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EXHIBIT 10.72
TOWER REALTY TRUST, INC.
AND
THE INVESTORS NAMED HEREIN
STOCK PURCHASE AGREEMENT
Dated as of September 19, 1997
$10,000,000
of
Common Stock
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TABLE OF CONTENTS
Page
SECTION 1 AUTHORIZATION OF COMMON STOCK....................................1
SECTION 2 ISSUANCE OF COMMON STOCK.........................................1
2.1 Purchase and Sale of Common Stock.......................1
2.2 Purchase Price..........................................1
2.3 Transfer Taxes..........................................2
2.4 Rights of Holders.......................................2
2.5 Lockup..................................................2
SECTION 3 THE CLOSING......................................................2
SECTION 4 REPRESENTATIONS OF THE COMPANY...................................2
4.1 Organization............................................2
4.2 Authorization...........................................3
4.3 Enforceable Obligations.................................3
4.4 Issuance of Securities..................................3
SECTION 5 REPRESENTATIONS AND WARRANTIES OF THE INVESTOR...................3
5.1 Authorization...........................................3
5.2 Purchase Entirely for Own Account.......................4
5.3 Accredited Investor.....................................4
5.4 Other Representations and Warranties....................4
SECTION 6 CONDITIONS TO THE OBLIGATIONS OF THE INVESTOR...........5
SECTION 7 CONDITION TO THE OBLIGATIONS OF THE COMPANY.............7
SECTION 8 TRANSFERS...............................................7
8.1 Limitations on Transfer.................................7
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8.2 Legends.................................................7
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8.3 Rule 144A Information...................................7
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SECTION 9 MISCELLANEOUS...........................................8
9.1 Confidentiality.........................................8
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9.2 Brokers.................................................8
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9.3 Entire Agreement........................................8
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9.4 Amendments and Waivers..................................8
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9.5 Time....................................................9
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9.6 Section Headings........................................9
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9.7 Notices.................................................9
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9.8 Counterparts............................................9
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9.9 Governing Law...........................................9
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9.10 Consent to Jurisdiction.................................9
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9.11 Definitions.............................................9
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9.12 Assignments............................................12
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INDEX OF EXHIBITS
Exhibit A Certificate of Incorporation of Tower Realty Trust, Inc.
Exhibit B Form of Registration Rights Agreement
Exhibit C Form of Lock-Up Agreement
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This STOCK PURCHASE AGREEMENT (this "Agreement") is made as of
September 19, 1997 among TOWER REALTY TRUST, INC., a Maryland corporation with
its principal place of business located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ (the "Company"), as issuer, and Carlyle Realty Partners, L.P., a
Delaware limited partnership ("Realty"), Carlyle Realty Qualified Partners,
L.P., a Delaware limited partnership ("Realty Qualified"), Carlyle Realty
Partners Sunrise, L.P., a Delaware limited partnership ("Sunrise") and Carlyle
Realty Coinvestment, L.P., a Delaware limited partnership ("Coinvestment"; each
of Realty, Realty Qualified, Sunrise and Coinvestment being referred to herein
as an "Investor" and collectively as the "Investors"), each of which has its
principal place of business located at c/o Carlyle Realty, L.P., ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇. The
definitions of certain capitalized terms used herein are set forth in Section
9.11.
In consideration of the mutual promises and agreements
contained herein, the parties hereto agree as follows:
SECTION 1 AUTHORIZATION OF COMMON STOCK.
On or prior to the Closing Date, the Company shall amend its
certificate of incorporation, a copy of which is attached as Exhibit A (the
"Certificate of Incorporation"), to increase its authorized capitalization from
1,000 shares of Common Stock to Two Hundred Fifty Million (250,000,000) shares
of Common Stock.
SECTION 2 ISSUANCE OF COMMON STOCK.
2.1 Purchase and Sale of Common Stock. Subject to the terms and
conditions of this Agreement, the Company will issue and sell to the Investors,
and the Investors will purchase at the Closing, the number of shares of Common
Stock determined by dividing $10,000,000 by the price per share at which shares
of the Company's Common Stock are offered to the public in the Initial Public
Offering. The allocation of the number of shares of Common Stock to be purchased
by each Investor shall be determined by the Investors and notified to the
Company within 15 Business Days following the date hereof and in no event later
than 5 Business Days prior to the Closing Date (defined in Section 3).
2.2 Purchase Price. The purchase price for each share of Common Stock
to be purchased by the Investors shall be equal to the price per share at which
shares of the Company's Common Stock are offered to the public in the Initial
Public Offering. The aggregate purchase price (the "Purchase Price") for shares
purchased pursuant to this Agreement is Ten Million ($10,000,000) Dollars.
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2.3 Transfer Taxes. The Company shall pay any and all documentary stamp
or similar issue or transfer taxes payable in respect of the issue or delivery
of any of the shares of Common Stock to be acquired by the Investors.
2.4 Rights of Holders. The Common Stock to be acquired by the Investors
shall have the rights, restrictions, privileges and preferences set forth in the
Certificate of Incorporation, as the same may be amended by any amendment
thereto. In addition, holders of the shares of Common Stock to be issued to the
Investors pursuant to the terms of this Agreement (or any transferee of the
Investors) will have the registration rights set forth in the Registration
Rights Agreement substantially in the form attached hereto as Exhibit B.
2.5 Lock-up. The Investors will enter into an agreement substantially
in the form attached hereto as Exhibit C (the "Lock-up Agreement") with the
underwriters for the Initial Public Offering agreeing not to sell or transfer
any shares of Common Stock acquired by the Investors hereunder for one year from
the Closing Date except as permitted by such agreement (the "Lock-up Period").
Notwithstanding the terms set forth in Exhibit C, the Lock-up Agreement entered
into by the Investors shall provide for substantially similar restrictions on
transfer as those set forth in the MSAM Lock-up Agreement (as defined in Section
6 (f)).
SECTION 3 THE CLOSING.
The closing (the "Closing") of the purchase and sale of the
Common Stock contemplated by this Agreement shall take place at the same
location, on the same date and at the same time as the closing of the Initial
Public Offering. The Company will deliver to the Investors at least three (3)
Business Days prior to the date of the closing of the Initial Public Offering a
notice specifying the place, date, and time of such closing. The date of the
Closing is hereinafter referred to as the "Closing Date". At the Closing, the
Company shall deliver to the Investors one or more certificates representing the
number of shares of Common Stock being purchased, registered in the names and
share amounts previously notified in writing by the Investors to the Company,
against payment to the Company of the Purchase Price, by wire transfer, check or
other method acceptable to the Company. The Company agrees to make available to
the Investors for inspection not less than two (2) Business Days prior to the
Closing, the certificates representing the shares of Common Stock to be acquired
by the Investors. If on the Closing Date any of the conditions specified in
Section 6 shall have not been fulfilled, each Investor shall, at its election,
be relieved of all of its obligations under this Agreement to purchase the
Common Stock without thereby waiving any other rights it may have by reason of
such failure or such nonfulfillment.
SECTION 4 REPRESENTATIONS OF THE COMPANY.
The Company represents and warrants to each Investor as follows:
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4.1 Organization. The Company is duly organized, validly existing and
in good standing under the laws of the jurisdiction of its formation with all
requisite power and authority, and all necessary licenses and permits, to own
and lease its properties and assets and to conduct its business as presently
conducted and as proposed to be conducted by it. The Company is duly qualified
to do business and is in good standing in all states where the conduct of its
business or the ownership or leasing of property requires such qualification
except where the failure to be so qualified would not have a Material Adverse
Effect.
4.2 Authorization. The Company has the right, power and authority to
execute, deliver and perform this Agreement and the Registration Rights
Agreement. The Company has taken all corporate action necessary to authorize the
execution and delivery of this Agreement and the Registration Rights Agreement
and to perform its obligations contemplated hereunder and thereunder.
4.3 Enforceable Obligations. This Agreement and the Registration Rights
Agreement have been duly executed and delivered by the Company and are its
legal, valid and binding obligations, enforceable against it in accordance with
their terms except as such enforceability may be limited under (i) applicable
bankruptcy, insolvency, reorganization or other similar laws affecting the
rights of creditors generally, and (ii) general principles of equity.
