EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made
as of July 28, 1998 among Capital Trust, a California business trust (the
"Company"), Vornado Realty L.P., a Delaware limited partnership ("VRLP"), EOP
Operating Limited Partnership, a Delaware limited partnership ("EOPLP"), Mellon
Bank N.A., as trustee for General Motors Hourly-Rate Employes Pension Trust, a
New York trust ("Hourly GM Trust"), and Mellon Bank N.A., as trustee for General
Motors Salaried Employes Pension Trust, a New York trust ("Salaried GM Trust"
and together with the Hourly GM Trust, the "GM Trust").
WHEREAS, CT Convertible Trust I, a Delaware statutory business
trust (the "Trust"), has offered to certain investors in a private placement
$150,000,000 aggregate liquidation amount of its 8.25% Step Up Convertible Trust
Preferred Securities (the "Convertible Preferred Securities"), representing
undivided beneficial interests in the assets of the Trust, and proposes to
invest the proceeds from such offering, together with the proceeds of the
issuance and sale by the Trust to the Company of $4,650,000 aggregate
liquidation amount of its 8.25% Step Up Convertible Trust Common Securities (the
"Common Securities"), representing an undivided interest in the assets of the
Trust, in $154,650,000 aggregate principal amount of 8.25% Step Up Convertible
Junior Subordinated Debentures of the Company (the "Debentures"); and
WHEREAS, the Company has agreed to issue the Common Shares (as
defined below) to the Holders (as defined below) upon conversion of the
Securities (as defined below) and to grant to the Holders the registration
rights set forth in Sections 2 and 4 hereof.
NOW, THEREFORE, the parties hereto, in consideration of the
mutual covenants and agreements hereinafter set forth, and other good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, hereby agree as follows:
Section 1. Definitions.
As used in this Agreement, the following capitalized defined
terms shall have the following meanings:
"Agent" means the principal placement agent on an agented
placement of Registrable Securities.
"Business Day" shall mean a day other than a Saturday, Sunday
or other day on which banking institutions in New York, New York are permitted
or required by any applicable law to close.
"Commission" shall mean the Securities and Exchange
Commission.
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"Common Securities" shall have the meaning set forth in the
Preamble.
"Common Shares" shall mean the Class A common shares of
beneficial interest, $1.00 par value, in the Company.
"Company" shall have the meaning set forth in the Preamble and
also shall include the Company's successors.
"Continuously Effective" means, with respect to a specified
registration statement, that it shall not cease to be effective and current with
respect to applicable disclosure requirements and available for Transfers of
Registrable Securities thereunder, and shall not be subject to any stop order or
injunction, for longer than either (i) any ten (10) consecutive Business Days,
or (ii) an aggregate of fifteen (15) Business Days during the period specified
in the relevant provision of this Agreement.
"Convertible Preferred Securities" shall have the meaning set
forth in the Preamble.
"Debentures" shall have the meaning set forth in the Preamble.
"Demand Registration" shall have the meaning set forth in
Section 2(a) hereof.
"Demanding Holders" shall have the meaning set forth in
Section 2(a) hereof.
"EOPLP" shall have the meaning set forth in the Preamble.
"Evergreen Registration" shall have the meaning set forth in
Section 6 hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended from time to time.
"GM Trust" shall have the meaning set forth in the Preamble.
"Holder" or "Holders" shall mean VRLP, EOPLP and the GM Trust
or transferee of any such Person's Registrable Securities acquiring rights in
accordance with Section 9 hereof whenever such Person owns of record Registrable
Securities, or holds a security convertible into or exercisable or exchangeable
for, Registrable Securities, whether or not such purchase or conversion has
actually been effected and disregarding any legal restrictions upon the exercise
of such rights. If the Company receives conflicting instructions, notices or
elections from two or more persons with respect to the same Registrable
Securities, the Company may act upon the basis of the instructions, notice or
election received from the registered owner of such Registrable Securities.
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"Indenture" means the Indenture dated as of July 28, 1998
between the Company and Wilmington Trust Company, as trustee.
