REGISTRATION RIGHTS AGREEMENT BY AND AMONG NY CREDIT TRUST AND CERTAIN PERSONS LISTED ON SCHEDULE 1 HERETO
EXHIBIT 4.2
BY AND AMONG
NY CREDIT TRUST
AND
CERTAIN PERSONS
LISTED ON SCHEDULE 1 HERETO
dated as of
November 10, 2006
TABLE OF CONTENTS
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SECTION 1.
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DEFINITIONS | 1 | ||||
SECTION 2.
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SHELF REGISTRATIONS | 3 | ||||
SECTION 3.
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BLACK-OUT PERIODS | 4 | ||||
SECTION 4.
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REGISTRATION PROCEDURES | 4 | ||||
SECTION 5.
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INDEMNIFICATION | 7 | ||||
SECTION 6.
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MARKET STAND-OFF AGREEMENT. | 9 | ||||
SECTION 7.
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COVENANTS RELATING TO RULE 144 | 9 | ||||
SECTION 8.
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MISCELLANEOUS | 9 |
-i-
This REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of November 10, 2006,
which will be effective upon the closing of the IPO (as defined below), is made and entered into by
and among NY Credit Trust, a Maryland real estate investment trust (the “Trust”), and
certain persons listed on Schedule 1 hereto (such persons, in their capacity as holders of
Registrable Securities, the “Holders,” and each the “Holder”). Capitalized terms
not otherwise defined herein shall have the meanings ascribed to them in Section 1 hereto.
WITNESSETH:
WHEREAS, NY Credit Operating Partnership LP (formerly NY Credit Real Estate Fund I, L.P.), a
Delaware limited partnership (“NY Credit OP”), and the Holders have entered into
subscription agreements and/or partnership unit agreements, pursuant to which the Holders either
(i) subscribed or (ii) exchanged or caused to be exchanged their partnership interests in, and
other rights with respect to NY Credit OP, in each case for limited partnership units of NY Credit
OP exchangeable, under certain circumstances, for common shares of beneficial interest, par value
$0.01 per share, of the Trust (the “Common Shares”) on a one-for-one basis (such exchanged
units in the aggregate, the “Partnership Units”); and
WHEREAS, the Trust desires to enter into this Agreement with the Holders in order to grant the
Holders the registration rights contained herein.
NOW, THEREFORE, in consideration of the premises and the mutual promises and covenants
contained in this Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Definitions. As used in this Agreement, the following terms shall have the
following meanings:
“Affiliate” shall mean, when used with reference to a specified Person, (i) any Person
that directly or indirectly through one or more intermediaries, Controls or is Controlled by or is
under common Control with the specified Person; (ii) any Person who, from time to time, is a member
of the Immediate Family of a specified Person; (iii) any Person who, from time to time, is an
officer, director, trustee or manager of a specified Person; or (iv) any Person who, directly or
indirectly, is the beneficial owner of 50% or more of any class of equity securities or other
ownership interests of the specified Person, or of which the specified Person is directly or
indirectly the owner of 50% or more of any class of equity securities or other ownership interests.
“Agreement” shall mean this Registration Rights Agreement as originally executed and
as amended, supplemented or restated from time to time.
“Board” shall mean the Board of Trustees of the Trust.
“Business Day” shall mean each day other than a Saturday, a Sunday or any other day on
which banking institutions in the State of New York are authorized or obligated by law or executive
order to be closed.
“Commission” shall mean the Securities and Exchange Commission and any successor
thereto.
“Common Shares” shall mean the common shares of beneficial interest, par value $0.01
per share, of the Trust.
“Control” (including the terms “Controlling,” “Controlled by” and
“under common Control with”) shall mean the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of a Person through the ownership of
Voting Power, by contract or otherwise.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended (or any
corresponding provision of succeeding law) and the rules and regulations thereunder.
“Holder” shall mean each holder of Partnership Units and/or the Registrable Securities
issuable upon exchange of the Partnership Units, listed in Schedule 1 hereto, in his, her
or its capacity as a holder of Registrable Securities. For purposes of this Agreement, the Trust
may deem and treat the registered holder of a Registrable Security as the Holder and absolute owner
thereof, unless notified to the contrary in writing by the registered Holder thereof.