4.4 Issuance of Securities. The issuance and delivery of the shares of
Common Stock issuable to such Investor on the Closing Date have been duly
authorized by all necessary corporate action on the part of the Company, except
for the filing of the amendment to the Certificate of Incorporation contemplated
under Section 1. The shares of Common Stock issuable to the Investor on the
Closing Date, when issued as contemplated hereunder, will be duly and validly
authorized and issued, and fully paid and non-assessable and free and clear of
any liens, claims or encumbrances except as contemplated hereby.
4.5 Material Misstatements. The Company's registration statement on
Form S-11 (the "Registration Statement") prepared and filed in connection with
the Initial Public Offering as of the date of effectiveness of the Registration
Statement does not, and the prospectus included in the Registration Statement as
of its date, does not, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
SECTION 5 REPRESENTATIONS AND WARRANTIES OF THE INVESTOR.
Each Investor hereby represents and warrants that:
5.1 Authorization. Each Investor has full power and authority to enter
into this Agreement and this Agreement constitutes its valid and legally binding
obligation, enforceable in accordance with its terms except as such
enforceability may be limited under (i) applicable
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bankruptcy, insolvency, reorganization or other similar laws affecting the
rights of creditors generally, and (ii) general principles of equity.
5.2 Purchase Entirely for Own Account. The Common Stock to be acquired
by each Investor will be acquired for investment for Investor's own account, not
as a nominee or agent, and not with a view to the resale or distribution of any
part thereof, and the Investor has no present intention of selling, granting any
participation in, or otherwise distributing the same.
5.3 Accredited Investor. As of the Closing, the Investor will be an
"institutional accredited investor" within the meaning of Rule 501(a)(1), (2),
(3) or (7) of Regulation D, under the Securities Act, as presently in effect.
5.4 Other Representations and Warranties.
(a) The Investor, by reason of its business and financial
experience:
(i) has such knowledge sophistication and experience
in financial and business matters and in making investment decisions of
this type that it is capable of evaluating the merits and risks of and
of making an informed investment decision with respect to an investment
in the Common Stock;
(ii) is capable of protecting its own interest or has
engaged representatives or advisors to assist it in protecting its
interests; and
(iii) is capable of bearing the economic risk of
such investment.
(b) (i) The Investor understands that an investment
in the Company involves substantial risks.
(ii) The Investor has been given the opportunity
to make an investigation of the proposed activities of the Company.
(iii) The Investor has been afforded the
opportunity to obtain any additional information requested by it.
(iv) The Investor has had an opportunity to ask
questions of and receive answers from representatives of the Company concerning
the Company and its proposed activities and the terms and conditions of an
investment in the Common Stock.
(c) The Investor was not formed for the specific purpose
of acquiring an interest in the Company.
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(d) The Investor acknowledges that:
(i) the Common Stock to be issued to the Investor has
not been registered under the Securities Act or state securities laws
by reason of a specific exemption or exemptions from registration under
the Securities Act and applicable state securities laws and such Common
Stock will bear a legend to such effect;
(ii) the Company's reliance on such exemptions is
predicated in part on the accuracy and completeness of the
representations and warranties of the Investor contained herein;
(iii) the Common Stock to be issued to the Investor
may not be resold or otherwise distributed unless registered under the
Securities Act and applicable state securities laws, or unless an
exemption from registration is available;
(iv) there is no public market for the Common
Stock; and
(v) other than as set forth in this Agreement and the
Registration Rights Agreement, the Company has no obligation or
intention to register the Investor's Common Stock under the Securities
Act or any state securities laws or to take any action that would make
available any exemption from the registration requirements of such
laws.
(e) Carlyle Realty, L.P. is a Delaware limited partnership
(the "General Partner") and the sole general partner of each of the Investors.
The General Partner on behalf of each of the Investors has the authority to make
and has made the investment decision to purchase the Shares of Common Stock
offered under this Agreement.
SECTION 6 CONDITIONS TO THE OBLIGATIONS OF THE INVESTORS.
The obligation of the Investors to purchase the Common Stock
at the Closing is subject to the satisfaction of each of the following
conditions on or before the Closing Date:
(a) Accuracy of Representations and Warranties. Each
representation and warranty contained in Section 4 shall be true and correct in
all material respects on and as of such Closing Date with the same effect as
though such representation and warranty had been made on and as of such date.
(b) Performance. The Company shall have performed and complied
with all agreements and conditions contained in this Agreement required to be
performed or complied with by the Company prior to or at the Closing.
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(c) Documents. The Company shall have delivered to the
Investors the following:
(i) Certificates representing the number of
shares of Common Stock to be purchased by the Investors at the Closing;
(ii) A copy of the Certificate of Incorporation,
together with all amendments thereto, of the Company certified by the
Secretary of State of the State of Maryland;
(iii) A certificate duly executed on behalf of the
Company by its Secretary or an Assistant Secretary certifying as to the
incumbency and signatures of the each officer of the Company authorized
to execute and deliver the documents and instruments required to be
delivered by the Company in connection with this Agreement and the
Registration Rights Agreement and to which is attached copies,
certified to be true, correct and complete and in full force and effect
of (A) the by-laws of the Company and (B) the resolutions of the Board
of Directors of the Company adopted in connection with the Initial
Public Offering, including, without limitation, those resolutions
authorizing an amendment to the Certificate of Incorporation to
increase the authorized capital stock of the Company;
(iv) A certificate duly executed by the Chief
Executive Officer of the Company certifying as of the Closing Date as
to each of the matters set forth in Section 6 (a) and (b);
(v) Good Standing Certificate for the Company from
the Secretary of State of its jurisdiction of formation and each other
jurisdiction in which it is required to be qualified to conduct
business; and
(vi) A copy of the Company's registration statement
on Form S-11, as declared effective by the Securities and Exchange
Commission (the "Commission"), a copy of the Company's final prospectus
used in connection with the Initial Public Offering, a fully executed
copy of the underwriting agreement entered into by the Company with the
underwriters for the Initial Public Offering, and a copy of all closing
documents delivered under such underwriting agreement at the closing of
the Initial Public Offering.
(d) Initial Public Offering. The closing of the Initial Public
Offering and the transactions contemplated by the Consent shall have occurred.
(e) Legal Opinion. The Investors shall have received from
counsel for the Company, an opinion dated the Closing Date opining to such
matters described in Section 4.4. In rendering such opinion, such counsel may
rely, as to matters of fact, to the extent such counsel
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deems proper, on certificates of responsible officers of the Company and public
officials. Such opinion may include customary and reasonable assumptions and
qualifications that are acceptable to the Investors and their counsel.
(f) Lock-up Release The Company shall cause the underwriters
of the Initial Public Offering to deliver a letter addressed to the Investors at
or prior to the Closing that will provide, in pertinent part, that, in the event
such underwriters release those certain investment funds advised by ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Asset Management Inc. ("MSAM") from the restrictions on transfer set
forth in the one-year lock-up agreement (the "MSAM Lock-up Agreement") entered
into by MSAM on behalf of such investors with respect to the Common Stock held
by such investors on the date of the Closing of the Initial Public Offering
hereof, then the Investors shall be immediately released from the restrictions
on transfer set forth in the Lock-up Agreement.
SECTION 7 CONDITION TO THE OBLIGATIONS OF THE COMPANY.
The obligations of the Company under Section 3.1 of this
Agreement are subject to the condition that (i) the Company receives the
purchase price for the Common Stock purchased pursuant to this Agreement and
(ii) the representations and warranties of the Investors contained in Section 5
shall be true and correct in all material respects on and as of the applicable
Closing Date with the same effect as though such representations and warranties
had been made on and as of that date.
SECTION 8 TRANSFERS.
8.1 Limitations on Transfer. Each Investor agrees not to transfer all
or a portion of the Common Stock acquired pursuant to the terms of this
Agreement until after the Lock-up Period except as permitted by the Lock-Up
Agreement, and will transfer such Common Stock thereafter, only if such Common
Stock has first been registered under the Securities Act or such transfer is
made pursuant to an available exemption from such registration.
