Essex Portfolio, L.P. Essex Property Trust, Inc. Registration Rights Agreement
Exhibit
10.1
Essex
Portfolio, L.P.
Essex
Property Trust, Inc.
October
28, 2005
This
Registration Rights Agreement
(the
“Agreement”)
is
made and entered into as of October 28, 2005, by and among Essex Portfolio,
L.P., a California limited partnership (the “Operating
Partnership”),
Essex
Property Trust, Inc., a Maryland corporation (the “Company”),
and
UBS Securities LLC and Bear, ▇▇▇▇▇▇▇ & Co. Inc. (collectively, the
“Initial
Purchasers”)
pursuant to that certain Purchase Agreement, dated October 25, 2005 (the
“Purchase
Agreement”),
among
the Operating Partnership, the Company and the Initial Purchasers. The
obligations of the Operating Partnership under the Notes and the Indenture
will
be fully and unconditionally guaranteed on a senior unsecured basis by the
Company pursuant to the terms of the Indenture (the “Guarantee”).
References herein to the Notes shall be deemed to include the Guarantee
thereon.
In
order
to induce the Initial Purchasers to enter into the Purchase Agreement, the
Operating Partnership and the Company have agreed to provide the registration
rights set forth in this Agreement. The execution of this Agreement is a
condition to the closing under the Purchase Agreement. The terms “herein,”
“hereof,” “hereto,” “hereinafter” and similar terms, as used in this Agreement,
shall in each case refer to this Agreement as a whole and not to any particular
section, paragraph, sentence or other subdivision of this
Agreement.
The
Operating Partnership and the Company agree with the Initial Purchasers (i)
for
their benefit as Initial Purchasers and (ii) for the benefit of the beneficial
owners (including the Initial Purchasers) from time to time of the Registrable
Securities (as defined herein) (each of the foregoing a “Holder”
and,
together, the “Holders”),
as
follows:
1. Definitions.
Capitalized terms used herein without definition shall have the respective
meanings set forth in the Purchase Agreement. As used in this Agreement, the
following terms shall have the following meanings:
(a) “Additional
Filing Deadline Date”
has
the
meaning set forth in Section 2(e)
hereof.
(b) “additional
interest”
has
the
meaning set forth in Section 2(e)
hereof.
(c) “Additional
Interest Accrual Period”
has
the
meaning set forth in Section 2(e)
hereof.
(d) “Additional
Interest Amount”
has
the
meaning set forth in Section 2(e) hereof.
(e) “Additional
Interest Payment Date”
means
each May 1 and November 1 of each year.
(f) “Affiliate”
means,
with respect to any specified person, an “affiliate,” as defined in Rule 144, of
such person.
(g) “Amendment
Effectiveness Deadline Date”
has
the
meaning set forth in Section 2(d)
hereof.
(h) “Business
Day”
means
each day on which the New York Stock Exchange is open for trading.
(i) “Claim”
has
the
meaning set forth in Section 9(o)
hereof.
(j) “Common
Stock”
means
the shares of common stock, $0.0001 par value per share, of the Company and
any
other shares of capital stock as may constitute “Common Stock” for purposes of
the Indenture, including the Underlying Common Stock.
(k) “Effectiveness
Deadline Date”
has
the
meaning set forth in Section 2(a)
hereof.
(l) “Effectiveness
Period”
means
a
period (subject to extension pursuant to Section 3(i)
hereof)
that terminates when there are no Registrable Securities
outstanding.
(m) “Event”
has
the
meaning set forth in Section 2(e)
hereof.
(n) “Event
Date”
has
the
meaning set forth in Section 2(e) hereof.
(o) “Exchange
Act”
means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the SEC promulgated thereunder.
(p) “Exchange
Rate”
has
the
meaning ascribed to it in the Indenture.
(q) “Filing
Deadline Date”
has
the
meaning set forth in Section 2(a)
hereof.
(r) “Form
S-11”
means
the Registration Statement on Form S-11 under the Securities Act.
(s) “Form
S-3”
means
the Registration Statement on Form S-3 under the Securities Act.
(t) “Holder”
has
the
meaning set forth in the preamble hereto.
(u) “Holder
Information”
has
the
meaning set forth in Section 6(b)
hereof.
(v) “Indemnified
Party”
has
the
meaning set forth in Section 6(c)
hereof.
(w) “Indemnifying
Party”
has
the
meaning set forth in Section 6(c)
hereof.
(x) “Indenture”
means
the Indenture, dated as of October 28, 2005, between the Company and the
Trustee, pursuant to which the Notes are being issued.
(y) “Initial
Purchasers”
has
the
meaning set forth in the preamble hereto.
(z) “Initial
Shelf Registration Statement”
has
the
meaning set forth in Section 2(a)
hereof.
(aa) “Issue
Date”
means
October 28, 2005.
(bb) “Managing
Underwriters”
has
the
meaning set forth in Section 8(a)
hereof.
(cc) “Material
Event”
has
the
meaning set forth in Section 3(i)
hereof.
(dd) “NASD
Rules”
has
the
meaning set forth in Section 3(r)
hereof.
(ee) “Notes”
means
the 3.625% Exchangeable Senior Notes due 2025 of the Operating Partnership
to be
purchased pursuant to the Purchase Agreement.
(ff) “Notice
and Questionnaire”
means
a
written questionnaire containing substantially the information called for by
the
“Form of Selling Securityholder Notice and Questionnaire” attached as Appendix A
to the Offering Memorandum of the Operating Partnership and the Company, dated
October 25, 2005, relating to the Notes.
(gg) “Notice
Holder”
means,
on a given date, any Holder that has delivered a Notice and Questionnaire to
the
Company on or prior to such date, provided not all of such Holder’s Registrable
Securities that have been registered for resale pursuant to a Notice and
Questionnaire have been sold in accordance with a Shelf Registration
Statement.
(hh) “Option
Purchase Date”
has
the
meaning ascribed to it in the Indenture.
(ii) “Proceeding”
has
the
meaning set forth in Section 6(c)
hereof.
(jj) “Prospectus”
means
the prospectus included in any Shelf 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 415 under the Securities Act), as amended or supplemented by any amendment
or prospectus supplement, including post-effective amendments and any prospectus
filed with respect to any Shelf Registration Statement pursuant to Rule 424
under the Securities Act, and all materials incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
(kk) “Purchase
Agreement”
has
the
meaning set forth in the preamble hereof.
(ll) “Record
Date”
means,
(i) April 15, with respect to an Additional Interest Payment Date that occurs
on
May 1 and (ii) October 15, with respect to an Additional Interest Payment Date
that occurs on November 1.
(mm) “Record
Holder”
means,
with respect to an Additional Interest Payment Date relating to a Registrable
Security for which any Additional Interest Amount has accrued, a Notice Holder
that was the holder of record of such Registrable Security at the close of
business on the Record Date relating to such Additional Interest Payment
Date.
(nn) “Registrable
Securities”
means
the Notes, until such Notes have been exchanged into the Underlying Common
Stock, and, at all times, the Underlying Common Stock and any securities into
or
for which such Underlying Common Stock has been converted or exchanged, and
any
security issued with respect thereto upon any stock dividend, split or similar
event until, in the case of any such security, the earliest of:
(i) the
date
on which such security has been effectively registered under the Securities
Act
and disposed of in accordance with the Registration Statement relating
thereto;
(ii) the
date
on which such security may be resold without restriction pursuant to Rule 144(k)
or any successor provision thereto; or
(iii) the
date
on which such security has been publicly sold pursuant to Rule 144 or any
successor provision thereto.
(oo) “Registration
Expenses”
has
the
meaning set forth in Section 5
hereof.
(pp) “Registration
Statement”
means
any registration statement, under the Securities Act, of the Operating
Partnership and the Company that covers any of the Registrable Securities
pursuant to this Agreement, including the Prospectus, amendments and supplements
to such registration statement, including post-effective amendments, all
exhibits and all materials incorporated by reference or deemed to be
incorporated by reference in such registration statement, Prospectus, amendment
or supplement.
(qq) “Rule
144”
means
Rule 144 under the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the
SEC.
(rr) “Rule
144A”
means
Rule 144A under the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the
SEC.
(ss) “SEC”
means
the Securities and Exchange Commission.
(tt) “Securities
Act”
means
the Securities Act of 1933, as amended, and the rules and regulations
promulgated by the SEC thereunder.
(uu) “Shelf
Registration Statement”
means
the Initial Shelf Registration Statement and any Subsequent Shelf Registration
Statement.
(vv) “Subsequent
Shelf Registration Statement”
has
the
meaning set forth in Section 2(b)
hereof.
(ww) “Subsequent
Shelf Registration Statement Effectiveness Deadline Date”
has
the
meaning set forth in Section 2(d)
hereof.
(xx) “Suspension
Notice”
has
the
meaning set forth in Section 3(i)
hereof.
(yy) “Suspension
Period”
has
the
meaning set forth in Section 3(i)
hereof.