“Immediate Family” shall mean a spouse, lineal descendant, father, mother, brother or
sister, niece, nephew, mother-in-law, father-in-law, sister-in-law or brother-in-law of the
transferor, in each case whether by birth or adoption and including stepchildren.
“IPO” means an underwritten initial public offering by the Trust of the Common Shares
pursuant to an effective registration statement filed with the Commission under the Securities Act,
or any comparable document under any similar federal statute then in force.
“NY Credit OP” shall have the meaning set forth in the Recitals hereof.
“Partnership Units” shall have the meaning set forth in the Recitals hereof.
“Person” shall mean any individual, partnership, corporation, limited liability
company, joint venture, association, trust, unincorporated organization or other governmental or
legal entity.
“Registrable Securities” shall mean at any time a class of equity securities of the
Trust or of a successor to the entire business of the Trust which (i) are the Common Shares that
may be acquired by the Holders in connection with the exercise by such Holders of the exchange
rights associated with the Partnership Units and (ii) are of a class of securities that are listed
for trading on a national securities exchange; provided, however, such Registrable
Securities shall cease to be Registrable Securities upon the earliest to occur of (A) a
registration statement with respect to the sale of such Registrable Securities shall have become
effective under the Securities Act and all such Registrable Securities shall have been disposed of
in accordance with such registration statement, (B) such Registrable Securities shall have been
sold in accordance with Rule 144 (or any successor provision) under the Securities Act, (C) such
Registrable Securities become eligible to be publicly sold without limitation as to amount or
manner of sale pursuant to Rule 144(k) (or any successor provision) under the Securities Act, (D)
such Registrable Securities have ceased to be outstanding or (E) the two-year anniversary of the
effectiveness of the Shelf Registration Statement.
“Registration Expenses” shall mean (i) the fees and disbursements of counsel and
independent public accountants for the Trust incurred in connection with the Trust’s performance of
or compliance with this Agreement, including the expenses of any special audits or “comfort”
letters required by or incident to such performance and compliance, and any premiums and other
costs of policies of insurance obtained by the Trust against liabilities arising out of the sale of
any securities and (ii) all registration, filing and stock exchange fees, all fees and expenses of
complying with securities or “blue sky” laws, all
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fees and expenses of custodians, transfer agents and registrars, all printing expenses,
messenger and delivery expenses and any fees and disbursements of one common counsel retained by
the Holders of a majority of the Registrable Securities; provided, however,
“Registration Expenses” shall not include any out-of-pocket expenses of the Holders,
transfer taxes, underwriting or brokerage commissions or discounts associated with effecting any
sales of Registrable Securities that may be offered, which expenses shall be borne by each Holder
of Registrable Securities on a pro rata basis with respect to the Registrable Securities so sold.
“Securities Act” shall mean the Securities Act of 1933, as amended (or any successor
corresponding provision of succeeding law), and the rules and regulations thereunder.
“Shelf Registration Statement” shall have the meaning set forth in Section 2(a)
hereof.
“Stand-Off Period” shall have the meaning set forth in Section 6 hereof.
“Trust” shall have the meaning set forth in the introductory paragraph hereof.
“Voting Power” shall mean voting securities or other voting interests ordinarily (and
apart from rights accruing under special circumstances) having the right to vote in the election of
board members or Persons performing substantially equivalent tasks and responsibilities with
respect to a particular entity.
Section 2. Shelf Registrations.
a. Shelf Registration. The Trust agrees to use commercially reasonable efforts to
file with the Commission on the earlier of (1) no later than 45 days following the receipt of a
written request from any Holder, which request may not be given until at least 270 days following
the completion of the IPO, a registration statement under the Securities Act for the offering on a
continuous or delayed basis in the future covering resales of the Registrable Securities held by
such holder, or (2) no later than 14 months following the completion of the IPO and in the case of
this clause (2) only during a period of time that the issuer of the Registrable Securities is
eligible to use Form S-3 (or any similar or successor form), a registration statement under the
Securities Act on Form S-3 (or any similar or successor form) for the offering on a continuous or
delayed basis in the future covering resales of the Registrable Securities (in each case, the
“Shelf Registration Statement”), and will use commercially reasonable efforts to cause such
Shelf Registration Statement to be declared effective by the Commission as soon as practicable
thereafter. The Shelf Registration Statement shall be on an appropriate form and the registration
statement and any form of prospectus included therein (or prospectus supplement relating thereto)
shall reflect the plan of distribution or method of sale as the Holders may from time to time
notify the Trust.