8.2 Legends. It is understood that the certificates evidencing the
Common Stock acquired by each Investor under the terms of this Agreement shall
bear a legend referencing the ownership limitation set forth in the Certificate
of Incorporation, required by the Maryland General Corporation law and shall
also bear the following legend:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or the
securities laws of any state, and neither the securities nor any
interest therein may be sold, transferred, pledged or otherwise
disposed of in the absence of such registration or an exemption
therefrom."
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The foregoing legend shall be removed from the certificates
representing any Common Stock, at the request of the holder thereof, at such
time as they become eligible for resale pursuant to Rule 144(k) under the
Securities Act or have been registered under the Securities Act.
8.3 Rule 144A Information. The Company shall, at all times during which
it is neither subject to the reporting requirements of Section 13 or 15(d) of
the Exchange Act nor exempt from reporting pursuant to Rule 12g3-2(b) under the
Exchange Act, upon the written request of any Investor, provide in writing to
such Investor and to any prospective transferee of any Common Stock held by the
Investor, the information concerning the Company described in Rule 144A(d)(4)
under the Securities Act.
SECTION 9 MISCELLANEOUS.
9.1 Confidentiality. (a) Each Investor agrees that it will keep
confidential and will not disclose or divulge any confidential, proprietary or
secret information, including the Company's plan to conduct an Initial Public
Offering, which the Investor may obtain from the Company pursuant to financial
statements, reports and other materials disclosed by the Company in connection
with this Agreement, or pursuant to visitation or inspection rights granted to
the Investor, unless such information is known, or until such information
becomes known, to the public; provided, however, that the Investor may disclose
such information (i) to its directors, officers, attorneys, accountants,
consultants, investment and financing sources, and other professionals to the
extent necessary to obtain their services in connection with its investment in
the Company, (ii) to any Affiliate of the Investor or (iii) as required by
applicable law or regulation, court or administrative order, or any listing or
trading agreement concerning the Company.
(b) The Company agrees that it will keep confidential and not
disclose or divulge the terms of this Agreement and the Registration Rights
Agreement to any other Person; provided, however, that the Company may disclose
such terms (i) to the officers and directors of the Company, or its attorneys,
accountants, consultants, and other professionals to the extent necessary to
obtain their services in connection with this Agreement or the Initial Public
Offering or (ii) as required by applicable law or regulation, court or
administrative order, or any listing or trading agreement concerning the
Company, including in connection with the Initial Public Offering.
9.2 Brokers. The Company and each Investor each (i) represents and
warrants to the other party hereto that it has retained no finder or broker in
connection with the transactions contemplated by this Agreement, and (ii) will
indemnify and save the other party harmless from and against any and all claims,
liabilities or obligations with respect to brokerage or finders' fees or
commissions, or consulting fees in connection with the transactions contemplated
by this
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Agreement asserted by any person on the basis of any statement or representation
alleged to have been made by such indemnifying party.
9.3 Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings relating to such
subject matter.
9.4 Amendments and Waivers. Except as otherwise expressly set forth in
this Agreement, any term of this Agreement may be amended and the observance of
any term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), with the written consent of
the Company and each Investor. No waivers of or exceptions to any term,
condition or provision of this Agreement, in any one or more instances, shall be
deemed to be, or construed as, a further or continuing waiver of any such term,
condition or provision.
9.5 Time. Time shall be of the essence in this Agreement.
9.6 Section Headings. The section headings are for the convenience of
the parties and in no way alter, modify, amend, limit, or restrict the
contractual obligations of the parties.
9.7 Notices. All notices or other communications given or made
hereunder shall be in writing and shall be deemed effectively given on the date
of delivery or refusal, if delivered personally or delivered by certified mail
return receipt requested, to the parties at the addresses set forth on the
signature pages of this Agreement, or at such other place as the parties may
designate by written notice from time to time.
9.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which taken together
shall constitute one Agreement.
9.9 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
9.10 Consent to Jurisdiction. Each of the Company and the Investors
irrevocably submits to the exclusive jurisdiction of (i) the Supreme Court of
the State of New York located in New York County, City of New York and (ii) the
United States District Court for the Southern District of New York, for the
purposes of any suit, action or other proceeding relating to this Agreement and
the Registration Rights Agreement or any of the transactions contemplated hereby
or thereby. Each of the Company and the Investors agrees to commence any action,
suit or proceeding relating hereto either in the United States District Court
for the Southern District of New York or, if such suit, action or proceeding may
not be brought in such court for jurisdictional reasons, in the Supreme Court of
the State of New York located in New York County, City of New York. Each of the
Company and the Investors irrevocably and unconditionally waives any
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objection to the laying of venue of any action, suit or proceeding relating to
this Agreement and the Registration Rights Agreement and any of the transactions
contemplated hereby or thereby in (i) the Supreme Court of the State of New York
located in New York County, City of New York or (ii) the United States District
Court for the Southern District of New York and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
9.11 Definitions.
(a) As used in this Agreement, the following terms shall have
the meaning specified below:
"Affiliate" of any Person means (i) any person that, directly or
indirectly, is in Control of, is Controlled by, or is under common Control with
such person or (ii) any person who is a director or officer (A) of such person,
(B) of any subsidiary of such person or (C) of any person described in clause
(i) above.
"Agreement" is defined in the preamble.
"Bankruptcy Law" means Title 11, of the United States Code, or any
similar federal or state law for the relief of debtors.
"Business Day" means each day other than a Saturday, a Sunday or any
other day on which banking institutions in the State of New York (or such other
location as the Company shall notify the Investors is its principal place of
business) are authorized or obligated by law or executive order to be closed.
"Certificate of Incorporation" is defined in Section 1.
"Closing" is defined in Section 3.
"Closing Date" is defined in Section 3.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the Company's common stock, $0.01 par value.
"Company" is defined in the preamble.
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"Consent" means that Consent of Partner, dated September 19, 1997,
executed and delivered by 2800 ▇▇▇▇▇▇▇, Inc. and Carlyle-North Central Partners,
L.P. regarding the transfer of interests in 2800 Associates, L.P., a Delaware
limited partnership.
"Control" means the power, direct or indirect, to direct or cause the
direction of the management and policies of a Person whether by contract or
otherwise; and the terms "Controlling" and "Controlled" have meanings
correlative to the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means U.S. generally accepted accounting principles.
"Initial Public Offering" means the initial public offering of Common
Stock by the Company proposed to be lead managed by ▇▇▇▇▇▇▇ ▇▇▇▇▇.
"Investor" is defined in the preamble.
"Lock-up Period" is defined in Section 2.5.
"Material Adverse Effect" means any (i) adverse effect whatsoever upon
the validity or enforceability of this Agreement or the Registration Rights
Agreement or any of the transactions contemplated hereby or thereby or (ii)
material adverse effect upon the properties, business, prospects or condition
(financial or otherwise) of the Company.
"▇▇▇▇▇▇▇ ▇▇▇▇▇" means ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated.
"Person" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"Purchase Price" is defined in Section 2.2.
"Registration Rights Agreement" means the Registration Rights
Agreement, in substantially the form attached as Exhibit B, to be entered into
among the Company and the Investor.
"Securities Act" means the Securities Act of 1933, as amended.
"Underwriting Agreement" means the underwriting agreement entered into
by the Company with its underwriters, including ▇▇▇▇▇▇▇ ▇▇▇▇▇, in connection
with the Company's Initial Public Offering.
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(b) In this Agreement the singular includes the plural and the plural
the singular; words importing any gender include the other genders; references
to statutes are to be construed as including all statutory provisions
consolidating, amending or replacing the statute referred to; references to
"writing" include printing, typing, lithography and other means of reproducing
words in a visible form; references to agreements and other contractual
instruments shall be deemed to include all amendments thereto or changes therein
entered into in accordance with their respective terms but only to the extent to
which such amendments or changes are not prohibited by the terms of this
Agreement; references to persons include their permitted successors and assigns;
"including" means 'including, without limitation'; "or" is not exclusive; "day"
means a calendar day unless otherwise specified; and an accounting term not
otherwise defined has the meaning assigned to it, and all determinations
involving any such term required to be made herein shall be made, in accordance
with GAAP.
(c) For purposes of Section 4 of this Agreement, references to the
knowledge of the Company shall be limited to the knowledge of each of ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇▇▇.