(zz) “TIA”
means
the Trust Indenture Act of 1939, as amended.
(aaa) “Trustee”
means
▇▇▇▇▇ Fargo Bank, N.A., the trustee under the Indenture.
(bbb) “Underlying
Common Stock”
means
the Common Stock issuable upon exchange of the Notes.
1. Shelf
Registration.
(a) The
Operating Partnership and the Company shall prepare and file, or cause to
be
prepared and filed, with the SEC, as soon as practicable but in any event
by the
date (the “Filing
Deadline Date”)
that
is ninety (90) days after the Issue Date, a Registration Statement (the
“Initial
Shelf Registration Statement”)
for an
offering to be made on a delayed or continuous basis pursuant to Rule 415
under
the Securities Act registering the resale from time to time by Holders thereof
of all of the Registrable Securities (or, if registration of Registrable
Securities not held by Notice Holders is not permitted by the rules and
regulations of the SEC, then registering the resale from time to time by
Notice
Holders of their Registrable Securities). The Initial Shelf Registration
Statement shall be on Form S-11 or Form S-3 or another appropriate form and
shall provide for the registration of such Registrable Securities for resale
by
such Holders in accordance with any reasonable method of distribution elected
by
the Holders. The Operating Partnership and the Company shall use their
reasonable best efforts to (i) cause the Initial Shelf Registration Statement
to
become effective under the Securities Act as promptly as practicable but
in any
event by the date (the “Effectiveness
Deadline Date”)
that
is one hundred eighty (180) days after the Issue Date and (ii) keep the Initial
Shelf Registration Statement (or any Subsequent Shelf Registration Statement)
continuously effective under the Securities Act until the expiration of the
Effectiveness Period. At the time the Initial Shelf Registration Statement
becomes effective under the Securities Act, each Holder that became a Notice
Holder on or prior to the date that is ten (10) Business Days prior to such
time
of effectiveness shall be named as a selling securityholder in the Initial
Shelf
Registration Statement and the related Prospectus in such a manner as to
permit
such Holder to deliver such Prospectus to purchasers of Registrable Securities
in accordance with applicable law.
(b) Subject
to Section 3(i) below, if any Shelf Registration Statement ceases to be
effective under the Securities Act for any reason at any time during the
Effectiveness Period, the Operating Partnership and the Company shall use their
reasonable best efforts to promptly cause such Shelf Registration Statement
to
become effective under the Securities Act (including obtaining the prompt
withdrawal of any order suspending the effectiveness of such Shelf Registration
Statement), and in any event shall, within thirty (30) days of such cessation
of
effectiveness, (i) amend such Shelf Registration Statement in a manner
reasonably expected to obtain the withdrawal of any order suspending the
effectiveness of such Shelf Registration Statement or (ii) file an additional
Registration Statement (a “Subsequent
Shelf Registration Statement”)
for an
offering to be made on a delayed or continuous basis pursuant to Rule 415 of
the
Securities Act registering the resale from time to time by Holders thereof
of
all securities that are Registrable Securities as of the time of such filing
(or, if registration of Registrable Securities not held by Notice Holders is
not
permitted by the rules and regulations of the SEC, then registering the resale
from time to time by Notice Holders of their securities that are Registrable
Securities as of the time of such filing). If a Subsequent Shelf Registration
Statement is filed, the Operating Partnership and the Company shall use their
reasonable best efforts to (A) cause such Subsequent Shelf Registration
Statement to become effective under the Securities Act as promptly as
practicable after such filing, but in no event later than the Subsequent Shelf
Registration Statement Effectiveness Deadline Date and (B) keep such Subsequent
Shelf Registration Statement (or another Subsequent Shelf Registration
Statement) continuously effective until the end of the Effectiveness
Period.
Any such
Subsequent Shelf Registration Statement shall be on Form S-11 or Form S-3 or
another appropriate form and shall provide for the registration of such
Registrable Securities for resale by such Holders in accordance with any
reasonable method of distribution elected by the Holders.
(c) The
Operating Partnership and the Company shall supplement and amend any Shelf
Registration Statement if required by the rules, regulations or instructions
applicable to the registration form used by the Operating Partnership and the
Company for such Shelf Registration Statement, if required by the Securities
Act
or as reasonably requested by the Initial Purchasers or by the Trustee on behalf
of the Holders of the Registrable Securities covered by such Shelf Registration
Statement.
(d) (i)
Each
Holder of Registrable Securities agrees that, if such Holder wishes to sell
Registrable Securities pursuant to a Shelf Registration Statement and related
Prospectus, it will do so only in accordance with this Section 2(d)
and
Section 3(i).
Each
Holder of Registrable Securities wishing to sell Registrable Securities pursuant
to a Shelf Registration Statement and related Prospectus agrees to deliver
a
completed and executed Notice and Questionnaire to the Operating Partnership
and
the Company prior to any attempted or actual distribution of Registrable
Securities under a Shelf Registration Statement. From and after the date the
Initial Shelf Registration Statement becomes effective under the Securities
Act,
the Operating Partnership and the Company shall, as promptly as practicable
after the date such Holder became a Notice Holder, and in any event, subject
to
clause (B)
below,
within the later of (x) ten (10) Business Days after such date or (y) ten (10)
Business Days after the expiration of any Suspension Period that either (I)
is
in effect when such Holder became a Notice Holder or (II) is put into effect
within ten (10) Business Days after the date such Holder became a Notice
Holder,
(A) if
required by applicable law, file with the SEC a supplement to the related
Prospectus or a post-effective amendment to the Shelf Registration Statement
or
file with the SEC a Subsequent Shelf Registration Statement and any necessary
supplement or amendment to any document incorporated therein by reference and
file any other required document with the SEC so that such Notice Holder is
named as a selling securityholder in a Shelf Registration Statement and the
related Prospectus in such a manner as to permit such Notice Holder to deliver
a
Prospectus to purchasers of the Registrable Securities in accordance with
applicable law; provided,
however,
that,
if a post-effective amendment or a Subsequent Shelf Registration Statement
is
required by the rules and regulations of the SEC in order to permit resales
by
such Notice Holder, the Operating Partnership and the Company shall not be
required to file more than one (1) post-effective amendment or Subsequent Shelf
Registration Statement for such purpose in any thirty (30) day
period;
(B) if,
pursuant to Section 2(d)(i)(A),
the
Operating Partnership and the Company shall have filed a post-effective
amendment to the Shelf Registration Statement or filed a Subsequent Shelf
Registration Statement, the Operating Partnership and the Company shall use
their reasonable best efforts to cause such post-effective amendment or
Subsequent Shelf Registration Statement, as the case may be, to become effective
under the Securities Act as promptly as practicable, but in any event by the
date (the “Amendment
Effectiveness Deadline Date,”
in
the
case of a post-effective amendment) that is thirty (30) days after the date
such
post-effective amendment, is required by this Section 2(d)
to be
filed with the SEC and by the date (the “Subsequent
Shelf Registration Statement Effectiveness Deadline Date,”
in
the
case of a Subsequent Shelf Registration Statement) that is sixty (60) days
after
the date such Subsequent Shelf Registration Statement is required by this
Section 2(d) to be filed with the SEC;
(C) the
Operating Partnership and the Company shall provide such Notice Holder a
reasonable number of copies of any documents filed pursuant to clause
(A)
above;
(D) the
Operating Partnership and the Company shall notify such Notice Holder as
promptly as practicable after the effectiveness under the Securities Act of
any
post-effective amendment or Subsequent Shelf Registration Statement filed
pursuant to clause (A)
above;
(E) if
such
Holder became a Notice Holder during a Suspension Period, or a Suspension Period
is put into effect within five (5) Business Days after the date such Holder
became a Notice Holder, the Operating Partnership and the Company shall so
inform such Notice Holder and shall take the actions set forth in clauses
(A),
(B),
(C)
and
(D)
above
within ten (10) Business Days after expiration of such Suspension Period in
accordance with Section 3(i);
and
(F) if,
under
applicable law, the Operating Partnership and the Company has more than one
option as to the type or manner of making any such filing, the Operating
Partnership and the Company shall make the required filing or filings in the
manner or of a type that is reasonably expected to result in the earliest
availability of a Prospectus for effecting resales of Registrable
Securities.
(ii) Notwithstanding
anything contained herein to the contrary, the Operating Partnership and the
Company shall be under no obligation to name any Holder that is not a Notice
Holder as a selling securityholder in any Shelf Registration Statement or
related Prospectus; provided,
however,
that
any Holder that becomes a Notice Holder (regardless of when such Holder became
a
Notice Holder) shall be named as a selling securityholder in a Shelf
Registration Statement or related Prospectus in accordance with the requirements
of this Section 2(d)
or
Section 2(a),
as
applicable.