"Majority Selling Holders" means those Selling Holders whose
Registrable Securities included in such registration represent a majority of the
Registrable Securities of all Selling Holders included therein.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"Person" shall mean an individual, partnership, corporation,
limited liability company, trust, estate, or unincorporated organization, or
other entity, or a government or agency or political subdivision thereof.
"Register," "Registered" and "Registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act, and the declaration or
ordering by the Commission of effectiveness of such registration statement or
document.
"Registrable Securities" shall mean (i) the Common Shares
issuable upon conversion of the Securities purchased by the Holders on the date
hereof pursuant to that certain Preferred Securities Purchase Agreement, dated
as of the date hereof, among the Company, the Trust, VRLP, EOPLP and the GM
Trust; (ii) any Common Shares or other securities issued as (or issuable upon
the conversion or exercise of any warrant, right or other security which is
issued as) a dividend or other distribution with respect to, or in exchange by
the Company generally for, or in replacement by the Company generally of, such
Common Shares; and (iii) any securities issued in exchange for such Common
Shares in any merger, combination or reorganization of the Company; provided,
however, that Registrable Securities shall not include any securities which have
theretofore been registered and sold pursuant to the Securities Act or which
have been sold to the public pursuant to Rule 144 or any similar rules
promulgated by the Commission pursuant to the Securities Act, and, provided
further, the Company shall have no obligation under Section 2 or 4 to register
any Registrable Securities of a Holder if the Company shall deliver to the
Holders requesting such registration an opinion of counsel reasonably
satisfactory to such Holders and their counsel to the effect that the proposed
sale or disposition of all of the Registrable Securities for which registration
was requested does not require registration under the Securities Act for a sale
or disposition in a single public sale, and offers to remove any and all legends
restricting transfer from the certificates evidencing such Registrable
Securities. For purposes of this Agreement, a Person will be deemed to be a
Holder of Registrable Securities whenever such Person has the then-existing
right to acquire such Registrable Securities (by conversion, purchase or
otherwise), whether or not such acquisition has actually been effected.
"Rule 144" and "Rule 145" shall mean Rule 144 and Rule 145
promulgated under the Securities Act.
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"Securities" shall mean the Convertible Preferred Securities
together with the Debentures.
"Securities Act" shall mean the Securities Act of 1933, as
amended from time to time.
"Selling Holders" means, with respect to a specified
registration pursuant to this Agreement, the Holders whose Registrable
Securities are included in such registration.
"Transfer" means and includes the act of selling, giving,
transferring, creating a trust (voting or otherwise), assigning or otherwise
disposing of (other than pledging, hypothecating or otherwise transferring as
security or any transfer upon any merger or consolidation) (and correlative
words shall have correlative meanings); provided however, that any transfer or
other disposition upon foreclosure or other exercise of remedies of a secured
creditor after an event of default under or with respect to a pledge,
hypothecation or other transfer as security shall constitute a Transfer.
"Trust" shall have the meaning set forth in the Preamble.
"Underwriters' Representative" means the managing underwriter,
or, in the case of a co-managed underwriting, the managing underwriter
designated as the Underwriters' Representative by the co-managers.
"Violation" shall have the meaning set forth in Section
8(a)(i).
"VRLP" shall have the meaning set forth in the Preamble.
Section 2. Demand Registration.
(a) Request for Demand Registration. Subject to Sections 2(b),
2(d) and 2(e) below, at any time, if one or more Holders shall make a written
request to the Company (the "Demanding Holders"), the Company shall cause there
to be filed with the Commission a registration statement meeting the
requirements of the Securities Act (a "Demand Registration"), and each Demanding
Holder shall be entitled to have included therein (subject to, as applicable,
Section 10 hereof) all or such number of such Demanding Holder's Registrable
Securities as the Demanding Holder shall report in writing. Any request made
pursuant to this Section 2(a) shall be addressed to the attention of the
secretary of the Company, and shall specify the number of Registrable Securities
to be registered, the intended methods of disposition thereof and that the
request is for a Demand Registration pursuant to this Section 2(a).