9.12 Assignments. This Agreement shall inure to the benefit of and be
binding upon the parties and their successors and permitted assigns. This
Agreement may not be assigned without the prior written consent of the other
party, provided however, an Investor may assign this Agreement to any entity
Controlled by the Investor upon 5 Business Days prior written notice to the
Company, provided that such assignee becomes a party to this Agreement and
complies with each representation and warranty herein including, without
limitation, Section 5.4.
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IN WITNESS WHEREOF, this Purchase Agreement has been executed
this 19th day of September, 1997.
ISSUER:
TOWER REALTY TRUST, INC.
By: /s/▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman, Chief Executive Officer and President
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
INVESTORS:
CARLYLE REALTY PARTNERS, L.P.,
By: Carlyle Realty, L.P., its general partner
By: DBD Investors III, L.L.C., its general partner
By: /s/ ▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
Title: Managing Director
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇.▇.
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
CARLYLE REALTY QUALIFIED PARTNERS, L.P.,
By: Carlyle Realty, L.P., its general partner
By: DBD Investors III, L.L.C., its general partner
By: /s/ ▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
Title: Managing Director
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇.▇.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
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CARLYLE REALTY PARTNERS SUNRISE, L.P.,
By: Carlyle Realty, L.P., its general partner
By: DBD Investors III, L.L.C., its general partner
By:/s/ ▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
---------------------
Name:▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
Title:Managing Director
Address:1001 Pennsylvania Ave, N.W.
Suite 220 South
Washington D.C. 20004-2505
CARLYLE REALTY COINVESTMENT, L.P.,
By: Carlyle Realty, L.P., its general partner
By: DBD Investors III, L.L.C., its general partner
By:/s/ ▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
Title:Managing Director
▇▇▇▇▇▇▇:▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇-▇▇▇▇
Payment Instructions:
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EXHIBIT A
19
STATE OF MARYLAND
515755
STATE DEPARTMENT OF
ASSESSMENTS AND TAXATION
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
DATE: MARCH 21, 1997
THIS IS TO ADVISE YOU THAT THE ARTICLES OF INCORPORATION FOR TOWER
REALTY TRUST, INC.
WERE RECEIVED AND APPROVED FOR RECORD ON MARCH 21, 1997 AT 10:04 AM.
FEE PAID: 99.00
[SEAL] ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇
CHARTER SPECIALIST
20
ARTICLES OF INCORPORATION
OF
TOWER REALTY TRUST, INC.
THIS IS TO CERTIFY THAT:
FIRST: The undersigned, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, whose address is c/o ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
being at least eighteen (18) years of age, does hereby form a corporation under
the general laws of the State of Maryland.
SECOND: The name of the corporation (which is hereinafter called the
"Corporation") is:
Tower Realty Trust, Inc.
THIRD: The Corporation is formed for the purpose of carrying on any lawful
business. Subject to, and not in limitation of the preceding sentence, the
Corporation intends to engage in business as a real estate investment trust (a
"REIT") qualifying as such under Sections 856 through 860 of the Internal
Revenue Code of 1986, as amended, or any successor statute (the "Code").
FOURTH: The address of the principal office of the Corporation in this
State is c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
FIFTH: The name of the resident agent of the Corporation is ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇, Esq. c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Intersoll, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The resident agent is a citizen of and resides in the
State of Maryland.
SIXTH: The total number of shares of stock which the Corporation has
authority to issue is 1,000 shares, par value $.01 per share, all of one class.
SEVENTH: The Corporation shall have a Board of Directors consisting of two
directors unless the number is increased or decreased in accordance with the
Bylaws of the Corporation. At least one director of the Corporation shall be
independent, as such term is defined below. However, the number of directors
shall never be less than the minimum number required by the Maryland General
Corporation Law. The initial directors are:
March 21, 1997
/s/▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
21
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
A person qualifies as an "independent" director if such person (i) does not
have any direct or material indirect economic interest in the Corporation, any
affiliate of the Corporation or any person or entity with which the Corporation
has any material contractual relationship; and (ii) does not have any
connection to the Corporation or to any affiliate of the Corporation as an
officer, director, employee, promoter, underwriter, trustee or
person performing similar functions, and (iii) does not have any family
relative that is a person covered by (i) or (ii).
EIGHTH: (a) The Corporation reserves the right to make any amendment of
the charter, now or hereafter authorized by law, including any amendment which
alters the contract rights, as expressly set forth in the charter, of any
shares of outstanding stock.
(b) The Board of Directors of the Corporation may authorize the
issuance from time to time of shares of its stock of any class, whether now or
hereafter authorized, or securities convertible into shares of its stock of any
class, whether now or hereafter authorized, for such consideration as the Board
of Directors may deem advisable, subject to such restrictions or limitations,
if any, as may be set forth in the Bylaws of the Corporation.
(c) The Board of Directors of the Corporation may, by articles
supplementary, classify or reclassify any unissued stock from time to time by
setting or changing the preferences, conversion or other rights, voting powers,
restrictions, limitations as to dividends, qualifications or terms or
conditions of redemption of the stock.
(d) It shall be the duty of the Board of Directors to use
commercially reasonable efforts to ensure that the Corporation satisfies the
requirements for qualification as a REIT under the Code, including, but not
limited to, the Ownership of its outstanding stock, the nature of its assets,
the sources of its income, and the amount and timing of its distribution to the
Corporation's stockholders.
NINTH: No holder of shares of stock of any class shall have any
preemptive right to subscribe to or purchase any additional shares of any class,
or any bonds or convertible securities of any nature; provided, however, that
the Board of Directors may, in authorizing the issuance of shares of stock of
any class, confer any preemptive right that the Board of Directors may deem
advisable in connection with such issuance.
TENTH: To the maximum extent that Maryland law in effect from time to
time permits limitation of the liability of directors and officers, no
director or officer of the Corporation shall be liable to the Corporation or
any of its stockholders for money damages. Neither the amendment nor repeal of
this Article, nor the adoption or amendment of any other provision of the
charter or Bylaws inconsistent with this Article, shall apply to or affect in
any respect the applicability of the preceding sentence with respect to any act
or failure to act which occurred prior to such amendment, repeal or adoption.
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ELEVENTH: The affirmative vote of the Corporation's independent
director will be required for the approval of any of the following actions by
or with respect to the Corporation or any corporation, limited liability
company, partnership or trust, the majority of the shares or other legal or
beneficial interests of which are held by the Corporation, of which the
Corporation is a managing member, general partner or trustee, or of which the
Corporation has the right to elect, designate or appoint a majority of the
directors, managers or trustees (each, a "Subsidiary"):
(a) filing or consenting to the filing of a bankruptcy petition;
(b) otherwise instituting or causing the Company or such
Subsidiary to acquiesce in the institution of an insolvency proceeding;
(c) dissolving, liquidating, consolidating, merging or selling
all or substantially all of its assets; or
(d) amending these Articles of Incorporation or the articles of
incorporation, limited liability company agreement, partnership
agreement or trust agreement of any Subsidiary.
The independent director will have a fiduciary duty to creditors and will be
required to consider the interests of creditors in connection with any decision
or action with respect to any of the foregoing actions.