(e) The
parties hereto agree that the Holders of Registrable Securities will suffer
damages, and that it would not be feasible to ascertain the extent of such
damages with precision, if:
(i) the
Initial Shelf Registration Statement has not been filed with the SEC on or
prior
to the Filing Deadline Date;
(ii) the
Initial Shelf Registration Statement has not become effective under the
Securities Act on or prior to the Effectiveness Deadline Date;
(iii) either
a
supplement to a Prospectus, a post-effective amendment or a Subsequent Shelf
Registration Statement is required to be filed with the SEC and fails to be
filed with the SEC within the prescribed period and in the manner set forth
in
Section 2(d)
(the
date such filing is required to be made being an “Additional
Filing Deadline Date”)
or, in
the case of a post-effective amendment or a Subsequent Shelf Registration
Statement, such post-effective amendment or Subsequent Registration Statement
does not become effective under the Securities Act by the Amendment
Effectiveness Deadline Date or the Subsequent Shelf Registration Statement
Effectiveness Deadline Date, as the case may be;
(iv) the
Initial Shelf Registration Statement or any Subsequent Registration Statement
is
filed with the SEC and becomes effective under the Securities Act but shall
thereafter cease to be effective (without being succeeded immediately by a
new
Registration Statement that is filed and immediately becomes effective under
the
Securities Act) or usable for the offer and sale of Registrable Securities
in
the manner contemplated by this Agreement for a period of time (including any
Suspension Period) which shall exceed thirty (30) days in the aggregate in
any
three (3) month period or ninety (90) days in the aggregate in any twelve (12)
month period;
or
(v) any
Registration Statement or amendment thereto, at the time it becomes effective
under the Securities Act, or any Prospectus relating thereto, at the time it
is
filed with the SEC or, if later, at the time the Registration Statement to
which
such Prospectus relates becomes effective under the Securities Act, shall fail
to name each Holder as a selling securityholder in such a manner as to permit
such Holder to sell its Registrable Securities pursuant to such Registration
Statement and Prospectus in accordance with applicable law, which Holder was
entitled, pursuant to the terms of this Agreement, to be so named;
provided that the Holder delivered a Notice and Questionnaire within sixty
(60)
days after such Notice and Questionnaire was first sent to such Holder upon
the
request of such Holder (it being understood that, without limitation, naming
such Holder in a manner that permits such Holder to sell only a portion of
such
Holder’s Registrable Securities referenced in such Holder’s Notice and
Questionnaire shall be deemed to be an “Event” (as defined below) for purposes
of this clause (v)).
Each
of
the events of a type described in any of the foregoing clauses (i)
through
(v)
are
individually referred to herein as an “Event,”
and
(V) the
Filing Deadline Date, in the case of clause (i)
above,
(W) the
Effectiveness Deadline Date, in the case of clause (ii)
above,
(X) the
Additional Filing Deadline Date, the Amendment Effectiveness Deadline Date
or
the Subsequent Shelf Registration Statement Effectiveness Deadline Date, as
the
case may be, in the case of clause (iii)
above,
(Y) the
date
on which the duration of the ineffectiveness or unusability of the Shelf
Registration Statement exceeds the number of days permitted by clause
(iv)
above,
in the case of clause (iv)
above,
and
(Z) the
date
the applicable Registration Statement or amendment thereto shall become
effective under the Securities Act, or the date the applicable Prospectus is
filed with the SEC or, if later, the time the Registration Statement to which
such Prospectus relates becomes effective under the Securities Act, as the
case
may be, in the case of clause (v)
above,
are
each
herein referred to as an “Event
Date.”
Events
shall be deemed to continue until the following dates with respect to the
respective types of Events:
(A) the
date
the Initial Shelf Registration Statement is filed with the SEC, in the case
of
an Event of the type described in clause (i)
above;
(B) the
date
the Initial Shelf Registration Statement becomes effective under the Securities
Act, in the case of an Event of the type described in clause (ii)
above;
(C) the
date
a supplement to a Prospectus, a post-effective amendment or a Subsequent Shelf
Registration Statement, whichever is required, is filed with the SEC (in the
case of a supplement) or becomes effective under the Securities Act (in the
case
of a post-effective amendment or a Subsequent Shelf Registration Statement),
in
the case of an Event of the type described in clause (iii)
above;
(D) the
date
the Initial Shelf Registration Statement or the Subsequent Shelf Registration
Statement, as the case may be, becomes effective and usable again, or the date
another Subsequent Shelf Registration Statement is filed with the SEC pursuant
to Section 2(b)
and
becomes effective, in the case of an Event of the type described in clause
(iv)
above;
or
(E) the
date
a supplement to the Prospectus is filed with the SEC, or the date a
post-effective amendment to the Registration Statement becomes effective under
the Securities Act, or the date a Subsequent Shelf Registration Statement
becomes effective under the Securities Act, which supplement, post-effective
amendment or Subsequent Shelf Registration Statement, as the case may be, names
as selling securityholders, in such a manner as to permit them to sell their
Registrable Securities pursuant to the Registration Statement and Prospectus
supplement in accordance with applicable law, all Holders entitled as herein
provided to be so named, in the case of an Event of the type described in clause
(v)
above.
Accordingly,
commencing on (and including) any Event Date and ending on (but excluding)
the
next date on which there are no Events that have occurred and are continuing
(an
“Additional
Interest Accrual Period”),
the
Operating Partnership and the Company agrees to pay, as additional interest
(“additional
interest”)
and
not as a penalty, an amount (the “Additional
Interest Amount”)
at the
rate described below, payable periodically on each Additional Interest Payment
Date to Record Holders, to the extent of, for each such Additional Interest
Payment Date, the unpaid Additional Interest Amount that has accrued to (but
excluding) such Additional Interest Payment Date (or, if the Additional Interest
Accrual Period shall have ended prior to such Additional Interest Payment Date,
the day immediately after the last day of such Additional Interest Accrual
Period); provided,
however,
that
any unpaid Additional Interest Amount that has accrued with respect to any
Note,
or portion thereof, called for redemption on a redemption date, delivered to
the
Operating Partnership for repurchase on November 1, 2010, 2015 or 2020 (each
such date a “repurchase date”) or delivered to the Operating Partnership for
repurchase on a fundamental change repurchase date, as the case may be, that
is
after the close of business on the Record Date relating to such Additional
Interest Payment Date and before such Additional Interest Payment Date, shall,
in each case, be instead paid, on such redemption date, repurchase date or
fundamental change repurchase date, as the case may be, to the Holder who
submitted such Note or portion thereof for redemption, repurchase or fundamental
change repurchase, as the case may be.
The
Additional Interest Amount shall accrue at a rate per annum equal to one quarter
of one percent (0.25%) for the first 90-day period beginning on, and including,
the Event Date and thereafter at a rate per annum equal to one half of one
percent (0.50%) of the aggregate principal amount of the Notes of which such
Record Holders were holders of record at the close of business on the applicable
Record Date; provided,
however,
that:
(I) unless
there shall be a default in the payment of any Additional Interest Amount,
no
Additional Interest Amounts shall accrue as to any Registrable Security from
and
after the earlier of (x) the date such security is no longer a Registrable
Security, (y) the date, and to the extent, such Note is exchanged for cash
and,
if applicable, shares of Common Stock in accordance with the Indenture and
(z)
the expiration of the Effectiveness Period;
(II) only
those Holders (or their subsequent transferees) failing to be named as selling
securityholders in the manner prescribed in Section 2(e)(v)
above
shall be entitled to receive any Additional Interest Amounts that have accrued
solely with respect to an Event of the type described in Section 2(e)(v)
above
(it being understood that this clause (II) shall not impair any right of any
Holder to receive Additional Interest Amounts that have accrued with respect
to
an Event other than an Event of the type described in Section 2(e)(v)
above);
(III) only
those Holders (or their subsequent transferees) whose delivery of a Notice
and
Questionnaire gave rise to the obligation of the Company, pursuant to Section
2(d)(i),
to
file and, if applicable, make effective under the Securities Act the supplement,
post-effective amendment or Subsequent Shelf Registration Statement referred
to
in Section 2(e)(iii)
above
shall be entitled to receive any Additional Interest Amounts that have accrued
solely with respect to an Event of the type described in Section 2(e)(iii)
above
(it being understood that this clause (III) shall not impair any right of any
Holder to receive Additional Interest Amounts that have accrued with respect
to
an Event other than an Event of the type described in Section 2(e)(iii)
above);
and
(IV) if
a Note
ceases to be outstanding during an Additional Interest Accrual Period for which
an Additional Interest Amount would be payable with respect to such Note, then
the Additional Interest Amount payable hereunder with respect to such Note
shall
be prorated on the basis of the number of full days such Note is outstanding
during such Additional Interest Accrual Period.
Except
as
provided in the final paragraph of this Section 2(e),
(i) the
rate of accrual of the Additional Interest Amount with respect to any period
shall not exceed the rate provided for in this Section 2(e)
notwithstanding the occurrence of multiple concurrent Events and (ii) following
the cure of all Events requiring the payment by the Company of Additional
Interest Amounts to the Holders pursuant to this Section, the accrual of
Additional Interest Amounts shall cease (without in any way limiting the effect
of any subsequent Event requiring the payment of Additional Interest Amounts
by
the Company).