Whenever the Company shall have received a demand pursuant to
Section 2(a) to effect the Demand Registration of any Registrable Securities,
the Company shall promptly
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give written notice of such proposed registration to all Holders of the
Securities, if any. Any such Holder may, within 20 days after receipt of such
notice, request in writing that all of such Holder's Registrable Securities, or
any portion thereof designated by such Holder, be included in the registration
and such request shall not be considered one of the Demand Registrations under
Section 2(a) hereof to which such Holder is entitled.
(b) Limitations on Demand Registrations.
(i) The Company shall be obligated to effect no more
than three Demand Registrations for each Holder. For purposes
of the preceding sentence, registration shall not be deemed to
have been effected (i) unless a registration statement with
respect thereto has become effective, (ii) if after such
registration statement has become effective, such registration
or the related offer, sale or distribution of Registrable
Securities thereunder is interfered with by any stop order,
injunction or other order or requirement of the Commission or
other governmental agency or court for any reason not
attributable to the Selling Holders and such interference is
not thereafter eliminated, or (iii) if the conditions to
closing specified in the underwriting agreement, if any,
entered into in connection with such registration are not
satisfied or waived, other than by reason of a failure on the
part of the Selling Holders. If the Company shall have
complied with its obligations under this Section 2, a right to
demand a registration pursuant to Section 2(a) shall be deemed
to have been satisfied upon the earlier of (x) the date as of
which all of the Registrable Securities included therein shall
have been disposed of pursuant to a registration statement,
and (y) the date as of which such Demand Registration shall
have been Continuously Effective for a period of not less than
270 days ("Minimum Effective Period"), provided no stop order
or similar order, or proceedings for such an order, is
thereafter entered or initiated.
(ii) Notwithstanding the foregoing, the Demand
Registration rights granted to the Holders in Section 2(a) are
subject to the following limitations: (i) each registration in
respect of a Demand Registration must include Registrable
Securities having an aggregate market value of at least
$5,000,000, which market value shall be determined by
multiplying the number of Registrable Securities to be
included in the Demand Registration by the proposed per share
offering price (provided that the limitation set forth in this
clause (i) shall not be in effect at any time the Holders'
Registrable Securities are not able to be sold under Rule 144
because of the Company's failure to comply with the
information requirements thereunder, unless at such time, the
Company's counsel delivers a written opinion of counsel, which
shall be in a form reasonably satisfactory to such Holders'
counsel, to such Holders to the effect that such Holders'
Registrable Securities may be publicly offered and sold
without registration under the Act); (ii) the Company shall
not be required to
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cause a registration pursuant to Section 2(a) to be declared
effective within a period of 120 days after the effective date
of any registration statement of the Company effected in
connection with a Demand Registration, provided the Company
has not breached its obligations under Section 2(a); and (iii)
the Company shall not be required to file a registration
statement or to keep a registration statement effective and
current with respect to applicable disclosure requirements if
the negotiation or consummation of a material transaction is
pending or an event has occurred, which negotiation,
transaction or event would require additional disclosure by
the Company in the registration statement of previously
non-public material information which the Company in its good
faith judgment has a bona fide business purpose for keeping
confidential and the nondisclosure of which in the
registration statement might cause the registration statement
to fail to comply with applicable disclosure requirements;
provided, however, that the Company may not delay the filing
of a registration or documents necessary to keep an existing
registration statement effective and current, for such reason
for more than 75 days in any calender year.
(iii) Whenever the Company shall effect a
registration pursuant to this Section 2 in connection with an
underwritten offering by one or more Selling Holders of
Registrable Securities, if the Underwriters' Representative or
Agent advises each such Selling Holder in writing that, in its
opinion, the amount of securities requested to be included in
such offering (whether by Selling Holders or others) exceeds
the amount which can be sold in such offering within a price
range acceptable to the Majority Selling Holders, Registrable
Securities shall be included in such offering and the related
registration to the extent of the amount which can be sold
within such price range, and on a pro rata based on the
estimated gross proceeds from the sale thereof among all the
Selling Holders and all other securities being registered
pursuant to the exercise of Contractual rights comparable to
the rights granted in Section 4 hereof.