IN WITNESS WHEREOF, I have signed these Articles of
Incorporation and acknowledge the same to be my act on this 21st day of March,
1997.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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[DEPARTMENT OF ASSESSMENTS AND TAXATION LETTERHEAD]
Charter Division
-----------------------------------------------------------------------------
DOCUMENT CODE 023.J. BUSINESS CODE 03 COUNTY 74
------ --- ---
# P.A. Religious Close X Stock Nonstock
---------------- ----- --- ---- --- ----
Merging Surviving
(Transferor) (Transferee)
---------------------- ----------------------
---------------------------------- ----------------------------------
---------------------------------- ----------------------------------
---------------------------------- ----------------------------------
CODE AMOUNT FEE REMITTED
10 50 Expedited Fee (New Name)
----- ------------------------
61 20 Rec. Fee (Arts. of Inc.) ---------------------------------
----- ---------------------------------
20 20 Organ. & Capitalization
-----
62 Rec. Fee (Amendment)
-----
63 Rec. Fee (Merger, Consol.)
-----
64 Rec. Fee (Transfer)
-----
66 Rec. Fee (Revival) Change of Name
----- ----
65 Rec. fee (Dissolution) Change of Principal Office
----- ----
75 Special Fee Change of Resident Agent
----- ----
73 Certificate of Conveyance Change of Resident Agent
----- ---- Address
------------------------- ---- Resignation of Resident Agent
------------------------- Designation of Resident Agent
------------------------- ---- and Resident Agent's Address
21 Recordation Tax
----- Change of Business Code
22 State Transfer Tax ----
----- -------------------------
23 Local Transfer Tax Adoption of Assumed Name
----- ----
70 Change of P.O., R.A. or R.A.A. -------------------------
----- -------------------------
31 Corp. Good Standing -------------------------
-----
600 Returns
------------------------------------------------------
52 Foreign Qualification
-----
NA Foreign Registration Other Change(s)
----- ---- ----------
51 Foreign Name Registration -------------------------
----- -------------------------
53 Foreign Resolution
-----
54 For. Supplemental Cert. CODE 193
----- ------------------
56 Penalty
-----
50 Cert. of Qual. or Reg.
------------------------------------------------------
83 Cert. Limited Partnership
----- ATTENTION: ARC
84 Amendment to Limited Partnership -----------------
----- ---------------------------
85 Termination of Limited Partnership ---------------------------
-----
80 For. Limited Partnership
-----
91 Amend/Cancellation, For. Limited Part.
-----
87 Limited Part. Good Standing
------------------------------------------------------
67 Cert. Limited Liability Partnership MAIL TO ADDRESS:
----- ----------
68 LLP Amendment - Domestic --------------------------
----- --------------------------
69 Foreign Limited Liability Partnership --------------------------
----- --------------------------
74 LLP Amendment - Foreign
------------------------------------------------------
99 Art. of Organization (LLC)
-----
98 LLC Amend. Diss, Continuation
-----
97 LLC Cancellation.
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96 Registration Foreign LLC
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94 Foreign LLC Supplemental
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92 LLC Good Standing (short)
------------------------------------------------------
13 9 1 Certified Copy 3
----- --- --------------------
Other
-- ----- --------------------------------- NOTE:
TOTAL
FEES 99 Credit Card
----- -----
X Check Cash
----- ----
Documents on checks
------- -----------
CERTIFIED COPY MADE
APPROVED BY: WM
----
TELEPHONE (▇▇▇) ▇▇▇-▇▇▇▇
ROOM 809 - ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
MRS (MARYLAND RELAY SERVICE) 1-800-735-2258 TT/VOICE
FAX(410) ▇▇▇-▇▇▇▇
24
EXHIBIT B
25
FORM OF
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made and
entered into as of _______ __, 1997 by and among Tower Realty Trust, Inc., a
Maryland corporation which operates as a real estate investment trust (the
"COMPANY"), and Carlyle Realty Partners, L.P., a Delaware limited partnership
("REALTY"), Carlyle Realty Qualified Partners, L.P., a Delaware limited
partnership ("REALTY QUALIFIED"), Carlyle Realty Partners Sunrise, L.P., a
Delaware limited partnership ("SUNRISE") and Carlyle Realty Coinvestment, L.P.,
a Delaware limited partnership ("COINVESTMENT") (Realty, Realty Qualified,
Sunrise and Coinvestment, together, the "HOLDERS" and each a "HOLDER").
WHEREAS, the Company has agreed to issue Common Stock (as defined
below) to the Holder and to grant to the Holders the registration rights set
forth in Section 2 hereof.
NOW, THEREFORE, the parties hereto, in consideration of ten dollars
($10.00), the mutual covenants and agreements hereinafter set forth, and other
good and valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, hereby agree as follows:
I Definitions.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"COMMON STOCK" shall mean shares of common stock, par value $0.01 per
share, of the Company.
"COMPANY" shall have the meaning set forth in the Preamble and also
shall include the Company's successors.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"HOLDER" or "HOLDERS" shall have the meaning set forth in the Preamble.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"PERSON" shall mean an individual, partnership, corporation, limited
liability company, trust, estate, or unincorporated organization, or other
entity, or a government or agency or political subdivision thereof.
26
"PROSPECTUS" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus 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 a Shelf
Registration Statement, and by all other amendments and supplements to such
prospectus, including post-effective amendments, and in each case including all
material incorporated by reference therein.
"REGISTRABLE SECURITIES" shall mean the Securities, excluding
(i) Securities for which a Registration Statement relating to
the sale thereof shall have become effective under the Securities Act
and which have been disposed of under such Registration Statement or
(ii) Securities sold or eligible for sale pursuant to Rule
144(k).
"REGISTRATION EXPENSES" shall mean any and all expenses incident to
performance of or compliance with this Agreement, including, without limitation:
(i) all SEC, stock exchange or NASD registration and filing
fees;
(ii) all fees and expenses incurred in connection with
compliance with state securities or "blue sky" laws (including
reasonable fees and disbursements of counsel in connection with "blue
sky" qualification of any of the Registrable Securities and the
preparation of a Blue Sky Memorandum) and compliance with the rules of
the NASD;
(iii) all expenses of any Persons in preparing or assisting in
preparing, word processing, printing and distributing any Registration
Statement, any Prospectus, certificates and other documents relating to
the performance of and compliance with this Agreement, as well as any
other similar internal costs and expenses;
(iv) all fees and expenses incurred in connection with the
listing, if any, of any of the Registrable Securities on any securities
exchange or exchanges pursuant to Article III, Section (xii) hereof;
(v) the fees and disbursements of counsel for the Company and
of the independent public accountants of the Company, including the
expenses of any special audits or "cold comfort" letters required by or
incident to such performance and compliance; and
(vi) the reasonable fees and disbursements of counsel
representing the selling Holders in an amount not to exceed $5,000.
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Registration Expenses shall specifically exclude underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
Registrable Securities by a selling Holder, all of which shall be borne by such
Holder in all cases.
"REGISTRATION STATEMENT" or "SHELF REGISTRATION STATEMENT" shall mean a
"shelf" registration statement of the Company and any other Person required to
be a registrant with respect to such shelf registration statement pursuant to
the requirements of the Securities Act which covers the issuance or resale of
the Registrable Securities on Form S-3 or otherwise under Rule 415 promulgated
under the Securities Act, or any similar rule that may be adopted by the SEC,
and all amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all materials incorporated by reference
therein.
"RULE 144" shall mean Rule 144 promulgated under the Securities Act, as
amended from time to time, and any successor rule or regulation under the
Securities Act.
"SEC" shall mean the Securities and Exchange Commission.
"SECURITIES" shall have the meaning set forth in the Preamble.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended from
time to time, and any successor Act.
"SHELF REGISTRATION" shall mean a registration required to be effected
pursuant to Section 2 hereof.
II Shelf Registration Under the Securities Act.
2.1 Filing of Shelf Registration Statement.
(i) Within 15 days after the first anniversary date of the
date hereof, the Company shall cause to be filed a Shelf Registration
Statement providing for the sale by the Holders of the Registrable
Securities so that the same shall be effective on the thirtieth (30th)
day after such first anniversary date of the dated hereof and, in all
events, will use its reasonable efforts to cause such Shelf
Registration Statement to be declared effective by the SEC as soon as
practicable.
(ii) The Company agrees to use its reasonable best efforts to
keep the Shelf Registration Statement continuously effective for a
period expiring on the date on which all of the Registrable Securities
covered by the Shelf Registration Statement have been sold pursuant to
the Shelf Registration Statement or have become eligible for sale
pursuant to Rule 144(k) and all legends have been removed and, subject
to Article III hereof, further agrees to supplement or amend the Shelf
Registration Statement, if and
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28
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 by any other rules and
regulations thereunder for shelf registration; provided, however, that
the Company shall not be deemed to have used its reasonable efforts to
keep a Registration Statement effective during the applicable period if
it voluntarily takes any action that would result in a selling Holder
covered thereby not being able to sell such Registrable Securities
during that period, unless the Company has filed a post-effective
amendment to the Registration Statement and the SEC has not declared it
effective.