All
installments of additional interest shall be paid by wire transfer of
immediately available funds to the account specified by the Notice Holder or,
if
no such account is specified, by mailing a check to such Notice Holder’s address
shown in the register of the registrar for the Notes or for the Underlying
Common Stock, as the case may be.
All
of
the Company’s obligations set forth in this Section 2(e)
that are
outstanding with respect to any Registrable Security at the time such
Registrable Security ceases to be a Registrable Security shall survive until
such time as all such obligations with respect to such security have been
satisfied in full (notwithstanding termination of this Agreement pursuant to
Section 9(n)).
The
parties hereto agree that the additional interest provided for in this Section
2(e)
constitutes a reasonable estimate of the damages in respect of the Notes that
may be incurred by Holders of the Notes by reason of an Event, including,
without limitation, the failure of a Shelf Registration Statement to be filed,
become effective under the Securities Act, amended or replaced to include the
names of all Notice Holders or available for effecting resales of Registrable
Securities in accordance with the provisions hereof.
If
any
Additional Interest Amounts are not paid when due, then, to the extent permitted
by law, such overdue Additional Interest Amounts, if any, shall bear interest,
compounded semi-annually, until paid at the rate of interest payable with
respect to overdue amounts on the Notes pursuant to Section 2.03 of the
Indenture.
(f) The
Trustee shall be entitled, on behalf of Holders, to seek any available remedy
for the enforcement of this Agreement, including for the payment of any
Additional Interest Amount.
3. Registration
Procedures.
In
connection with the registration obligations of the Company under Section
2
hereof,
the Operating Partnership and the Company shall:
(a) Prepare
and file with the SEC a Shelf Registration Statement or Shelf Registration
Statements on Form S-11 or Form S-3 or any other appropriate form under the
Securities Act available for the sale of the Registrable Securities by the
Holders thereof in accordance with the intended method or methods of
distribution thereof, and use their reasonable best efforts to cause each such
Shelf Registration Statement to become effective under the Securities Act and
remain effective under the Securities Act as provided herein; provided,
that,
before filing any Shelf Registration Statement or Prospectus or any amendments
or supplements thereto with the SEC, the Operating Partnership and the Company
shall furnish to the Initial Purchasers and counsel for the Holders and for
the
Initial Purchasers (or, if applicable, separate counsel for the Holders) copies
of all such documents proposed to be filed and reflect in each such document
when so filed with the SEC such comments as the Initial Purchasers or such
counsel reasonably shall propose within three (3) Business Days of the delivery
of such copies to the Initial Purchasers and such counsel.
(b) Prepare
and file with the SEC such amendments and post-effective amendments to each
Shelf Registration Statement as may be necessary to keep such Shelf Registration
Statement or Subsequent Shelf Registration Statement continuously effective
until the expiration of the Effectiveness Period; cause the related Prospectus
to be supplemented by any required Prospectus supplement and, as so
supplemented, to be filed with the SEC pursuant to Rule 424 (or any similar
provisions then in force) under the Securities Act; and comply with the
provisions of the Securities Act applicable to them with respect to the
disposition of all securities covered by each Shelf Registration Statement
during the Effectiveness Period in accordance with the intended methods of
disposition by the sellers thereof set forth in such Shelf Registration
Statement as so amended or such Prospectus as so supplemented.
(c) As
promptly as practicable, give notice to the Notice Holders, the Initial
Purchasers and counsel for the Holders and for the Initial Purchasers (or,
if
applicable, separate counsel for the Holders):
(i) when
any
Prospectus, Prospectus supplement, Shelf Registration Statement or
post-effective amendment to a Shelf Registration Statement has been filed with
the SEC and, with respect to a Shelf Registration Statement or any
post-effective amendment, when the same has become effective under the
Securities Act;
(ii) of
any
request, following the effectiveness of a Shelf Registration Statement under
the
Securities Act, by the SEC or any other governmental authority for amendments
or
supplements to such Shelf Registration Statement or the related Prospectus
or
for additional information;
(iii) of
the
issuance by the SEC or any other governmental authority of any stop order
suspending the effectiveness of any Shelf Registration Statement or the
initiation or threatening of any proceedings for that purpose;
(iv) of
the
receipt by the Company or its legal counsel of any notification with respect
to
the suspension of the qualification or exemption from qualification of any
of
the Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose;
(v) after
the
effective date of any Shelf Registration Statement filed with the SEC pursuant
to this Agreement, of the occurrence of (but not the nature of or details
concerning) a Material Event; and
(vi) of
the
determination by the Company and the Operating Partnership that a post-effective
amendment to a Shelf Registration Statement or a Subsequent Shelf Registration
Statement will be filed with the SEC, which notice may, at the discretion of
the
Company and the Operating Partnership (or as required pursuant to Section
3(i)),
state
that it constitutes a Suspension Notice, in which event the provisions of
Section 3(i)
shall
apply.
(d) Use
their
reasonable best efforts to (i) prevent the issuance of, and, if issued, to
obtain the withdrawal of, any order suspending the effectiveness of a Shelf
Registration Statement and (ii) obtain the lifting of any suspension of the
qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction in which they have been qualified for
sale, in either case at the earliest possible moment, and provide prompt notice
to each Notice Holder and the Initial Purchasers, and counsel for the Holders
and for the Initial Purchasers (or, if applicable, separate counsel for the
Holders), of the withdrawal or lifting of any such order or
suspension.
(e) If
requested by the Initial Purchasers or any Notice Holder, as promptly as
practicable incorporate in a Prospectus supplement or a post-effective amendment
to a Shelf Registration Statement such information as the Initial Purchasers,
such Notice Holder or counsel for the Holders and for the Initial Purchasers
(or, if applicable, separate counsel for the Holders) shall determine to be
required to be included therein by applicable law and make any required filings
of such Prospectus supplement or such post-effective amendment; provided,
however,
that
neither the Operating Partnership nor the Company shall be required to take
any
actions under this Section 3(e)
that, in
the written opinion of their respective counsel, are not in compliance with
applicable law.
(f) As
promptly as practicable, furnish to each Notice Holder, counsel for the Holders
and for the Initial Purchasers (or, if applicable, separate counsel for the
Holders) and the Initial Purchasers, without charge, at least one (1) conformed
copy of each Shelf Registration Statement and each amendment thereto, including
financial statements but excluding schedules, all documents incorporated or
deemed to be incorporated therein by reference and all exhibits (unless
requested in writing to the Company by such Notice Holder, such counsel or
the
Initial Purchasers).
(g) During
the Effectiveness Period, deliver to each Notice Holder, counsel for the Holders
and for the Initial Purchasers (or, if applicable, separate counsel for the
Holders) and the Initial Purchasers, in connection with any sale of Registrable
Securities pursuant to a Shelf Registration Statement, without charge, as many
copies of the Prospectus or Prospectuses relating to such Registrable Securities
(including each preliminary prospectus) and any amendment or supplement thereto
as such Notice Holder or the Initial Purchasers may reasonably request; and
the
Operating Partnership and the Company hereby consent (except during such periods
that a Suspension Notice is outstanding and has not been revoked) to the use
of
such Prospectus and each amendment or supplement thereto by each Notice Holder,
in connection with any offering and sale of the Registrable Securities covered
by such Prospectus or any amendment or supplement thereto in the manner set
forth therein.
(h) Prior
to
any public offering of the Registrable Securities pursuant to a Shelf
Registration Statement, use their reasonable best efforts to register or qualify
or cooperate with the Notice Holders in connection with the registration or
qualification (or exemption from such registration or qualification) of such
Registrable Securities for offer and sale under the securities or Blue Sky
laws
of such jurisdictions within the United States as any Notice Holder reasonably
requests in writing (which request may be included in the Notice and
Questionnaire); use their reasonable best efforts to keep each such registration
or qualification (or exemption therefrom) effective during the Effectiveness
Period in connection with such Notice Holder’s offer and sale of Registrable
Securities pursuant to such registration or qualification (or exemption
therefrom) and do any and all other acts or things reasonably necessary or
advisable to enable the disposition in such jurisdictions of such Registrable
Securities in the manner set forth in the relevant Shelf Registration Statement
and the related Prospectus; provided,
however,
that
neither the Operating Partnership nor the Company will be required to (i)
qualify generally to do business in any jurisdiction where it is not then so
qualified, or (ii) take any action that would subject it to general service
of
process in suits, other than those arising out of the offering or sale of
Registrable Securities or arising in connection with this Agreement, in any
jurisdiction where it is not now so subject.