(c) Effective Demand Registration. Following receipt of a
request for a Demand Registration, the Company shall:
(i) File the registration statement with the
Commission as promptly as practicable, and shall use the
Company's best efforts to have the registration declared
effective under the Securities Act as soon as reasonably
practicable, in each instance giving due regard to the need to
prepare current financial statements, conduct due diligence
and complete other actions that are reasonably necessary to
effect a registered public offering; and
(ii) Use the Company's best efforts to keep the
relevant registration statement Continuously Effective for no
less than the Minimum Effective Period or until such earlier
date as of which all the Registrable Securities under the
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registration statement filed pursuant to the Demand
Registration shall have been disposed of in the manner
described in the registration statement. Notwithstanding the
foregoing, if for any reason the effectiveness of a
registration pursuant to this Section 2 is suspended or such
registration statement shall not be current with respect to
applicable disclosure requirements, the Minimum Effective
Period shall be extended by the aggregate number of days of
such suspension or period of non-compliance.
(d) Restrictions on Public Sale by Holders. Notwithstanding
anything herein to the contrary, the Company shall have the right from time to
time to require the Holders not to effect any public sale or public distribution
of any Registrable Securities under a registration statement filed pursuant to a
Demand Registration during the period starting with the date 30 days prior to
the Company's good faith estimate, as certified in writing by an executive
officer of the Company to the Holders, of the proposed date of filing of a
registration statement or a prospectus supplement under an effective primary
shelf registration statement on file pursuant to Rule 415 promulgated under the
Securities Act relating to an underwritten public offering of equity securities
of the Company for the account of the Company, and ending on the date sixty (60)
days following the effective date of such registration or the date of such
prospectus supplement, provided, however, the Company may not restrict the
Holders' ability to publicly sell or distribute Registrable Securities for such
reason more than one time in any calendar year. Notwithstanding the foregoing,
if the Company shall restrict the public sale or distribution in accordance with
the foregoing, the Minimum Effective Period shall be extended by the aggregate
number of days of such period of restriction.
(e) Form of Registration Statement. A registration pursuant to
this Section 2 shall be on such appropriate registration form of the Commission
as shall (i) be selected by the Company and be reasonably acceptable to the
Majority Selling Holders, and (ii) permit the disposition of the Registrable
Securities in accordance with the intended method or methods of disposition
specified in the request pursuant to Section 2(a).
(f) Selection of Underwriters. If any registration pursuant to
Section 2(a) involves an underwritten offering (whether on a "firm," "best
efforts" or "all reasonable efforts" basis or otherwise), or an agented
offering, the Majority Selling Holders shall have the right to select the
underwriter or underwriters and manager or managers to administer such
underwritten offering or the placement agent or agents for such agented
offering; provided, however, that each Person so selected shall be reasonably
acceptable to the Company.
Section 3. Registration Procedures.
(a) Obligations of the Company. Whenever required under
Section 2 to effect a Demand Registration of any Registrable Securities, the
Company shall, as expeditiously as practicable:
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(i) Prepare and file with the Commission a
registration statement with respect to such Registrable
Securities (which registration statement shall be available
for the Selling Holders' intended method of distribution and
shall comply in all material respects with the requirements of
the applicable form and include all financial statements
required by the Commission to be filed therewith) and use the
Company's best efforts to cause such registration statement to
become effective.
(ii) Notify each Selling Holder when the registration
statement and any post-effective amendments thereto are
declared effective.