(iii) Notwithstanding the foregoing, the Company shall not be
required to file a Registration Statement or to keep a Registration
Statement effective if the negotiation or consummation of a transaction
is pending or an event has occurred, which negotiation, consummation or
event would require additional disclosure by the Company in the
Registration Statement of material information which the Company has a
bona fide business purpose for keeping confidential and the
nondisclosure of which in the Registration Statement might cause the
Registration Statement to fail to comply with applicable disclosure
requirements; provided, however, that the Company may not delay,
suspend or withdraw a Registration Statement for such reason for more
than 60 days or more often than once during any period of 6 consecutive
months.
(iv) The Company is not required to file a separate
Registration Statement, but may file one Registration Statement
covering the Registrable Securities together with other securities held
by Persons other than the Holders.
2.2 Expenses.
(i) The Company shall pay all Registration Expenses in
connection with any registration pursuant to Article II.
(ii) The Holders shall pay all underwriting discounts, if any,
sales commissions, and transfer taxes, if any, relating to the sale or
disposition of any such Holder's Registrable Securities pursuant to the
Shelf Registration Statement or Rule 144.
2.3 Inclusion in Shelf Registration Statement. If any Holder does not,
within 10 days after written receipt of a reasonable request by the Company for
information required under the Securities Act and/or the rules or regulations
promulgated thereunder in connection with the Shelf Registration Statement,
provide such information to the Company, such Holder shall not be entitled to
have its Registrable Securities included in the Shelf Registration Statement
until such time as the Holder provides such information.
2.4 Effect of Material Breach. In the event that the Company shall
breach any of its material obligations hereunder in any respect, any Holder of
Registrable Securities may demand that the Company file a registration statement
covering such Holder's Registrable
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29
Securities. The Company agrees to file such registration statement within 30
days after receipt of such demand and agrees to use its best efforts to procure
the effectiveness of such registration statement within 30 days after filing.
This right of the Holders is in addition to any other remedy at law or in
equity.
III Registration Procedures. (a) In connection with the obligations of the
Company with respect to the Registration Statement required to be filed pursuant
to Article 2 hereof, the Company shall, to the extent applicable:
(i) Prepare and file with the SEC, within the time period set
forth in Section 2 hereof, a Shelf Registration Statement, which Shelf
Registration Statement
(A) shall be available for the sale of the
Registrable Securities in accordance with the intended method
or methods of distribution by the selling Holder thereof, and
(B) shall comply as to form in all material respects
with the requirements of the applicable form of registration
statement and include all financial statements required by the
SEC to be filed therewith.
(ii) (A) Subject to Article III, Section (a)(ii)(B),
(I) prepare and file with the SEC such
amendments and post-effective amendments to each such
Registration Statement as may be necessary to keep
such Registration Statement effective for the
applicable period;
(II) cause each such Prospectus to be
supplemented by any required prospectus supplement,
and as so supplemented to be filed pursuant to Rule
424 or any similar rule that may be adopted under the
Securities Act;
(III) respond promptly to any comments
received from the SEC with respect to the Shelf
Registration Statement, or any amendment,
post-effective amendment or supplement relating
thereto; and
(IV) comply with the provisions of the
Securities Act with respect to the disposition of all
securities covered by each Registration Statement
during the applicable period in accordance with the
intended method or methods of distribution by the
selling Holder thereof.
(B) (I) Each Holder shall promptly provide to the
Company such information as the Company reasonably
requests in order to identify such
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30
Holder and the method of distribution in a
post-effective amendment to the Registration
Statement or a supplement to the Prospectus.
(II) The Holders also shall notify the
Company in writing upon completion of any offer or
sale or at such time as such Holder no longer intends
to make offers or sales under the Registration
Statement.
(iii) Furnish to the Holders, without charge, as many copies
of each Prospectus, including each preliminary Prospectus, and any
amendment or supplement thereto and such other documents as the Holders
may reasonably request, in order to facilitate the public sale or other
disposition of the Registrable Securities; the Company consents to the
use of the Prospectus, including each preliminary Prospectus, by the
Holders in connection with the offering and sale of the Registrable
Securities covered by the Prospectus or the preliminary Prospectus.
(iv) Use its reasonable efforts to register or qualify the
Registrable Securities by the time the applicable Registration
Statement is declared effective by the SEC under all applicable state
securities or "blue sky" laws of such jurisdictions as the Holders
shall reasonably request in writing, keep each such registration or
qualification effective during the period such Registration Statement
is required to be kept effective, and do any and all other acts and
things which may be reasonably necessary or advisable to enable the
Holders to consummate the disposition in each such jurisdiction of such
Registrable Securities owned by such Holder; provided, however, that
the Company shall not be required to
(A) 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
qualify but for this Article III, Section (a)(iv),
(B) subject itself to taxation in any such
jurisdiction, or
(C) submit to the general service of process in any
such jurisdiction.
(v) Notify the Holders promptly and, if requested by any such
Holder, confirm such notification in writing
(A) when a Registration Statement has become
effective and when any post-effective amendments and
supplements thereto become effective,
(B) of the issuance by the SEC or any state
securities authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of
any proceedings for that purpose,
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31
(C) if the Company receives any notification with
respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the
initiation of any proceeding for such purpose, and
(D) of the happening of any event during the period a
Registration Statement is effective which is of a type
specified in Article II, Section 2.1(iii) hereof or as a
result of which such Registration Statement or the related
Prospectus contains any untrue statement of a material fact or
omits to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they were made (in the case of the
Prospectus), not misleading.
(vi) Make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement at
the earliest possible moment.
(vii) Furnish to the Holders, without charge, at least one
conformed copy of each Registration Statement and each post-effective
amendment thereto (together with all documents incorporated therein by
reference and all exhibits thereto).
(viii) (A) Cooperate with the Holders to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any Securities Act legend; and
(B) enable certificates for such Registrable
Securities to be issued for such numbers of shares of Common
Stock and registered in such names as the Holder may
reasonably request at least two business days prior to any
sale of Registrable Securities.
(ix) Subject to Article II, Section 2.1(iii) hereof, upon the
occurrence of any event contemplated by Article III, Section (a)(v)(D)
hereof, use every reasonable effort promptly to prepare and file a
supplement or prepare, file and obtain effectiveness of a
post-effective amendment to a Registration Statement or the related
Prospectus or any document incorporated therein by reference or file
any other required document so that, at the earliest possible moment as
thereafter delivered to the purchasers of the Registrable Securities,
such Prospectus will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(x) Make available for inspection by representatives of the
Holders and any counsel or accountant retained by such Holders, all
financial and other records, pertinent corporate documents and
properties of the Company, and cause the respective officers, directors
and employees of the Company to supply all information reasonably
-7-
32
requested by any such representative, counsel or accountant in
connection with a Registration Statement; provided, however, that such
records, documents or information which the Company determines, in good
faith, to be confidential and notifies such representatives, counsel or
accountants in writing that such records, documents or information are
confidential shall not be disclosed by such representatives, counsel or
accountants unless
(A) the disclosure of such records, documents or
information is necessary to avoid or correct a material
misstatement or omission in a Registration Statement,
(B) the release of such records, documents or
information is ordered pursuant to a subpoena or other order
from a court of competent jurisdiction, or
(C) such records, documents or information have been
generally made available to the public.
(xi) Within a reasonable time prior to the filing of any
Registration Statement, any Prospectus, any amendment to a Registration
Statement or amendment or supplement to a Prospectus, provide copies of
such document (including all documents incorporated by reference
therein) to the Holders.
(xii) Use its reasonable efforts to cause all Registrable
Securities to be listed on each securities exchange on which similar
securities issued by the Company are then listed.
(xiii) Provide a CUSIP number for all Registrable Securities,
not later than the effective date of a Registration Statement.
(xiv) Otherwise use its reasonable efforts to comply with all
applicable rules and regulations of the SEC and make available to its
security holders, as soon as reasonably practicable, an earnings
statement covering at least 12 months which shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158
promulgated thereunder.
(xv) Use its reasonable efforts to cause the Registrable
Securities covered by a Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary by virtue of the business and operations of the Company to
enable Holders to consummate the disposition of such Registrable
Securities.