(i) Upon:
(A) the
occurrence or existence of any pending corporate development (a “Material
Event”)
that,
in the reasonable discretion of the Company and the Operating Partnership,
makes
it appropriate to suspend the availability of any Shelf Registration Statement
and the related Prospectus; (B) the issuance by the SEC of a stop order
suspending the effectiveness of any Shelf Registration Statement or the
initiation of proceedings with respect to any Shelf Registration Statement
under
Section 8(d) or 8(e) of the Securities Act; or (C) the occurrence of any event
or the existence of any fact as a result of which any Shelf Registration
Statement shall 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 not misleading, or any Prospectus shall contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading,
(i) in
the
case of clause (A) or (C) above, subject to the next sentence, as promptly
as
practicable, prepare and file, if necessary pursuant to applicable law, a
post-effective amendment to such Shelf Registration Statement or a supplement
to
such Prospectus or any document incorporated therein by reference or file any
other required document that would be incorporated by reference into such Shelf
Registration Statement and Prospectus so that such Shelf Registration Statement
does 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 not misleading, and so that such Prospectus does not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, as thereafter delivered to the purchasers
of the Registrable Securities being sold thereunder, and, in the case of a
post-effective amendment to a Shelf Registration Statement, subject to the
next
sentence, use their reasonable best efforts to cause it to become effective
under the Securities Act as promptly as practicable, and
(ii) give
notice to the Notice Holders and counsel for the Holders and for the Initial
Purchasers (or, if applicable, separate counsel for the Holders) and to the
Initial Purchasers that the availability of the Shelf Registration Statement
is
suspended (a “Suspension
Notice”)
(and,
upon receipt of any Suspension Notice, each Notice Holder agrees not to sell
any
Registrable Securities pursuant to such Shelf Registration Statement until
such
Notice Holder’s receipt of copies of the supplemented or amended Prospectus
provided for in clause (i)
above or
until such Notice Holder is advised in writing by the Company that the
Prospectus may be used).
The
Operating Partnership and the Company will use their reasonable best efforts
to
ensure that the use of the Prospectus may be resumed (x) in the case of clause
(A) above, as soon as, in the reasonable discretion of the Operating Partnership
and the Company, such suspension is no longer appropriate, (y) in the case
of
clause (B) above, as promptly as is practicable, and (z) in the case of clause
(C) above, as soon as, in the reasonable judgment of the Operating Partnership
and the Company, the Shelf Registration Statement does 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 not misleading and
the Prospectus does not contain any untrue statement of a material fact or
omit
to state any material fact necessary in order to make the statements therein,
in
the light of the circumstances under which they were made, not misleading.
The
period during which the availability of the Shelf Registration Statement and
any
Prospectus may be suspended (the “Suspension
Period”)
without the Operating Partnership and the Company incurring any obligation
to
pay additional interest pursuant to Section 2(e)
shall
not exceed thirty (30) days in the aggregate in any three (3) month period
or
ninety (90) days in the aggregate in any twelve (12) month period.
The
Effectiveness Period shall be extended by the number of days from and including
the date of the giving of the Suspension Notice to and including the date on
which the Notice Holder received copies of the supplemented or amended
Prospectus provided in clause (i)
above,
or the date on which it is advised in writing by the Operating Partnership
and
the Company that the Prospectus may be used and has received copies of any
additional or supplemental filings that are incorporated or deemed incorporated
by reference in such Prospectus.
(j) Make
available for inspection during normal business hours by representatives for
the
Notice Holders and any underwriters participating in any disposition pursuant
to
any Shelf Registration Statement and any broker-dealers, attorneys and
accountants retained by such Notice Holders or any such underwriters, all
relevant financial and other records and pertinent corporate documents and
properties of the Operating Partnership, the Company and their respective
subsidiaries, and cause the appropriate officers, directors and employees of
the
Operating Partnership, the Company and their respective subsidiaries to make
available for inspection during normal business hours all relevant information
reasonably requested by such representatives for the Notice Holders, or any
such
underwriters, broker-dealers, attorneys or accountants in connection with such
disposition, in each case as is customary for similar “due diligence”
examinations;
provided,
however,
that
such persons shall, at the Company’s request, first agree in writing with the
Company that any information that is reasonably and in good faith designated
by
the Company in writing as confidential at the time of delivery of such
information shall be kept confidential by such persons and shall be used solely
for the purposes of exercising rights under this Agreement, unless (i)
disclosure of such information is required by court or administrative order
or
is necessary to respond to inquiries of governmental or regulatory authorities,
(ii) disclosure of such information is required by law (including any disclosure
requirements pursuant to federal securities laws in connection with the filing
of any Shelf Registration Statement or the use of any Prospectus referred to
in
this Agreement) or necessary to defend or prosecute a claim brought against
or
by any such persons (e.g.,
to
establish a “due diligence” defense), (iii) such information becomes generally
available to the public other than as a result of a disclosure or failure to
safeguard by any such person or (iv) such information becomes available to
any
such person from a source other than the Operating Partnership or the Company
and such source is not bound by a confidentiality agreement or is not otherwise
under a duty of trust to either the Operating Partnership or the Company;
provided further,
that
the foregoing inspection and information gathering shall, to the greatest extent
possible, be coordinated on behalf of all the Notice Holders and the other
parties entitled thereto by the counsel, referred to in Section 5,
for the
Holders in connection with Shelf Registration Statements.
(k) Comply
with all applicable rules and regulations of the SEC; and make generally
available to their respective securityholders earnings statements (which need
not be audited) satisfying the provisions of Section 11(a) of the Securities
Act
and Rule 158 thereunder (or any similar rule promulgated under the Securities
Act), which statements shall cover a period of twelve (12) months commencing
on
the first day of the first fiscal quarter of the Operating Partnership or the
Company, as applicable, commencing after the effective date of each Shelf
Registration Statement (within the meaning of Rule 158(c) under the Securities
Act), and which statements shall be so made generally available to the Operating
Partnership’s or the Company’s securityholders, as the case may be, no later
than forty (40) days after the end of the applicable twelve (12) month period
if
such period ends on or after December 15, 2004 and before December 15, 2006
(or
thirty five (35) days after the end of the applicable twelve (12) month period
if such period ends on or after December 15, 2006) (or, if such earnings
statement is filed with the SEC on Form 10-K under the Exchange Act, (i) seventy
five (75) days after the end of the applicable twelve (12) month period if
such
period ends before December 15, 2005 or (ii) sixty (60) days after the end
of
the applicable twelve (12) month period if such period ends on or after December
15, 2005).
(l) Cooperate
with each Notice Holder to facilitate the timely preparation and delivery of
certificates representing Registrable Securities sold pursuant to a Shelf
Registration Statement, which certificates shall not bear any restrictive
legends, and cause such Registrable Securities to be in such denominations
as
are permitted by the Indenture and registered in such names as such Notice
Holder may request in writing at least two (2) Business Days prior to any sale
of such Registrable Securities.
(m) Provide
a
CUSIP number for all Registrable Securities covered by a Shelf Registration
Statement not later than the effective date of the Initial Shelf Registration
Statement and provide the Trustee and the transfer agent for the Common Stock
with certificates for the Registrable Securities that are in a form eligible
for
deposit with The Depository Trust Company.
(n) Cooperate
and assist in any filings required to be made with the National Association
of
Securities Dealers, Inc.
(o) Take
all
actions and enter into such customary agreements (including, if requested,
an
underwriting agreement in customary form) as are necessary, or reasonably
requested by the Holders of a majority of the Registrable Securities being
sold,
in order to expedite or facilitate disposition of such Registrable Securities;
and in such connection, whether or not an underwriting agreement is entered
into
and whether or not the registration is an underwritten
registration:
(i) the
Operating Partnership and the Company shall make such representations and
warranties to the Holders of such Registrable Securities and the underwriters,
if any, in form, substance and scope as would be customarily made by the
Operating Partnership and the Company to underwriters in similar offerings
of
securities;
(ii) the
Operating Partnership and the Company shall obtain opinions of counsel of the
Operating Partnership and the Company and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably satisfactory to
the
Managing Underwriters, if any, and to the counsel to the Holders of the
Registrable Securities being sold) addressed to each selling Holder and the
underwriters, if any, covering the matters that would be customarily covered
in
opinions requested in sales of securities or underwritten
offerings;
(iii) the
Operating Partnership and the Company shall obtain “comfort letters” and updates
thereof from the Operating Partnership’s and the Company’s independent certified
public accountants (and, if necessary, any other independent certified public
accountants of any subsidiary of the Operating Partnership or the Company or
of
any business acquired by the Operating Partnership or the Company for which
financial statements are, or are required to be, included in any Shelf
Registration Statement) addressed to the underwriters, if any, and the selling
Holders of Registrable Securities (to the extent consistent with Statement
on
Auditing Standards No. 72 of the American Institute of Certified Public
Accounts), such letters to be in customary form and covering matters of the
type
that would customarily be covered in “comfort letters” to underwriters in
connection with similar underwritten offerings;
(iv) the
Operating Partnership and the Company shall, if an underwriting agreement is
entered into, cause any such underwriting agreement to contain indemnification
provisions and procedures substantially equivalent to the indemnification
provisions and procedures set forth in Section 6
hereof
with respect to the underwriters and all other parties to be indemnified
pursuant to said Section; and
(v) the
Operating Partnership and the Company shall deliver such documents and
certificates as may be reasonably requested and as are customarily delivered
in
similar offerings to the holders of a majority of the Registrable Securities
being sold and to the Managing Underwriters, if any;
the
above
to be done at each closing under any underwriting or similar agreement as and
to
the extent required thereunder.