(iii) Respond as promptly as practicable to any
comments received by the Commission with respect to the
registration statement and, subject to clause (iii) of Section
2(b)(ii), prepare and file with the Commission such amendments
and supplements to such registration statement and the
prospectus used in connection with such registration statement
or any document incorporated therein by reference or file any
other required document as may be necessary to comply with the
provisions of the Securities Act and rules thereunder with
respect to the disposition of all securities covered by such
registration statement and the instructions applicable to the
registration form used by the Company. If the registration is
for an underwritten offering, the Company shall amend the
registration statement or supplement the prospectus whenever
required by the terms of the underwriting agreement entered
into pursuant to Section 3(a)(vi). In the event that any
Registrable Securities included in a registration statement
subject to, or required by, this Agreement remain unsold at
the end of the period during which the Company is obligated to
use its best efforts to maintain the effectiveness of such
registration statement, the Company may file a post-effective
amendment to the registration statement for the purpose of
removing such securities from registered status.
(iv) Furnish to each Selling Holder of Registrable
Securities, without charge, such numbers of copies of the
registration statement, any pre-effective or post-effective
amendment thereto, the prospectus, including each preliminary
prospectus and any amendments or supplements thereto, in each
case in conformity with the requirements of the Securities Act
and the rules thereunder, and such other related documents as
any such Selling Holder may reasonably request in order to
facilitate the disposition of Registrable Securities owned by
such Selling Holder.
(v) Use the Company's best efforts (i) to register
and qualify the securities covered by such registration
statement under such other securities or Blue Sky laws of such
states or jurisdictions as shall be reasonably requested by
the Underwriters' Representative or Agent (as applicable, or
if inapplicable, any
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Selling Holder) and to keep such qualification effective
during the period such registration statement is effective,
and (ii) to obtain the withdrawal of any order suspending the
effectiveness of a registration statement, or the lifting of
any suspension of the qualification (or exemption from
qualification) of the offer and transfer of any of the
Registrable Securities in any jurisdiction, at the earliest
possible moment; provided, however, that the Company shall not
be required in connection therewith or as a condition thereto
to qualify to do business, subject itself to taxation in any
such jurisdiction, or to file a general consent to service of
process in any such states or jurisdictions.
(vi) In the event of any underwritten or agented
offering, enter into and perform the Company's obligations
under an underwriting or agency agreement (including
indemnification and contribution obligations of underwriters
or agents and representations and warranties by the Company to
the Selling Holders and the underwriters), in usual and
customary form, with the managing underwriter or underwriters
of or agents for such offering and use reasonable best efforts
to obtain executed lock-up agreements from the officers and
directors of the Company and from the holders of more than 5%
of the Company's equity securities, if requested by the
underwriters. The Company shall also cooperate with the
Majority Selling Holders and the Underwriters' Representative
or Agent for such offering in the marketing of the Registrable
Shares, including making available the Company's officers,
accountants, counsel, premises, books and records for such
purpose, but the Company shall not be required to incur any
material out-of-pocket expense pursuant to this sentence.
(vii) Promptly notify each Selling Holder of any stop
order issued or threatened to be issued by the Commission in
connection therewith and take all reasonable actions required
to prevent the entry of such stop order or to remove it if
entered.
(viii) Promptly notify each Selling Holder of the
happening of any transaction or event during the period a
registration statement is effective which is of a type
specified in clause (iii) of Section 2(b)(ii) hereof or as a
result of which such registration statement or the related
prospectus contains any untrue statement of a material fact or
omits to state any material fact required to be stated therein
or necessary to make the statements therein in light of the
circumstances under which they were made (in the case of the
prospectus), not misleading.
(ix) Make generally available to the Company's
security holders copies of an earnings statement satisfying
the provisions of Section 11(a) of the Securities Act no later
than 90 days following the end of the 12-month period
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beginning with the first month of the Company's first fiscal
quarter commencing after the effective date of each
registration statement filed pursuant to this Agreement.