(b) In connection with and as a condition to the Company's obligations
with respect to the Registration Statement required to be filed
pursuant to Section 2 hereof and this Section 3, each Holder agrees
that
-8-
33
(i) it will not offer or sell its Registrable Securities under
the Registration Statement until it has received copies of the
supplemental or amended Prospectus contemplated by Article III, Section
(a)(ii)(A) hereof and receives notice that any post-effective amendment
(if required) has become effective, and
(ii) upon receipt of any notice from the Company of the
happening of any event of the kind described in Article III, Section
(a)(v)(D) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to a Registration Statement until the
Holder receives copies of the supplemented or amended Prospectus
contemplated by Article III, Section (a)(ix) hereof and receives notice
that any post-effective amendment (if required) has become effective,
and, if so directed by the Company, the Holder will deliver to the
Company (at the expense of the Company) all copies in its possession,
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.
IV Indemnification; Contribution.
4.1 Indemnification by the Company. The Company agrees to indemnify and
hold harmless the Holders, each Person, if any, who controls a Holder (within
the meaning of Section 15 of the Securities Act) and the officers, directors,
shareholders, partners, employees, agents and representatives of the Holders and
each such controlling Person as follows:
(a) against any and all loss, liability, claim, damage,
judgment and expense whatsoever, as incurred, arising out of
(A) any untrue statement or alleged untrue statement
of a 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
(B) the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to
make the statements therein not misleading, or
(C) arising out of any untrue statement or alleged
untrue statement of a material fact contained in any
Prospectus (or any amendment or supplement thereto), including
all documents incorporated therein by reference, or
(D) the omission or alleged omission therefrom of a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading;
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34
(b) against any and all loss, liability, claim, damage,
judgment and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or investigation
or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of
the Company, which consent shall not be unreasonably withheld or
delayed; and
(c) against any and all expense whatsoever, as incurred
(including reasonable fees and disbursements of counsel), reasonably
incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency
or body, commenced or threatened, in each case whether or not a party,
or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under subparagraph (a) or (b)
above;
provided, however, that the indemnity provided pursuant to this Article
IV, Section 4.1(c) does not apply to a Holder with respect to any loss,
liability, claim, damage, judgment or expense to the extent arising out
of
(x) any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with
written information furnished to the Company by the Holder expressly
for use in a Registration Statement (or any amendment thereto) or any
Prospectus (or any amendment or supplement thereto) or
(y) the Holder's failure to deliver an amended or supplemental
Prospectus, after having been provided copies of any such amended or
supplemental Prospectus by the Company, if such loss, liability, claim,
damage, judgment or expense would not have arisen had such delivery
occurred.
4.2 Indemnification by Holder. Each Holder agrees, jointly and
severally, to indemnify and hold harmless the Company and the other selling
holders of securities, and each of their respective directors and officers
(including each director and officer of the Company who signed the Registration
Statement), and each Person, if any, who controls the Company or any other
selling holder of securities within the meaning of Section 15 of the Securities
Act, under the same circumstances and to the same extent as the indemnity
contained in Section 4.1(a) hereof (except that any settlement described in
Section 4.1(a)(B) shall be effected with the written consent of the Holder,
which consent shall not be unreasonably withheld or delayed), but only insofar
as such loss, liability, claim, damage, judgment or expense arises out of or is
based upon any untrue statement or omission, or alleged untrue statements or
omissions, made in a Registration Statement (or any amendment thereto) or any
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by the Holder
expressly for use in such Registration
-10-
35
Statement (or any amendment thereto) or such Prospectus (or any amendment or
supplement thereto). In no event shall a Holder be liable or responsible for any
amount in excess of the amount of the proceeds received by the Holder upon its
sale of securities giving rise to such indemnification obligation hereunder less
all amounts previously paid by the Holder, if any, pursuant to this Section 4.2.
4.3 Conduct of Indemnification Proceedings. (i) Each indemnified party
shall give reasonably prompt notice to each indemnifying party of any action or
proceeding commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party
(A) shall not relieve it from any liability which it
may have under the indemnity agreement provided in Section 4.1
or 4.2 above, unless and to the extent it did not otherwise
learn of such action and the lack of notice by the indemnified
party results in the forfeiture by the indemnifying party of
substantial rights and defenses and
(B) shall not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than
the indemnification obligation provided under Section 4.1 or
4.2 above.
(ii) If the indemnifying party so elects within a reasonable
time after receipt of such notice, the indemnifying party may assume
the defense of such action or proceeding at such indemnifying party's
own expense with counsel chosen by the indemnifying party and approved
by the indemnified parties defendant in such action or proceeding,
which approval shall not be unreasonably withheld; provided, however,
that, if (A) the indemnifying party shall have failed so to assume the
defense of such action and employ such counsel, or (B) such indemnified
party or parties reasonably determine that a conflict of interest
exists where it is advisable for such indemnified party or parties to
be represented by separate counsel or that, upon advice of counsel,
there may be legal defenses available to them which are different from
or in addition to those available to the indemnifying party, then the
indemnifying party shall not be entitled to assume such defense and the
indemnified party or parties shall be entitled to one separate counsel
(in addition to one local counsel if the action is maintained outside
of New York) at the indemnifying party's or parties' expense. If an
indemnifying party is entitled to assume, and assumes, the defense of
such action or proceeding in accordance with this Section 4(c), such
indemnifying party shall not be liable for any fees and expenses of
counsel for the indemnified parties incurred thereafter in connection
with such action or proceeding.
(iii)(A) If an indemnifying party is not entitled to assume
the defense of such action or proceeding as a result of the
proviso to Section 4.3(ii), such indemnifying party's counsel
shall be entitled to conduct such indemnifying
-11-
36
party's defense, and counsel for the indemnified party or
parties shall be entitled to conduct the defense of such
indemnified party or parties, it being understood that both
such counsel will cooperate with each other to conduct the
defense of such action or proceeding as efficiently as
possible.
(B) If an indemnifying party is not so entitled to
assume the defense of such action or does not assume such
defense, after having received the notice referred to in
Section 4.1(c), the indemnifying party or parties will pay the
reasonable fees and expenses of counsel for the indemnified
party or parties (in addition to one local counsel if the
action is maintained outside of New York) as incurred.
(C) In such event, however, no indemnifying party
will be liable for any settlement effected without the written
consent of such indemnifying party, which consent may not be
unreasonably withheld or delayed.
4.4 Contribution.
(i) (A) In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement
provided for in this Section 4 is for any reason held to be
unenforceable although applicable in accordance with its
terms, the Company and each selling Holder shall contribute to
the aggregate losses, liabilities, claims, damages, judgments
and expenses of the nature contemplated by such indemnity
agreement incurred by the Company and the Holder, in such
proportion as is appropriate to reflect the relative fault of
and benefits to the Company on the one hand and the Holder on
the other, as well as any other relevant equitable
consideration, in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable
considerations.
(B) (I) The relative benefits to the indemnifying
party and indemnified parties shall be determined by
reference to, among other things, the total proceeds
received by the indemnifying party and indemnified
parties in connection with the offering to which such
losses, claims, damages, liabilities or expenses
relate.
(II) The relative fault of the indemnifying
party and indemnified parties shall be determined by
reference to, among other things, whether the 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 the indemnified parties, and
the parties' relative
-12-
37
intent, knowledge, access to information and
opportunity to correct or prevent such action.
(ii) (A) The parties hereto agree that it would not be just or
equitable if contribution pursuant to this Section 4.4(d) were
determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable
considerations referred to in Section 4.4(i).
(B) Notwithstanding the provisions of this Section
4.4, a Holder shall not be required to contribute any amount
in excess of the amount by which the total price at which the
Registrable Securities of such selling Holder were offered to
the public exceeds the amount of any damages which such
selling Holder would otherwise have been required to pay by
reason of such untrue statement or omission.
(iii) Notwithstanding the foregoing, 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.
(iv) For purposes of this Section 4.4, each Person, if any,
who controls a Holder within the meaning of Section 15 of the
Securities Act and directors, officers, stockholders, partners,
employees, agents and representatives of the Holder and of each
controlling Person of such Holder shall have the same rights to
contribution as such Holder, and each director of the Company, each
officer of the Company who signed the Registration Statement and each
Person, if any, who controls the Company within the meaning of Section
15 of the Securities Act shall have the same rights to contribution as
the Company.
V Filing of Exchange Act Reports; Rule 144 Sales
5.1 The Company covenants that it will file the reports required to be
filed by the Company under the Securities Act and the Exchange Act so as to
enable the Holders to sell Securities pursuant to Rule 144.