(p) Cause
the
Indenture to be qualified under the TIA not later than the effective date of
the
Initial Shelf Registration Statement; and, in connection therewith, cooperate
with the Trustee to effect such changes to the Indenture as may be required
for
the Indenture to be so qualified in accordance with the terms of the TIA and
execute, and use their reasonable best efforts to cause the Trustee to execute,
all documents as may be required to effect such changes, and all other forms
and
documents required to be filed with the SEC to enable the Indenture to be so
qualified in a timely manner.
(q) Cause
the
Underlying Common Stock to be listed on the New York Stock
Exchange.
(r) In
the
event that any broker-dealer registered under the Exchange Act shall underwrite
any Registrable Securities or participate as a member of an underwriting
syndicate or selling group or “participate in a public offering” (within the
meaning of the Conduct Rules (the “NASD
Rules”)
of the
National Association of Securities Dealers, Inc.) thereof, whether as a Holder
of such Registrable Securities or as an underwriter, a placement or sales agent
or a broker or dealer in respect thereof, or otherwise, the Operating
Partnership and the Company will assist such broker-dealer in complying with
the
requirements of such NASD Rules, including, without limitation, by: (i) if
such
NASD Rules, including NASD Rule 2720, shall so require, engaging a “qualified
independent underwriter” (as defined in NASD Rule 2720) to participate in the
preparation of the Shelf Registration Statement relating to such Registrable
Securities, to exercise usual standards of due diligence in respect thereof
and,
if any portion of the offering contemplated by such Shelf Registration Statement
is an underwritten offering or is made through a placement or sales agent,
to
recommend the yield or price, as the case may be, of such Registrable
Securities; (ii) indemnifying any such qualified independent underwriter to
the
extent of the indemnification of underwriters provided in Section 6
hereof;
and (iii) providing such information to such broker-dealer as may be required
in
order for such broker-dealer to comply with the requirements of the NASD
Rules.
4. Holder’s
Obligations.
Each
Holder agrees, by acquisition of the Registrable Securities, that no Holder
of
Registrable Securities shall be entitled to sell any of such Registrable
Securities pursuant to a Shelf Registration Statement or to receive a Prospectus
relating thereto, unless such Holder has furnished the Operating Partnership
and
the Company
with
a
Notice and Questionnaire as required pursuant to Section 2(d)
hereof
(including the information required to be included in such Notice and
Questionnaire) and the information set forth in the next sentence. Each Notice
Holder agrees promptly to furnish to the Operating Partnership and the Company
all information required to be disclosed in order to make the information
previously furnished to the Company by such Notice Holder not misleading and
any
other information regarding such Notice Holder and the distribution of such
Registrable Securities as the Operating Partnership and the Company may from
time to time reasonably request. Any sale of any Registrable Securities by
any
Holder shall constitute a representation and warranty by such Holder that the
information relating to such Holder and its plan of distribution is as set
forth
in the Prospectus delivered by such Holder in connection with such disposition,
that such Prospectus does not as of the time of such sale contain any untrue
statement of a material fact relating to or provided by such Holder or its
plan
of distribution and that such Prospectus does not as of the time of such sale
omit to state any material fact relating to or provided by such Holder or its
plan of distribution necessary in order to make the statements in such
Prospectus, in the light of the circumstances under which they were made, not
misleading.
5. Registration
Expenses.
The
Operating Partnership and the Company shall bear all fees and expenses incurred
in connection with the performance by the Operating Partnership and Company
of
their obligations under Section 2
and
Section 3
of this
Agreement whether or not any of the Shelf Registration Statements are filed
or
declared effective under the Securities Act. Such fees and expenses
(“Registration
Expenses”)
shall
include, without limitation, (i) all registration and filing fees and expenses
(including, without limitation, fees and expenses (x) with respect to filings
required to be made with the National Association of Securities Dealers, Inc.
and (y) of compliance with federal securities laws and state securities or
Blue
Sky laws (including, without limitation, reasonable fees and disbursements
of
counsel for the Holders in connection with Blue Sky qualifications of the
Registrable Securities under the laws of such jurisdictions as the Notice
Holders of a majority of the Registrable Securities being sold pursuant to
a
Shelf Registration Statement may designate), (ii) all printing expenses
(including, without limitation, expenses of printing certificates for
Registrable Securities in a form eligible for deposit with The Depository Trust
Company and printing Prospectuses), (iii) all duplication and mailing expenses
relating to copies of any Shelf Registration Statement or Prospectus delivered
to any Holders hereunder, (iv) all fees and disbursements of counsel for the
Operating Partnership and the Company, (v) all fees and disbursements of the
Trustee and its counsel and of the registrar and transfer agent for the Common
Stock, and (vi) Securities Act liability insurance obtained by the Operating
Partnership and the Company in their sole discretion. In addition, the Operating
Partnership and the Company shall pay their own internal expenses (including,
without limitation, all salaries and expenses of officers and employees
performing legal or accounting duties), the expense of any annual audit or
quarterly review, the fees and expenses incurred in connection with the listing
by the Company of the Registrable Securities on any securities exchange or
quotation system on which similar securities of the Company are then listed
and
the fees and expenses of any person, including, without limitation, special
experts, retained by the Company.
6. Indemnification,
Contribution.
(a) The
Operating Partnership and the Company, jointly and severally, agree to
indemnify, defend and hold harmless each Initial Purchaser, each Holder, each
person (a “Controlling
Person”),
if
any, who controls any Initial Purchaser or Holder within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act and the respective
officers, directors, partners, employees, representatives and agents of any
Initial Purchaser, the Holders or any Controlling Person (each, an “Indemnified
Party”),
from
and against any loss, damage, expense, liability, claim or any actions in
respect thereof (including the reasonable cost of investigation) which such
Indemnified Party may incur or become subject to under the Securities Act,
the
Exchange Act or otherwise, insofar as such loss, damage, expense, liability,
claim or action arises out of or is based upon any untrue statement or alleged
untrue statement of a material fact contained in any Shelf Registration
Statement or Prospectus, including any document incorporated by reference
therein, or in any amendment or supplement thereto or in any preliminary
prospectus, or arises out of or is based upon any omission or alleged omission
to state a material fact required to be stated in any Shelf Registration
Statement or in any amendment or supplement thereto or necessary to make the
statements therein not misleading, or arises out of or is based upon any
omission or alleged omission to state a material fact necessary in order to
make
the statements made in any Prospectus or in any amendment or supplement thereto
or in any preliminary prospectus, in the light of the circumstances under which
such statements were made, not misleading, and the Operating Partnership and
the
Company shall, jointly and severally, reimburse, as incurred, the Indemnified
Parties for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, damage, expense,
liability, claim or action in respect thereof; provided,
however,
that
neither the Operating Partnership nor the Company shall be required to provide
any indemnification pursuant to this Section 6(a)
in any
such case insofar as any such loss, damage, expense, liability, claim or action
arises out of or is based upon any untrue statement or omission or alleged
untrue statement or omission of a material fact contained in, or omitted from,
and in conformity with information furnished in writing by or on behalf of
an
Initial Purchaser or a Holder to the Operating Partnership and the Company
expressly for use in, any Shelf Registration Statement or any Prospectus;
provided further
that,
with respect to any untrue statement or omission or alleged untrue statement
or
omission made in any preliminary prospectus relating to a Shelf Registration
Statement, the indemnity agreement contained in this Section 6(a) shall not
inure to the benefit of any Holder from whom the person asserting any such
losses, damages, expenses, liabilities, claims or actions purchased the
Registrable Securities concerned, to the extent that a prospectus relating
to
such Registrable Securities was required to be delivered by such Holder under
the Securities Act in connection with such purchase and any such loss, damage,
expenses, liability, claim or action of such Holder results from the fact that
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Registrable Securities to such person, at
or
prior to the written confirmation of the sale of such Registrable Securities
to
such person, a copy of the final prospectus provided the Company had previously
furnished sufficient copies of such final prospectus to such Holder in a timely
manner as to reasonably permit such Holder to send or give a copy of such final
prospectus to such person at or prior to the written confirmation of such sale;
provided further,
however,
that
this indemnity agreement will be in addition to any liability which the
Operating Partnership or the Company may otherwise have to such Indemnified
Party.