(x) Make available for inspection by any Selling
Holder, any underwriter participating in such offering and the
representatives of such Selling Holder and Underwriter (but
not more than one firm of counsel to such Selling Holders),
all financial and other information as shall be reasonably
requested by them, and provide the Selling Holder, any
underwriter participating in such offering and the
representatives of such Selling Holder and Underwriter the
opportunity to discuss the business affairs of the Company
with its principal executives and independent public
accountants who have certified the audited financial
statements included in such registration statement, in each
case all as necessary to enable them to exercise their due
diligence responsibility under the Securities Act; provided,
however, that information that the Company determines, in good
faith, to be confidential and which the Company advises such
Person in writing is confidential shall not be disclosed
unless such Person signs a confidentiality agreement
reasonably satisfactory to the Company or the related Selling
Holder of Registrable Securities agrees to be responsible for
such Person's breach of confidentiality on terms reasonably
satisfactory to the Company.
(xi) Use the Company's best efforts to obtain a
so-called "comfort letter" from its independent public
accountants, and legal opinions of counsel to the Company
addressed to the Selling Holders, in customary form and
covering such matters of the type customarily covered by such
letters, and in a form that shall be reasonably satisfactory
to Majority Selling Holders. The Company shall furnish to each
Selling Holder a signed counterpart of any such comfort letter
or legal opinion. Delivery of any such opinion or comfort
letter shall be subject to the recipient furnishing such
written representations or acknowledgments as are customarily
provided by selling shareholders who receive such comfort
letters or opinions.
(xii) Provide and cause to be maintained a transfer
agent and registrar for all Registrable Securities covered by
such registration statement from and after a date not later
than the effective date of such registration statement.
(xiii) Use all reasonable efforts to cause the
Registrable Securities covered by such registration statement
(i) if such securities are then listed on a securities
exchange or included for quotation in a recognized trading
market, to continue to be so listed or included for a
reasonable period of time after the offering, and (ii) to be
registered with or approved by such other United States or
state governmental agencies or authorities as may be necessary
by virtue of
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the business and operations of the Company to enable the
Selling Holders of Registrable Securities to consummate the
disposition of such Registrable Securities.
(xiv) Use the Company's reasonable efforts to provide
a CUSIP number for the Registrable Securities prior to the
effective date of the first registration statement including
Registrable Securities.
(xv) Take such other actions as are reasonably
required in order to expedite or facilitate the disposition of
Registrable Securities included in each such registration.
(b) Holders' Obligations. It shall be a condition precedent to
the obligations of the Company to take any action pursuant to Sections 2 and 3
hereof with respect to the Registrable Securities of any Selling Holder of
Registrable Securities that such Selling Holder shall furnish to the Company
such information regarding such Selling Holder, the number of the Registrable
Securities owned by it, and the intended method of disposition of such
Registrable Securities as shall be required to effect the registration of such
Selling Holder's Registrable Securities, and to cooperate with the Company in
preparing such registration.
Section 4. Piggyback Registration.
(a) Request for Piggyback Registration. If at any time the
Company proposes to register (including for this purpose a registration effected
by the Company for shareholders of the Company other than the Holders) equity
securities under the Securities Act in connection with the public offering
solely for cash on Form S-1, S-2, S-3 or S-11 (as requested) (or any replacement
or successor forms) other than a registration of securities for a delayed
offering pursuant to Rule 415 promulgated under the Securities Act, the Company
shall promptly give each Holder of Registrable Securities written notice of such
registration (a "Piggyback Registration"). Upon the written request of each
Holder given within 20 days following the date of such notice, the Company shall
cause to be included in such registration statement and use its best efforts to
be registered under the Securities Act and included in any underwriting all the
Registrable Securities that each such Holder shall have requested to be
registered. The Company shall have the absolute right to withdraw or cease to
prepare or file any registration statement for any offering referred to in this
Section 4 without any obligation or liability to any Holder.
(b) Limitations on Piggyback Registrations. The Company shall
not be required to include any Holder's Registrable Securities in any
underwriting unless such Holder accepts the terms of the underwriting as agreed
upon between the Company and the underwriters selected by it, provided that such
Holder shall be entitled to the same pricing terms. If the Underwriters'
Representative or Agent shall advise the Company in writing (with a copy to each
Selling Holder) that, in its opinion, the amount of Registrable Securities
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requested to be included in such registration would materially adversely affect
such offering, or the timing thereof, then the Company will include in such
registration, to the extent of the amount and class which the Company is so
advised can be sold without such material adverse effect in such offering (i)
the securities proposed to be sold by the Company for its own account; (ii) the
Registrable Securities requested to be included in such registration by Holders
pursuant to this Section 4; and (iii) all other securities being registered
pursuant to the exercise of contractual rights comparable to the rights granted
in this Section 4, pro rata based on the estimated gross proceeds from the sale
thereof.
