 are not exclusive
and shall not limit any rights or remedies that may otherwise be available to
any indemnified party at law or in equity.
Notwithstanding the foregoing, if indemnification is available under
paragraph (a) or (b) of this Section 6, the indemnifying parties shall indemnify
each indemnified party to the full extent provided in such paragraphs without
regard to the relative fault of said indemnifying party or indemnified party or
any other equitable consideration provided for in this Section 6(d).
SECTION 7. RULE 144. The Company covenants that it will file any reports
required to be filed by it under the Securities Act and the Exchange Act, and
the rules and regulations adopted by the Commission thereunder (or, if the
Company is not required to file such reports, it will, upon the request of any
Holder, make publicly available other information so long as necessary to permit
sales of the Registrable Securities under Rule 144 under the Securities Act),
and it will take such further action as any Holder may request, all to the
extent required from time to time to enable such Holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (a) Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or (b) any successor rule or similar
provision or regulation hereafter adopted by the Commission. Upon the request of
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any Holder, the Company will deliver to such Holder a written statement as to
whether it has complied with such requirements.
SECTION 8. RULE 144A. The Company covenants that it will file all reports
required to be filed by it under the Securities Act and the Exchange Act, and
the rules and regulations adopted by the Commission thereunder (or if the
Company is not required to file such reports, it will, upon the request of any
Holder, make available other information so long as necessary to permit sales of
the Registrable Securities pursuant to Rule 144A under the Securities Act), and
it will take such further action as any Holder may request, all to the extent
required from time to time to enable such Holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144A, as such rule may be amended from time to
time, or (b) any successor rule or similar provision or regulation hereafter
adopted by the Commission.
SECTION 9. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company has not entered into nor
will the Company on or after the date of this Agreement enter into any agreement
which conflicts with the rights granted to the Holders of Registrable Securities
in this Agreement. The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders of
the Company's other issued and outstanding securities under any such agreements.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of Holders
of at least a majority in interest of the outstanding Registrable Securities
affected by such amendment, modification, supplement, waiver or consent;
PROVIDED, HOWEVER, that, no amendment, modification, supplement, waiver or
consent to any departure from the provisions of Section 4 hereof (other than any
immaterial amendment, modification, supplement, waiver or consent) shall be
effective as against any Holder of Registrable Securities unless consented to in
writing by such Holder.
(c) NOTICES. Except as otherwise provided in this Agreement, notices
and other communications under this Agreement shall be in writing and shall be
sent by facsimile, delivered or mailed by registered or certified mail, return
receipt requested, or by a nationally recognized overnight courier, postage
prepaid, addressed, (a) if to the Holder, at the facsimile number or address set
forth on the signature page hereto or such other facsimile number or address as
the Holder shall have furnished to the Company in writing or, if not otherwise
provided, in the stock register of the Company, or (b) if to the Company, at its
facsimile number or address set forth on the signature page hereto, or at such
other address the Company shall have furnished to the Holder and each such other
holder in writing.
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All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five (5) Business
Days after being deposited in the mail, postage prepaid, if mailed; by confirmed
receipt of transmission, if telecopied; and on the next Business Day if timely
delivered to a courier guaranteeing overnight delivery.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders. If any transferee of any Holder shall
acquire Registrable Securities in any manner, whether by operation of law or
otherwise, such Registrable Securities shall be held subject to all of the terms
of this Agreement, and by taking and holding such Registrable Securities such
person shall be conclusively deemed to have agreed to be bound by and to perform
all of the terms and provisions of this Agreement and such person shall be
entitled to receive the benefits hereof.
(e) 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.
(f) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York without regard to
principles or rules of conflicts of law.
(h) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be in any way
impaired thereby, it being intended that all of the rights and privileges of the
Holders shall be enforceable to the fullest extent permitted by law.
(i) ENTIRE AGREEMENT. This Agreement is intended by the parties as a
final expression of their agreement and is intended to be the complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
(j) FURTHER ASSURANCES. Each party shall cooperate and take such
action as may be reasonably requested by another party in order to carry out the
provisions and purposes of this Agreement and the transactions contemplated
hereby.
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(k) REMEDIES. In the event of a breach or a threatened breach by any
party to this Agreement of its obligations under this Agreement, any party
injured or to be injured by such breach will be entitled to specific performance
of its rights under this Agreement or to injunctive relief, in addition to being
entitled to exercise all rights provided in this Agreement and granted by law.
The parties agree that the provisions of this Agreement shall be specifically
enforceable, it being agreed by the parties that remedies at law for violations
hereof, including monetary damages, are inadequate and that the right to object
in any action for specific performance or injunctive relief hereunder on the
basis that a remedy at law would be adequate is waived.
[SIGNATURE PAGE TO FOLLOW IMMEDIATELY]
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IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
GOLF TRUST OF AMERICA, INC.
By: /s/ W. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
-------------------------------------
Name: W. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
Title: President and CEO
Notice Information:
▇▇ ▇▇▇▇▇ ▇▇▇▇▇'▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: W. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
O'Melveny & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
AEW TARGETED SECURITIES FUND, L.P.
By: AEW TSF, L.L.C., its General Partner
By: AEW TSF, INC., its Managing Member
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Notice Information:
c/o AEW Capital Management, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
J. ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
Battler ▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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