5.2 In connection with any sale, transfer or other disposition by a
Holder of any Securities pursuant to Rule 144, the Company shall cooperate with
such Holder to facilitate the timely preparation and delivery of certificates
representing Securities to be sold and not bearing any Securities Act legend,
and enable certificates for such Securities to be for such number of shares and
registered in such names as the Holder may reasonably request at least two
business days prior to any sale of Securities.
-13-
38
VI Miscellaneous.
6.1 Amendments and Waivers. (i) The provisions of this Agreement,
including the provisions of this Section 6.1(i), may not be amended,
modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given without the written consent of
the Company and the Holders; provided, however, that no amendment,
modification or supplement or waiver or consent to the departure with
respect to the provisions of Articles 2, 4 or 5 hereof shall be
effective as against a Holder unless consented to in writing by the
Holder.
(ii) Notice of any amendment, modification or supplement to
this Agreement adopted in accordance with this Section 6.1 shall be
provided by the Company to the Holders at least thirty (30) days prior
to the effective date of such amendment, modification or supplement.
6.2 Notices. (i) All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery addressed and delivered or telecopied in the case of notice to the
Holder to the following address and telecopy number:
Carlyle Group
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
and addressed and delivered or telecopied in the case of a notice to the Company
to the following address and telecopy number:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
c/o Feldman Equities
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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39
with a copy to:
Battle ▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esq.
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) All such notices and communications shall be deemed to
have been duly given:
(A) at the time delivered by hand, if personally
delivered;
(B) three (3) business days after being deposited in
the mail, postage prepaid, if mailed;
(C) when answered back, if telexed;
(D) when receipt is acknowledged, if telecopied; or
(E) at the time delivered, if delivered by an air
courier guaranteeing overnight delivery.
6.3 Successors, Assigns and Transferees. (i) 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 Holder.
(ii) If any successor, assignee or transferee of the 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 entitled to
receive the benefits hereof and shall be conclusively deemed to have
agreed to be bound by all of the terms and provisions hereof.
(iii) The term "successor, assignee or transferee of a Holder"
shall include any Person that acquires Registrable Securities by
operation of law, including upon the merger or consolidation,
liquidation or dissolution of the Holder.
6.4 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.
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40
6.5 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
6.6 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLAND WITHOUT GIVING EFFECT TO THE
CONFLICTS OF LAW PROVISIONS THEREOF.
6.7 Specific Performance. The parties hereto acknowledge that there
would be no adequate remedy at law if any party fails to perform any of its
obligations hereunder, and accordingly agree that each party, in addition to any
other remedy to which it may be entitled at law or in equity, shall be entitled
to compel specific performance of the obligations of any other party under this
Agreement in accordance with the terms and conditions of this Agreement in any
court of the United States or any State thereof having jurisdiction.
6.8 Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
6.9 The Company will not, on or after the date of this Agreement, enter
into any agreement with respect to its securities that is inconsistent with the
rights granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof. The Company has not previously entered into any agreement
granting any registration rights with respect to its securities to any Person
that are inconsistent with the rights granted to the Holders 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
securities under any agreement in effect on the date hereof.
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41
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement, or caused this Agreement to be duly executed on its behalf, as of the
date first written above.
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ TOWER REALTY TRUST, INC.
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
By:____________________________
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman, Chief Executive
Officer and President
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ TOWER REALTY OPERATING
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ PARTNERSHIP, L.P.
By: Tower Realty Trust, Inc., its general
partner
By:____________________________
Name:
Title:
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42
Address: HOLDERS:
c/o Carlyle Group CARLYLE REALTY PARTNERS, L.P.,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇ South By: Carlyle Realty, L.P., its general partner
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
By: DBD Investors III, L.L.C., its general partner
By:_____________________________________
Name:
Title:
c/o Carlyle Group CARLYLE REALTY QUALIFIED PARTNERS, L.P.,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇ South By: Carlyle Realty, L.P., its general partner
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
By: DBD Investors III, L.L.C., its general partner
By:_____________________________________
Name:
Title:
c/o Carlyle Group CARLYLE REALTY PARTNERS SUNRISE L.P.,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇ South By: Carlyle Realty, L.P., its general partner
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
By: DBD Investors III, L.L.C., its general partner
By:_____________________________________
Name:
Title:
c/o Carlyle Group CARLYLE REALTY COINVESTMENT, L.P.,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇ South By: Carlyle Realty, L.P., its general partner
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
By: DBD Investors III, L.L.C., its general partner
By:_____________________________________
Name:
Title:
-18-
43
EXHIBIT C
44
EXHIBIT C
TO
STOCK PURCHASE AGREEMENT
FORM OF
LOCK-UP AGREEMENT
_____________, 1997
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
World Financial Center
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs,
The undersigned and Tower Realty, Inc. (the "Company") are parties to a
Purchase Agreement (the "Purchase Agreement"), dated as of September 19, 1997,
pursuant to which the undersigned acquired [__________] shares (the "Shares") of
Common Stock, par value $0.01 per share, of the Company. The undersigned
understand that ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Incorporated ("▇▇▇▇▇▇▇
▇▇▇▇▇") and certain other firms propose to enter into an Underwriting Agreement
(the "Underwriting Agreement") providing for the purchase by ▇▇▇▇▇▇▇ ▇▇▇▇▇ and
such other firms (the "Underwriters") of shares (the "IPO Shares") of Common
Stock, par value $0.01 per share (the "Common Stock"), of the Company and that
the Underwriters propose to reoffer the IPO Shares to the public pursuant to a
public offering (the "Offering"). Capitalized terms used but not otherwise
defined in this letter agreement will have the meaning set forth in the Purchase
Agreement.
In consideration of the execution of the Purchase Agreement, and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the undersigned hereby irrevocably agrees that without the
prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, the undersigned will not (and, except as
may be disclosed in the Purchase Agreement, will not announce or disclose any
intention to) directly or indirectly sell, offer to sell, solicit an offer to
buy, contract to sell, grant any option to purchase, or otherwise transfer or
dispose (or enter into any transaction or device which is designed to, or could
be expected to, result in the disposition at any time in the future) of, any
Shares, or any securities convertible into or exercisable or exchangeable for
Shares for a period of twelve (12) months after the date hereof. Prior to the
expiration of such period, the undersigned will not publicly announce or
disclose any intention to do anything after the expiration of such period which
the undersigned is prohibited, as provided in the preceding sentence, from doing
during such period.
The undersigned agrees that the provisions of this agreement shall also
be binding upon the successors, assigns, heirs and personal representatives of
the undersigned.
45
This letter shall not prohibit any of the undersigned from (i)
transferring the Shares to an Affiliate (as defined below) of that particular
undersigned, provided such transferee agrees in writing to the transfer
restrictions described above or (ii) pledging the Shares to any financial
institution as collateral for a loan to which that particular undersigned is
personally liable. As used herein, the term "Affiliate" shall mean any Person
that, directly or indirectly, through one or more intermediaries, controls, is
controlled by or is under common control with a specified Person.
In furtherance of the foregoing, the Company and American Stock
Transfer and Trust Company, its Transfer Agent, are hereby authorized to decline
to make any transfer of securities if such transfer would constitute a violation
or breach of this letter agreement.
Very truly yours,
CARLYLE REALTY PARTNERS, L.P.,
By: Carlyle Realty, L.P., its general partner
By: DBD Investors III, L.L.C., its general partner
By:______________________________________
Name:
Title:
Address:
CARLYLE REALTY QUALIFIED PARTNERS, L.P.,
By: Carlyle Realty, L.P., its general partner
By: DBD Investors III, L.L.C., its general partner
By:______________________________________
Name:
Title:
Address:
-2-
46
CARLYLE REALTY PARTNERS SUNRISE, L.P.,
By: Carlyle Realty, L.P., its general partner
By: DBD Investors III, L.L.C., its general partner
By:______________________________________
Name:
Title:
Address:
CARLYLE REALTY COINVESTMENT, L.P.,
By: Carlyle Realty, L.P., its general partner
By: DBD Investors III, L.L.C., its general partner
By:______________________________________
Name:
Title:
Address:
633079.3
-3-