b. Effectiveness. The Trust shall use commercially reasonable efforts to keep the
Shelf Registration Statement continuously effective until the second anniversary of the date on
which the Shelf Registration Statement becomes effective. During the period that the Shelf
Registration Statement is effective, the Trust shall supplement or make amendments to the Shelf
Registration Statement, if required by the Securities Act or if reasonably requested by the Holders
(whether or not required by the form on which the securities are being registered), including to
reflect any specific plan of distribution or method of sale, and shall use its commercially
reasonable efforts to have such supplements and amendments declared effective, if required, as soon
as practicable after filing.
Section 3. Black-Out Periods.
Notwithstanding anything herein to the contrary, the Trust shall have the right, exercisable
from time to time by delivery of a notice authorized by the Board, on not more than four occasions
during the
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effectiveness of the Shelf Registration Statement, to require the Holders not to sell
Registrable Securities pursuant to the Shelf Registration Statement or similar document under the
Securities Act filed pursuant to Section 2 or to suspend the effectiveness thereof if at
the time of the delivery of such notice, the Board has considered a plan to engage no later than 90
days following the date of such notice in a firm commitment underwritten public offering or if a
majority of the independent trustees of the Board have reasonably and in good faith determined that
such registration and offering, continued effectiveness or sale would materially interfere with any
material transaction involving the Trust; provided, however, that in no event shall
the aggregate number of days of the black-out period exceed 90 days in any twelve month period.
The Trust, as soon as practicable, shall (i) give the Holders prompt written notice in the event
that the Trust has suspended sales of Registrable Securities pursuant to this Section 3,
(ii) give the Holders prompt written notice of the completion of such offering or material
transaction and (iii) promptly file any amendment necessary for the Shelf Registration Statement or
any prospectus of the Holders in connection with the completion of such event.
Each Holder agrees by acquisition of the Registrable Securities that upon receipt of any
notice from the Trust of the happening of any event of the kind described in this Section
3, such Holder will forthwith discontinue its disposition of Registrable Securities pursuant to
the Shelf Registration Statement until such Holder’s receipt of the notice of completion of such
event.
Section 4. Registration Procedures.
a. In connection with the filing of any registration statement as provided in this Agreement,
the Trust shall use commercially reasonable efforts to, as expeditiously as reasonably practicable:
(i) prepare and file with the Commission the requisite registration statement
(including a prospectus therein and any supplement thereto) to effect such registration and
use its commercially reasonable efforts to cause such registration statement to become
effective; provided, however, that before filing such registration statement
or any amendments or supplements thereto, the Trust will furnish copies of all such
documents proposed to be filed to counsel for the sellers of Registrable Securities covered
by such registration statement and provide five Business Days for such sellers and their
counsel to comment upon such documents if so requested by a Holder;
(ii) prepare and file with the Commission such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may be necessary
to maintain the effectiveness of such registration and to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement during the period in which such registration statement is required to
be kept effective;
(iii) furnish to each Holder of the securities being registered, without charge, such
number of conformed copies of such registration statement and of each such amendment and
supplement thereto (in each case including all exhibits) other than those which are being
incorporated into such registration statement by reference, such number of copies of the
prospectus contained in such registration statements (including each complete prospectus and
any summary prospectus) and any other prospectus filed under Rule 424 under the Securities
Act in conformity with the requirements of the Securities Act, and such other documents,
including documents incorporated by reference, as the Holders may reasonably request;
(iv) register or qualify all Registrable Securities under such other securities or
“blue sky” laws of such jurisdictions as the Holders and the underwriters of the securities
being
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registered, if any, shall reasonably request, to keep such registration or
qualification in effect for so long as such registration statement remains in effect, and
take any other action which may be reasonably necessary or advisable to enable the Holders
to consummate the disposition in such jurisdiction of the securities owned by the Holders,
except that the Trust shall not for any such purpose be required to qualify generally to do
business as a foreign company or to register as a broker or dealer in any jurisdiction where