Section 5. Agreements of Selling Holder. In connection with
any registration pursuant to Section 2 or 4 hereof, each Selling Holder agrees,
as applicable:
(i) to execute the underwriting agreement, if any,
agreed to by the Majority Selling Holders or the Company, as
the case may be;
(ii) that it will not offer or sell its Registrable
Securities under the registration statement until it has
received copies of the supplemented or amended Prospectus
contemplated by Section 3(a)(iii) hereof and receives notice
that any post-effective amendment (if required) has become
effective; and
(iii) that upon receipt of any notice from the
Company of the happening of any transaction or event of the
kind described in Section 3(a)(viii) hereof, such Holder will
forthwith discontinue disposition of Registrable Securities
pursuant to a registration statement until the Holder receives
copies of the supplemented or amended Prospectus contemplated
by Section 3(a)(iii) hereof and receives notice that any
post-effective amendment (if required) has become effective,
and, if so directed by the Company, the Holder will deliver to
the Company (at the expense of the Company) all copies in its
possession, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such
Registrable Securities current immediately preceding the time
of receipt of such notice.
Section 6. Limitations or Subsequent Registration Rights. From
and after the date of this Agreement, the Company shall not, without the prior
written consent of the Holders of a majority of the outstanding Registrable
Securities, enter into any agreement with any holder or prospective holder of
any securities of the Company which would allow such holder or prospective
holder (a) to include such securities in any registration filed under Section 2
or 4 hereof, unless under the terms of such agreement, such holder or
prospective holder may include such securities in any such registration only to
the extent that the inclusion of his securities will not reduce the amount of
the Registrable Securities of the Holders which is included, or (b) to make a
demand registration which could result in such registration statement being
declared effective within a period of 120 days of the effective date of any
registration effected in connection with a Demand Registration. From and after
the date of this
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Agreement, if the Company shall enter into any agreement with any holder or
prospective holder of any securities of the Company which would allow such
holder or prospective holder to make a demand registration that the Company
would be obligated to keep Continuously Effective until all securities subject
of such registration have been disposed of (such registration, an "Evergreen
Registration"), the Company thereupon shall be obligated to make an Evergreen
Registration on behalf of and at the request of any Holder and include therein
all Registrable Securities then owned by such Holder, which such registration
shall be subject to and governed by the provisions of Sections 2 and 3 to the
extent a Demand Registration is governed thereby .
Section 7. Expenses of Registration. Expenses in connection
with registrations pursuant to this Agreement shall be allocated and paid as
follows with respect to each Demand Registration or Piggyback Registration; the
Company shall bear and pay all expenses incurred in connection with any
registration, filing, or qualification of Registrable Securities with respect to
such Demand Registrations or Piggyback Registration for each Selling Holder
(which right to payment by the Company may be assigned to any Person to whom
Registrable Securities are Transferred as permitted by Section 9), including all
registration, exchange listing, accounting, filing and NASD fees, all fees and
expenses of complying with securities or Blue Sky laws, all word processing,
duplicating and printing expenses, messenger and delivery expenses, the
reasonable fees and disbursements of counsel for the Company, and of the
Company's independent public accountants, including the expenses of "cold
comfort" letters required by or incident to such performance and compliance,
and, with respect to Demand Registrations, the reasonable fees and disbursements
of one firm of counsel for the Selling Holders of Registrable Securities
(selected by Demanding Holders owning a majority of the Registrable Securities
owned by Demanding Holders to be included in a Demand Registration), but
excluding underwriting discounts and commissions relating to Registrable
Securities (which shall be paid on a pro rata basis by the Selling Holders),
provided, however, that the Company shall not be required to pay for any
expenses of any registration proceeding begun pursuant to Section 2 if the
registration is subsequently withdrawn at the request of the Majority Selling
Holders (in which case all Selling Holders and any other Holders of Registrable
Securities to be included in the registration shall bear such expense pro rata
according to their number of shares requested to be registered), unless Holders
whose Registrable Securities constitute a majority of the Registrable Securities
then outstanding agree that such withdrawn registration shall constitute one of
the Demand Registrations under Section 2(a) hereof.