(b) Each
Holder, severally and not jointly, agrees to indemnify, defend and hold harmless
the Operating Partnership and the Company and their respective directors,
officers, employees and any person who controls either the Operating Partnership
or the Company within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act (each, a “Company
Indemnified Party”)
from
and against any loss, damage, expense, liability, claim or any actions in
respect thereof (including the reasonable cost of investigation) which such
Company Indemnified Party may incur or become subject to under the Securities
Act, the Exchange Act or otherwise, insofar as such loss, damage, expense,
liability, claim or action arises out of or is based upon any untrue statement
or alleged untrue statement of a material fact contained in, and in conformity
with information (the “Holder
Information”)
furnished in writing by or on behalf of such Holder to the Operating Partnership
and the Company expressly for use in, any Shelf Registration Statement or
Prospectus, or arises out of or is based upon any omission or alleged omission
to state a material fact in connection with such Holder Information required
to
be stated in any Shelf Registration Statement or Prospectus or necessary to
make
such Holder Information not misleading; and, subject to the limitation set
forth
in the immediately preceding clause, each Holder shall reimburse, as incurred,
the Operating Partnership or the Company, as applicable, for any legal or other
expenses reasonably incurred by the Operating Partnership or the Company or
any
such controlling person in connection with investigating or defending any loss,
damage, expense, liability, claim or action in respect thereof. This indemnity
agreement will be in addition to any liability which such Holder may otherwise
have to the Operating Partnership or the Company or any of its controlling
persons. In no event shall the liability of any selling Holder of Registrable
Securities hereunder be greater in amount than the dollar amount of the proceeds
received by such Holder upon the sale, pursuant to the Shelf Registration
Statement, of the Registrable Securities giving rise to such indemnification
obligation.
(c) If
any
action, suit or proceeding (each, a “Proceeding”)
is
brought against any person in respect of which indemnity may be sought pursuant
to either Section 6(a)
or
Section 6(b),
such
person (the “Indemnified
Party”)
shall
promptly notify the person against whom such indemnity may be sought (the
“Indemnifying
Party”)
in
writing of the institution of such Proceeding and the Indemnifying Party shall
assume the defense of such Proceeding; provided,
however,
that
the omission to so notify such Indemnifying Party shall not relieve such
Indemnifying Party from any liability which it may have to such Indemnified
Party or otherwise. Such Indemnified Party shall have the right to employ its
own counsel in any such case, but the fees and expenses of such counsel shall
be
at the expense of such Indemnified Party unless the employment of such counsel
shall have been authorized in writing by such Indemnifying Party in connection
with the defense of such Proceeding or such Indemnifying Party shall not have
employed counsel to have charge of the defense of such Proceeding within thirty
(30) days of the receipt of notice thereof or such Indemnified Party shall
have
reasonably concluded upon the written advice of counsel that there may be one
or
more defenses available to it that are different from, additional to or in
conflict with those available to such Indemnifying Party
(in
which
case such Indemnifying Party shall not have the right to direct that portion
of
the defense of such Proceeding on behalf of the Indemnified Party, but such
Indemnifying Party may employ counsel and participate in the defense thereof
but
the fees and expenses of such counsel shall be at the expense of such
Indemnifying Party), in any of which events such reasonable fees and expenses
shall be borne by such Indemnifying Party and paid as incurred (it being
understood, however, that such Indemnifying Party shall not be liable for the
expenses of more than one separate counsel in any one Proceeding or series
of
related Proceedings together with reasonably necessary local counsel
representing the Indemnified Parties who are parties to such action). An
Indemnifying Party shall not be liable for any settlement of such Proceeding
effected without the written consent of such Indemnifying Party, but if settled
with the written consent of such Indemnifying Party, such Indemnifying Party
agrees to indemnify and hold harmless an Indemnified Party from and against
any
loss or liability by reason of such settlement. Notwithstanding the foregoing
sentence, if at any time an Indemnified Party shall have requested an
Indemnifying Party to reimburse such Indemnified Party for fees and expenses
of
counsel as contemplated by the second sentence of this paragraph, then such
Indemnifying Party agrees that it shall be liable for any settlement of any
Proceeding effected without its written consent if (i) such settlement is
entered into more than sixty (60) Business Days after receipt by such
Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall
not have fully reimbursed such Indemnified Party in accordance with such request
prior to the date of such settlement and (iii) such Indemnified Party shall
have
given such Indemnifying Party at least thirty (30) days’ prior notice of its
intention to settle. No Indemnifying Party shall, without the prior written
consent of any Indemnified Party, effect any settlement of any pending or
threatened Proceeding in respect of which such Indemnified Party is or could
have been 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 claims that are the subject matter
of such Proceeding and does not include an admission of fault or culpability
or
a failure to act by or on behalf of such Indemnified Party.
(d) If
the
indemnification provided for in this Section 6
is
unavailable to an Indemnified Party under Section 6(a)
or
Section 6(b),
or
insufficient to hold such Indemnified Party harmless, in respect of any losses,
damages, expenses, liabilities, claims or actions referred to therein, then
each
applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party,
shall contribute to the amount paid or payable by such Indemnified Party as
a
result of such losses, damages, expenses, liabilities, claims or actions (i)
in
such proportion as is appropriate to reflect the relative benefits received
by
the Operating Partnership and the Company, on the one hand, and by the Holders
or the Initial Purchasers, on the other hand, from the offering of the
Registrable Securities or (ii) if the allocation provided by clause (i) above
is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Operating Partnership and the Company, on the one hand,
and of the Holders or the Initial Purchasers, on the other hand, in connection
with the statements or omissions which resulted in such losses, damages,
expenses, liabilities, claims or actions, as well as any other relevant
equitable considerations.
The
relative fault of the Operating Partnership and the Company, on the one hand,
and of the Holders or the Initial Purchasers, on the other hand, shall be
determined by reference to, among other things, whether the untrue statement
or
alleged untrue statement of a material fact or omission or alleged omission
relates to information supplied by the Operating Partnership and the Company
or
by the Holders or the Initial Purchasers and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of
the
losses, damages, expenses, liabilities, claims and actions referred to above
shall be deemed to include any reasonable legal or other fees or expenses
reasonably incurred by such party in connection with investigating or defending
any Proceeding.
(e) The
Operating Partnership, the Company, the Holders and the Initial Purchasers
agree
that it would not be just and equitable if contribution pursuant to this Section
6
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
6(d)
above.
Notwithstanding the provisions of this Section 6,
no
Holder shall be required to contribute any amount in excess of the amount by
which the total price at which the Registrable Securities giving rise to such
contribution obligation and sold by such Holder were offered to the public
exceeds the amount of any damages which it has otherwise been required to pay
by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Holders’
respective obligations to contribute pursuant to this Section 6
are
several in proportion to the respective amount of Registrable Securities they
have sold pursuant to a Shelf Registration Statement, and not joint. The
remedies provided for in this Section 6
are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(f) The
indemnity and contribution provisions contained in this Section 6
shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of any Holder
or
the Initial Purchasers or any person controlling any Holder or Initial
Purchaser, or the Operating Partnership, the Company, or the Operating
Partnership’s or the Company’s officers or directors or any person controlling
the Operating Partnership or the Company and (iii) the sale of any Registrable
Security by any Holder.
7. Information
Requirements.
(a) Each
of
the Operating Partnership and the Company covenants that, if at any time before
the end of the Effectiveness Period it is not subject to the reporting
requirements of the Exchange Act, it will cooperate with any Holder of
Registrable Securities and take such further action as any Holder of Registrable
Securities may reasonably request in writing (including, without limitation,
making such representations as any such Holder may reasonably 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 limitations of the exemptions provided by Rule 144,
Rule 144A, Regulation S and Regulation D under the Securities Act and
customarily taken in connection with sales pursuant to such exemptions. Upon
the
written request of any Holder, the Operating Partnership or the Company, as
applicable, shall deliver to such Holder a written statement as to whether
the
Operating Partnership or the Company has complied with the reporting
requirements of the Exchange Act, unless such a statement has been included
in
the most recent report of the Operating Partnership or the Company, as the
case
may be, filed with the SEC pursuant to Section 13 or Section 15(d) of Exchange
Act.
(b) Each
of
the Operating Partnership and the Company shall file the reports required to
be
filed by it under the Exchange Act and shall comply with all other requirements
set forth in the instructions to Form S-3 in order to allow it to be eligible
to
file registration statements on Form S-3.
8. Underwritten
Registrations.
(a) If
any of
the Registrable Securities covered by the Shelf Registration Statement are
to be
offered and sold in an underwritten offering, the investment banker or
investment bankers and manager or managers that will administer the offering
(“Managing
Underwriters”)
shall
be selected by the holders of a majority of such Registrable Securities to
be
included in such offering.
(b) No
person
may participate in any underwritten registration hereunder unless such person
(i) agrees to sell such person’s Registrable Securities on the basis reasonably
provided in any underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
9. Miscellaneous.
(a) Remedies.