it would not otherwise be required to qualify but for this Section 4(a)(iv), or to consent
to general service of process in any such jurisdiction, or to be subject to any material tax
obligation in any such jurisdiction where it is not then so subject;
(v) promptly notify the Holders at any time when the Trust becomes aware that a
prospectus relating thereto is required to be delivered under the Securities Act, of the
happening of any event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which they were made, and, at the
request of the Holders, promptly prepare and furnish to the Holders a reasonable number of
copies of a supplement to or an amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such securities, such prospectus shall not include
an untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in the light of
the circumstances under which they were made;
(vi) comply or continue to comply in all material respects with the Securities Act and
the Exchange Act and with all applicable rules and regulations of the Commission thereunder
so as to enable any Holder to sell its Registrable Securities pursuant to Rule 144
promulgated under the Securities Act, as further agreed to in Section 7 hereof;
(vii) make available to the Holders, as soon as reasonably practicable, an earnings
statement covering the period of at least 12 months, but not more than 18 months, beginning
with the first calendar month after the effective date of such registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act;
(viii) provide a transfer agent and registrar for all Registrable Securities covered by
such registration statement not later than the effective date of such registration
statement;
(ix) 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 enable certificates for such Registrable Securities to be issued for such
number of shares and registered in such names as the Holders may reasonably request in
writing at least two Business Days prior to any sale of Registrable Securities;
(x) list all Registrable Securities covered by such registration statement on any
securities exchange or national quotation system on which any such class of securities is
then listed or quoted and cause to be satisfied all requirements and conditions of such
securities exchange or national quotation system to the listing or quoting of such
securities that are reasonably within the control of the Trust including, without
limitation, registering the applicable class of Registrable Securities under the Exchange
Act, if appropriate, and using commercially reasonable efforts to cause such registration to
become effective pursuant to the rules of the Commission;
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(xi) in connection with any sale, transfer or other disposition by any Holder of any
Registrable Securities pursuant to Rule 144 promulgated under the Securities Act, to the
extent available with respect to the Registrable Securities, cooperate with such Holder to
facilitate the timely preparation and delivery of certificates representing the Registrable
Securities to be sold and not bearing any Securities Act legend, and enable certificates for
such Registrable Securities to be for such number of shares and registered in such name as
the Holders may reasonably request in writing at least three Business Days prior to any sale
of Registrable Securities;
(xii) notify each Holder, promptly after it shall receive notice thereof, of the time
when such registration statement, or any post-effective amendments to the registration
statement, shall have become effective, or a supplement to any prospectus forming part of
such registration statement has been filed;
(xiii) notify each Holder of any request by the Commission for the amendment or
supplement of such registration statement or prospectus for additional information; and
(xiv) advise each Holder, promptly after it shall receive notice or obtain knowledge
thereof, of (A) the issuance of any stop order, injunction or other order or requirement by
the Commission suspending the effectiveness of such registration statement or the initiation
or threatening of any proceeding for such purpose and use all commercially reasonable
efforts to prevent the issuance of any stop order, injunction or other order or requirement
or to obtain its withdrawal if such stop order, injunction or other order or requirement
should be issued; (B) the suspension of the registration of the subject shares of the
Registrable Securities in any state jurisdiction and (C) the removal of any such stop order,
injunction or other order or requirement or proceeding or the lifting of any such
suspension.
b. In connection with the filing of any registration statement covering Registrable
Securities, each Holder shall furnish in writing to the Trust such information regarding such
Holder (and any of its Affiliates), the Registrable Securities to be sold, the intended method of
distribution of such Registrable Securities and such other information requested by the Trust as is
necessary or advisable for inclusion in the registration statement relating to such offering
pursuant to the Securities Act. Such writing shall expressly state that it is being furnished to
the Trust for use in the preparation of a registration statement, preliminary prospectus,
supplementary prospectus, final prospectus or amendment or supplement thereto, as the case may be.
Each Holder agrees by acquisition of the Registrable Securities that (i) upon receipt of any
notice from the Trust of the happening of any event of the kind described in Section
4(a)(v), such Holder will forthwith discontinue its disposition of Registrable Securities
pursuant to the registration statement relating to such Registrable Securities until such Holder’s
receipt of the copies of the supplemented or amended prospectus contemplated by Section
4(a)(v); (ii) upon receipt of any notice from the Trust of the happening of any event of the
kind described in clause (A) of Section 4(a)(xiv), such Holder will discontinue its
disposition of Registrable Securities pursuant to such registration statement until such Holder’s
receipt of the notice described in clause (C) of Section 4(a)(xiv); and (iii) upon receipt
of any notice from the Trust of the happening of any event of the kind described in clause (B) of
Section 4(a)(xiv), such Holder will discontinue its disposition of Registrable Securities pursuant
to such registration statement in the applicable state jurisdiction(s) until such Holder’s receipt
of the notice described in clause (C) of Section 4(a)(xiv).
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Section 5. Indemnification.
a. Indemnification by the Trust. The Trust agrees to indemnify and hold harmless each
Holder, its partners, officers, directors, trustees, stockholders, employees, agents and investment
advisers, and each Person, if any, who controls such Holder within the meaning of the Securities
Act or the Exchange Act, together with the partners, officers, directors, trustees, stockholders,
employees, agents and investment advisers of such controlling person, against any losses, claims,
damages, and expenses (including, without limitation, reasonable attorneys’ fees), joint or
several, to which the Holders or any such indemnitees may become subject under the Securities Act
or otherwise, insofar as such losses, claims, damages, liabilities and expenses (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained in the registration
statement under which such Registrable Securities were registered and sold under the Securities
Act, any preliminary prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, or arising out of or based upon any omission or alleged omission
to state therein 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, and the Trust
will reimburse each Holder for any reasonable legal or any other expenses reasonably incurred by it
in connection with investigating or defending any such loss, claim, liability, action or
proceedings; provided, however, that the Trust shall not be liable to the Holders
or any other Person who controls such Holder within the meaning of the Securities Act or the
Exchange Act in any such case to the extent that any such loss, claim, damage, liability (or action
or proceeding in respect thereof) or expense arises out of or is based upon an untrue statement or
alleged statement or omission or alleged omission made in such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus, amendment or supplement in reliance
upon and in conformity with written information furnished to the Trust by any Holder specifically
stating that it is for use in the preparation thereof; and provided, further, that
the Trust shall not be liable to the Holders or any other Person who controls such Holder within
the meaning of the Securities Act or the Exchange Act in any such case to the extent that any such
loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises out
of such Person’s failure to send or give a copy of the preliminary prospectus, final prospectus or
supplement to the Persons asserting an untrue statement or alleged untrue statement or omission or
alleged omission if such preliminary prospectus, final prospectus or supplement is required by law
to be sent or given at or prior to the time of the sale of such Registrable Securities to such
Persons and such statement or omission was corrected in such preliminary prospectus, final
prospectus or supplement, or use by a Holder of a preliminary prospectus, final prospectus or
supplement when participating in a distribution during a period when a stop order has been issued
in respect thereof or any motion or proceeding for that purpose has been initiated or such use has
otherwise been suspended in accordance with the terms hereof, and notice thereof has been given to,
and received by, the Holder prior to such use. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of the Holders or any such controlling
Person and shall survive the transfer of such securities by the Holders.
b. Indemnification by the Holders. Each Holder agrees to indemnify and hold harmless
(in the same manner and to the same extent as set forth in Section 5(a)) (i) the Trust,
each member of the Board, each officer, employee, agent and investment adviser of the Trust and
each other Person, if any, who controls any of the foregoing within the meaning of the Securities
Act or the Exchange Act, and (ii) each other Holder, its partners, officers, directors, trustees,
stockholders, employees, agents and investment advisers, and each Person, if any, who controls such
other Holder within the meaning of the Securities Act or the Exchange Act, with respect to any
untrue statement or alleged untrue statement of a material fact in or omission or alleged omission
to state a material fact from such registration statement, any preliminary prospectus, final
prospectus or summary prospectus contained therein, or any amendment or supplement thereto, if such
untrue statement or alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Trust by
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such Holder regarding such Holder giving such indemnification specifically stating that it is
for use in the preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement. Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf of the Trust or any such Board
member, officer, employee, agent, investment adviser or controlling Person and shall survive the
transfer of such securities by any Holder. The obligation of a Holder to indemnify will be several
and not joint, among the Holders of Registrable Securities and the liability of each such Holder of
Registrable Securities will be in proportion to and limited in all events to the gross amount
received by such Holder from the sale of Registrable Securities pursuant to such registration
statement.