Each of
the Operating Partnership and the Company acknowledges and agrees that any
failure by it to comply with its obligations under this Agreement may result
in
material irreparable injury to the Initial Purchasers and the Holders for which
there is no adequate remedy at law, that it will not be possible to measure
damages for such injuries precisely and that, in the event of any such failure,
any Initial Purchaser or Holder may obtain such relief as may be required to
specifically enforce the Operating Partnership’s or the Company’s obligations
under this Agreement. Each of the Operating Partnership and the Company further
agrees to waive the defense in any action for specific performance that a remedy
at law would be adequate. Notwithstanding the foregoing two sentences, this
Section 9(a)
shall
not apply to the subject matter referred to in and contemplated by Section
2(e).
(b) No
Conflicting Agreements.
Each of
the Operating Partnership and the Company is not, as of the date hereof, a
party
to, nor shall it, on or after the date of this Agreement, enter into, any
agreement with respect to its securities that conflicts with the rights granted
to the Holders in this Agreement. Each of the Operating Partnership and the
Company represents and warrants that the rights granted to the Holders hereunder
do not in any way conflict with the rights granted to the holders of the
Operating Partnership’s or the Company’s securities under any other agreements.
Neither the Operating Partnership nor the Company will take any action with
respect to the Registrable Securities which would adversely affect the ability
of any of the Holders to include such Registrable Securities in a registration
undertaken pursuant to this Agreement. Each of the Operating Partnership and
the
Company represents and covenants that it has not granted, and shall not grant,
to any of its security holders (other than the Holders in such capacity) the
right to include any of its securities in any Shelf Registration Statement
filed
pursuant to this Agreement.
(c) 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 Operating Partnership and
the
Company has obtained the written consent of Holders of a majority of outstanding
Registrable Securities; provided,
however,
that,
no consent is necessary from any of the Holders in the event that this Agreement
is amended, modified or supplemented for the purpose of curing any ambiguity,
defect or inconsistency that does not adversely affect the rights of any
Holders. Notwithstanding the foregoing, a waiver or consent to depart from
the
provisions hereof with respect to a matter that relates exclusively to the
rights of Holders of Registrable Securities whose securities are being sold
pursuant to a Shelf Registration Statement and that does not directly or
indirectly affect the rights of other Holders of Registrable Securities may
be
given by Holders of at least a majority of the Registrable Securities being
sold
by such Holders pursuant to such Shelf Registration Statement; provided,
however,
that
the provisions of this sentence may not be amended, modified, or supplemented
except in accordance with the provisions of the immediately preceding sentence.
Each Holder of Registrable Securities outstanding at the time of any such
amendment, modification, supplement, waiver or consent or thereafter shall
be
bound by any such amendment, modification, supplement, waiver or consent
effected pursuant to this Section 9(c),
whether
or not any notice, writing or marking indicating such amendment, modification,
supplement, waiver or consent appears on the Registrable Securities or is
delivered to such Holder.
(d) Notices.
All
notices and other communications provided for or permitted hereunder shall
be
made in writing by hand delivery, by telecopier, by courier guaranteeing
overnight delivery or by first-class mail, return receipt requested, and shall
be deemed given (A) when made, if made by hand delivery, (B) upon confirmation,
if made by telecopier, (C) one (1) Business Day after being deposited with
such
courier, if made by overnight courier or (D) on the date indicated on the notice
of receipt, if made by first-class mail, to the parties as follows:
(i) if
to a
Holder, at the most current address given by such Holder to the Operating
Partnership and the Company in a Notice and Questionnaire or any amendment
thereto;
(ii) if
to the
Operating Partnership or the Company, to:
Essex
Portfolio, L.P.
Essex
Property Trust, Inc.
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Attention:
Chief Financial Officer
Telecopy
No.: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) if
to the
Initial Purchasers, to:
c/o
UBS
Securities LLC
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Attention:
Syndicate Department
Telecopy
No.: (▇▇▇) ▇▇▇-▇▇▇▇
with
a
copy to (for informational purposes only):
UBS
Securities LLC
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Attention:
Legal Department
Telecopy
No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
UBS
Securities LLC
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Attention:
Syndicate Department
Telecopy
No.: (▇▇▇) ▇▇▇-▇▇▇▇
or
to
such other address as such person may have furnished to the other persons
identified in this Section 9(d)
in
writing in accordance herewith.
(e) Majority
of Registrable Securities.
For
purposes of determining what constitutes holders of a majority of Registrable
Securities, as referred to in this Agreement, a majority shall constitute a
majority in aggregate principal amount of Registrable Securities, treating
each
relevant holder of shares of Underlying Common Stock of the Notes as a holder
of
the aggregate principal amount of Notes in respect of which such Common Stock
was issued.
(f) Approval
of Holders.
Whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder,
Registrable
Securities held by the Operating Partnership, the Company or their respective
“affiliates” (as such term is defined in Rule 405 under the Securities Act)
(other than the Initial Purchasers or subsequent Holders of Registrable
Securities, if the Initial Purchasers or such subsequent Holders are deemed
to
be such affiliates solely by reason of their holdings of such Registrable
Securities) shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage.
(g) Third
Party Beneficiaries.
The
Holders shall be third party beneficiaries to the agreements made hereunder
between the Operating Partnership and the Company, on the one hand, and the
Initial Purchasers, on the other hand, and shall have the right to enforce
such
agreements directly to the extent they may deem such enforcement necessary
or
advisable to protect their rights or the rights of Holders hereunder. The
Trustee shall be entitled to the rights granted to it pursuant to this
Agreement.
(h) Successors
and Assigns.
Any
person who purchases any Registrable Security from any Initial Purchaser or
from
any Holder shall be deemed, for purposes of this Agreement, to be an assignee
of
such Initial Purchaser or such Holder, as the case may be. This Agreement shall
inure to the benefit of and be binding upon the respective successors and
assigns of each of the parties hereto and shall inure to the benefit of and
be
binding upon each Holder of any Registrable Security.
(i) 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 original and all of which taken together shall constitute one and the
same
agreement.
(j) Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
(k) Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF
THE STATE OF NEW YORK, INCLUDING, WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402
OF THE NEW YORK GENERAL OBLIGATION LAW AND NEW YORK CIVIL PRACTICE LAW AND
RULES
327(b).
(l) Severability.
If any
term, provision, covenant or restriction of this Agreement is held to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated thereby, and
the
parties hereto shall use their reasonable best efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction, it being intended
that all of the rights and privileges of the parties shall be enforceable to
the
fullest extent permitted by law.
(m) Entire
Agreement.
This
Agreement is intended by the parties hereto as a final expression of their
agreement and is intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein and the registration rights granted by the Company
with
respect to the Registrable Securities. Except as provided in the Purchase
Agreement, there are no restrictions, promises, warranties or undertakings,
other than those set forth or referred to herein, with respect to the
registration rights granted by the Operating Partnership and the Company with
respect to the Registrable Securities. This Agreement supersedes all prior
agreements and undertakings among the parties with respect to such registration
rights. No party hereto shall have any rights, duties or obligations other
than
those specifically set forth in this Agreement.
(n) Termination.
This
Agreement and the obligations of the parties hereunder shall terminate upon
the
end of the Effectiveness Period, except for any liabilities or obligations
under
Section 4,
Section
5
or
Section 6
hereof
and the obligations to make payments of and provide for additional interest
under Section 2(e)
hereof
to the extent such additional interest accrues prior to the end of the
Effectiveness Period and to the extent any overdue additional interest accrues
in accordance with the last paragraph of such Section 2(e),
each of
which shall remain in effect in accordance with its terms.
(o) Submission
to Jurisdiction.
Except
as set forth below, no claim, counterclaim or dispute of any kind or nature
whatsoever arising out of or in any way relating to this Agreement
(“Claim”)
may be
commenced, prosecuted or continued in any court other than the courts of the
State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York, which courts shall
have jurisdiction over the adjudication of such matters, and each of the
Operating Partnership and the Company hereby consents to the jurisdiction of
such courts and personal service with respect thereto. Each of the Operating
Partnership and the Company hereby consents to personal jurisdiction, service
and venue in any court in which any Claim arising out of or in any way relating
to this Agreement is brought by any third party against any Initial Purchaser.
Each of the Operating Partnership and the Company agrees that a final judgment
in any such Proceeding brought in any such court shall be conclusive and binding
upon the Operating Partnership and the Company, as applicable, and may be
enforced in any other courts in the jurisdiction of which the Operating
Partnership and the Company, as applicable, is or may be subject, by suit upon
such judgment.
[The
Remainder of This Page Intentionally Left Blank; Signature Page
Follows]
Very
truly yours,
ESSEX
PORTFOLIO, L.P.
By:
Essex
Property Trust, Inc.,
Its General Partner
By:
/s/▇▇▇▇▇▇▇
Dance
Name:
Title:
ESSEX
PROPERTY TRUST, INC.
By: /s/▇▇▇▇▇▇▇
Dance
Name:
Title:
Accepted
and agreed to as of the date first above written:
UBS
SECURITIES, LLC
By:/s/
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Name:
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Title:
Managing Director
By: /s/
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Name:
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Title:
Associate Director
BEAR
▇▇▇▇▇▇▇ & CO, INC.
By:/s/
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Name:
▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Senior Managing Director