c. Notices of Claims, etc. Promptly after receipt by an indemnified party of notice
of the commencement of any action or proceeding involving a claim referred to in the preceding
paragraphs of this Section 5, such indemnified party will, if a claim in respect thereof is
to be made against an indemnifying party, give written notice to the latter of the commencement of
such action; provided, however, that the failure of any indemnified party to give
notice as provided herein shall not relieve the indemnifying party of its obligations under the
preceding paragraphs of this Section 5, except to the extent that the indemnifying party is
actually prejudiced by such failure to give notice. In case any such action is brought against an
indemnified party, unless in such indemnified party’s reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist in respect of such claim, the
indemnifying party shall be entitled to assume the defense thereof, for itself, if applicable,
together with any other indemnified party similarly notified, and after notice from the
indemnifying party to such indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to the indemnified party for any legal or other expenses
subsequently incurred by the latter in connection with the defense thereof.
d. Indemnification Payments. To the extent that the indemnifying party does not
assume the defense of an action brought against the indemnified party as provided in Section
5(c), the indemnified party (or parties if there is more than one) shall be entitled to the
reasonable legal expenses of common counsel for the indemnified party (or parties). In such event,
however, the indemnifying party will not be liable for any settlement effected without the written
consent of such indemnifying party, which consent shall not be unreasonably withheld. The
indemnification required by this Section 5 shall be made by periodic payments of the amount
thereof during the course of an investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred. The indemnifying party shall not settle any claim
without the consent of the indemnified party unless such settlement involves a complete release of
such indemnified party without any admission of liability by the indemnified party.
e. Contribution. If, for any reason, the foregoing indemnity is unavailable, or is
insufficient to hold harmless an indemnified party, then the indemnifying party shall contribute to
the amount paid or payable by the indemnified party as a result of the expense, loss, damage or
liability, (i) in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and the indemnified party on the other (determined by reference
to, among other things, whether the untrue or alleged untrue statement of a material fact or
omission relates to information supplied by the indemnifying party or the indemnified party and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission) or (ii) if the allocation provided by subclause (i) above is not
permitted by applicable law, in the proportion as is appropriate to reflect not only the relative
fault of the indemnifying party and the indemnified party, but also the relative benefits received
by the indemnifying party on the one hand and the indemnified party on the other, as well as any
other relevant equitable considerations. No indemnified party guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any indemnifying party who was not guilty of such fraudulent misrepresentation,
and the liability for contribution of each Holder of Registrable Securities will be in proportion
to and limited
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in all events to the net amount received by such Holder from the sale of Registrable
Securities pursuant to such registration statement.
Section 6. Market Stand-Off Agreement. Each Holder hereby agrees that it shall not,
to the extent requested by the Trust or an underwriter of securities of the Trust, which request
may not be made more than three occasions during any fiscal year, directly or indirectly sell,
offer to sell (including without limitation any short sale), grant any option or otherwise transfer
or dispose of any Registrable Securities (other than to donees or partners of the Holder who agree
to be similarly bound) within 30 days prior to and for up to 60 days following the effective date
of a registration statement of the Trust filed under the Securities Act or the date of an
underwriting agreement with respect to an underwritten public offering of the Trust’s securities
(the “Stand-Off Period”); provided,
however, that:
a. with respect to the Stand-Off Period, such agreement shall not be applicable to the
Registrable Securities to be sold on the Holder’s behalf to the public in an underwritten offering
pursuant to such registration statement; and
b. all executive officers and trustees of the Trust then holding Common Shares of the Trust
shall enter into similar market stand-off agreements (unless such executive officer or trustee of
the Trust is already bound by a market stand-off agreement by reason of being a Holder).
In order to enforce the foregoing covenant, the Trust shall have the right to place
restrictive legends on the certificates representing the Registrable Securities subject to this
Section 6 and to impose stop transfer instructions with respect to the Registrable Securities and
such other Common Shares of each Holder (and the Common Shares or securities of every other person
subject to the foregoing restriction) until the end of such period.
Section 7. Covenants Relating To Rule 144. At such times as the Trust becomes
obligated to file reports in compliance with either Section 13 or 15(d) of the Exchange Act, the
Trust covenants that it will use commercially reasonable efforts to file any reports required to be
filed by it under the Securities Act and the Exchange Act and that it will use commercially
reasonable efforts to take such further action as any Holder may reasonably request, all to the
extent required from time to time to enable Holders to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions provided by (a) Rule
144 under the Securities Act, as such rule may be amended from time to time or (b) any similar rule
or regulation hereafter adopted by the Commission. Upon the request of any Holder, the Trust will
deliver to such Holder a written statement as to whether it has complied with such requirements.
Section 8. Miscellaneous.
a. Termination; Survival. The rights of each Holder under this Agreement shall
terminate upon the date that all of the Registrable Securities held by such Holder may be sold
during any three-month period in a single transaction or series of transactions without volume
limitations under Rule 144 (or any successor provision) under the Securities Act, or there ceases
to be any Registrable Securities. Notwithstanding the foregoing, the obligations of the parties
under ▇▇▇▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇) and (o) of this Section
8 shall survive the termination of this Agreement.
b. Expenses. All Registration Expenses incurred in connection with any Shelf
Registration Statement under Section 2 shall be borne by the Trust, whether or not any
registration statement related thereto becomes effective.
9
c. Counterparts. This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement, and shall become effective when one or more
such counterparts have been signed by each of the parties and delivered to each of the other
parties.
d. Applicable Law; Jurisdiction. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York. The parties consent to the exclusive
jurisdiction of the United States District Court for the Southern District of New York in
connection with any civil action concerning any controversy, dispute or claim arising out of or
relating to this Agreement, or any other agreement contemplated by, or otherwise with respect to,
this Agreement or the breach hereof, unless such court would not have subject matter jurisdiction
thereof, in which event the parties consent to the jurisdiction of the State of New York. The
parties hereby waive and agree not to assert in any litigation concerning this Agreement the
doctrine of forum non conveniens.
e. Waiver Of Jury Trial. THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY
COUNTERCLAIM THEREIN.
f. Prior Agreement; Construction; Entire Agreement. This Agreement, including the
exhibits and other documents referred to herein (which form a part hereof), constitutes the entire
agreement of the parties with respect to the subject matter hereof, and supersedes all prior
agreements and understandings between the parties, and all such prior agreements and understandings
are merged herein and shall not survive the execution and delivery hereof.
g. Notices. All notices or other communications required or permitted to be given
hereunder shall be in writing and shall be delivered by hand or sent, postage prepaid, by
registered, certified or express mail or reputable overnight courier service or be telecopier and
shall be deemed given when so delivered by hand or, if mailed, three days after mailing (one
Business Day in the case of express mail or overnight courier service), addressed as follows:
If to the Holder:
|
To the address indicated for such Holder in Schedule 1 hereto. | |
If to the Trust:
|
NY Credit Trust ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ |
|
| with a copy to: | ||
| ▇▇▇▇▇▇▇▇ Chance US LLP ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ |
h. Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and permitted assigns of each of the parties and shall inure to the
benefit of each Holder. A Holder may assign its rights hereunder to any person to whom it
transfers its Registrable
10
Securities (so long as such transfer is not in violation of any (1) law or (2) agreement of
such Holder with the issuer of such Registrable Securities or any of its Affiliates). The Trust
may assign its rights or obligations hereunder to any successor to the Trust’s business or with the
prior written consent of Holders of a majority of the then outstanding Registrable Securities.
Notwithstanding the foregoing, no assignee of the Trust shall have any of the rights granted under
this Agreement until such assignee shall acknowledge its rights and obligations hereunder by a
signed written agreement pursuant to which such assignee accepts such rights and obligations.
i. Headings. Headings are included solely for convenience of reference and if there
is any conflict between headings and the text of this Agreement, the text shall control.
j. Amendments And Waivers. The provisions of this Agreement may be amended or waived
at any time only by the written agreement of the Trust and the Holders of a majority of the
Registrable Securities; provided, however, that the provisions of this Agreement
may not be amended or waived without the consent of the Holders of all the Registrable Securities
adversely affected by such amendment or waiver if such amendment or waiver adversely affects a
portion of the Registrable Securities but does not so adversely affect all of the Registrable
Securities; provided, further, that the provisions of the preceding provision may
not be amended or waived except in accordance with this sentence. Any waiver, permit, consent or
approval of any kind or character on the part of any such Holders of any provision or condition of
this Agreement must be made in writing and shall be effective only to the extent specifically set
forth in writing. Any amendment or waiver effected in accordance with this paragraph shall be
binding upon each Holder of Registrable Securities and the Trust.
k. Interpretation; Absence Of Presumption. For the purposes hereof, (i) words in the
singular shall be held to include the plural and vice versa and words of one gender shall be held
to include the other gender as the context requires, (ii) the terms “hereof,” “herein,” and
“herewith” and words of similar import shall, unless otherwise stated, be construed to refer to
this Agreement as a whole and not to any particular provision of this Agreement, and Section,
paragraph or other references are to the Sections, paragraphs, or other references to this
Agreement unless otherwise specified, (iii) the word “including” and words of similar import when
used in this Agreement shall mean “including, without limitation,” unless the context otherwise
requires or unless otherwise specified, (iv) the word “or” shall not be exclusive and (v)
provisions shall apply, when appropriate, to successive events and transactions.
This Agreement shall be construed without regard to any presumption or rule requiring
construction or interpretation against the party drafting or causing any instruments to be drafted.
l. Severability. If any provision of this Agreement shall be or shall be held or
deemed by a final order by a competent authority to be invalid, inoperative or unenforceable, such
circumstance shall not have the effect of rendering any other provision or provisions herein
contained invalid, inoperative or unenforceable, but this Agreement shall be construed as if such
invalid, inoperative or unenforceable provision had never been contained herein so as to give full
force and effect to the remaining such terms and provisions.
m. Specific Performance; Other Rights. The parties recognize that various other
rights rendered under this Agreement are unique and, accordingly, the parties shall, in addition to
such other remedies as may be available to them at law or in equity, have the right to enforce the
rights under this Agreement by actions for injunctive relief and specific performance.
n. Further Assurances. In connection with this Agreement, as well as all transactions
and covenants contemplated by this Agreement, each party hereto agrees to execute and deliver or
cause to be executed and delivered such additional documents and instruments and to perform or
cause to be
11
performed such additional acts as may be necessary or appropriate to effectuate, carry out and
perform all of the terms, provisions and conditions of this Agreement and all such transactions and
covenants contemplated by this Agreement.
o. No Waiver. The waiver of any breach of any term or condition of this Agreement
shall not operate as a waiver of any other breach of such term or condition or of any other term or
condition, nor shall any failure to enforce any provision hereof operate as a waiver of such
provision or of any other provision hereof.
[SIGNATURE PAGE FOLLOWS]
12
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date
first written above.
| NY CREDIT TRUST, a Maryland real estate investment trust |
||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||
| Name: Title: |
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Chief Executive Officer |
|||||
| HOLDERS: | ||||||
| HSH NORDBANK AG, CAYMAN ISLANDS BRANCH | ||||||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||||
| Name: Title: |
▇▇▇▇▇▇ ▇▇▇▇▇▇ Authorized Signatory |
|||||
| ROKI LLC | ||||||
| By: | /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||||
| Name: Title: |
▇▇▇ ▇▇▇▇▇▇▇▇▇ Authorized Signatory |
|||||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||||
| Name: Title: |
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Authorized Signatory |
|||||
| NEW YORK LIFE INSURANCE COMPANY | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||||
| Name: Title: |
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Vice President |
|||||
| USA REAL ESTATE FINANCE I GMBH & CO. KG | ||||||
| By: USA Real Estate Finance I Verwaltungsgesellschaft mbH, its General Partner |
||||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Managing Director |
||||||
13
Schedule 1
THE HOLDERS
| Number of | ||||
| Partnership Units | ||||
| Name of the Holder | Held | Address of the Holder | ||
HSH Nordbank AG, Cayman Island Branch |
▇/▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ Branch ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ |
|||
ROKI LLC
|
▇/▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ Branch ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ |
|||
New York Life Insurance Company |
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ | |||
USA Real Estate
Finance I GmbH & Co.
KG
|
c/o USA Real Estate Finance I Verwaltungsgesellschaft mbH |
14