Section 8. Indemnification; Contribution.
(a) Indemnification by the Company. If any Registrable
Securities are included in a registration statement under this Agreement:
(i) To the extent permitted by applicable law, the
Company shall indemnify and hold harmless each Selling Holder,
each Person, if any, who
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controls such Selling Holder within the meaning of the
Securities Act, and each officer, director, trustee, partner,
and employee of such Selling Holder and such controlling
Person, against any and all losses, claims, damages,
liabilities and expenses (joint or several), including
attorneys' fees and disbursements and expenses of
investigation, incurred by such party pursuant to any actual
or threatened action, suit, proceeding or investigation, or to
which any of the foregoing Persons may become subject under
the Securities Act, the Exchange Act or other federal or state
laws, insofar as such losses, claims, damages, liabilities and
expenses arise out of or are based upon any of the following
statements, omissions or violations (collectively, a
"Violation"):
(A) Any untrue statement or alleged untrue
statement of a material fact contained in such registration
statement, including any preliminary prospectus or final
prospectus contained therein, or any amendments or supplements
thereto or any document incorporated by reference therein;
(B) The omission or alleged omission to
state therein a material fact required to be stated therein,
or necessary to make the statements therein not misleading; or
(C) Any violation or alleged violation by
the Company of the federal securities laws any applicable
state securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any applicable
state securities law;
provided, however, that the indemnification required by this Section 8(a) shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or expense if such settlement is effected without the consent of the
Company, which consent shall not be unreasonably withheld, nor shall the Company
be liable in any such case for any such loss, claim, damage, liability or
expense to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with written information furnished to
the Company by the indemnified party expressly for use in connection with such
registration; provided, further, that the indemnity agreement contained in this
Section 8(a) shall not apply to any underwriter to the extent that any such loss
is based on or arises out of an untrue statement or alleged untrue statement of
a material fact, or an omission or alleged omission to state a material fact,
contained in or omitted from any preliminary prospectus if the final prospectus
shall correct such untrue statement or alleged untrue statement, or such
omission or alleged omission, and a copy of the final prospectus has not been
sent or given to such Person at or prior to the confirmation of sale to such
Person if such underwriter was under an obligation to deliver such final
prospectus and failed to do so. The Company shall also indemnify underwriters
participating in the distribution of the Registrable Securities, their officers,
directors, agents and employees and each Person who controls such Persons
(within
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the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act) to the same extent as provided above with respect to the indemnification of
the Selling Holders.
(b) Indemnification by Holder. If any of a Selling Holder's
Registrable Securities are included in a registration statement under this
Agreement, to the extent permitted by applicable law, such Selling Holder shall
indemnify and hold harmless the Company, each of its directors, each of its
officers who shall have signed the registration statement, each Person, if any,
who controls the Company within the meaning of the Securities Act, any other
Selling Holder, any controlling Person of any such other Selling Holder and each
officer, director, partner, and employee of such other Selling Holder and such
controlling Person, against any and all losses, claims, damages, liabilities and
expenses (joint and several), including attorneys' fees and disbursements and
expenses of investigation, incurred by such party pursuant to any actual or
threatened action, suit, proceeding or investigation, or to which any of the
foregoing Persons may otherwise become subject under the Securities Act, the
Exchange Act or other federal or state laws, insofar as such losses, claims,
damages, liabilities and expenses arise out of or are based upon any Violation,
in each case to the extent (and only to the extent) that such Violation is based
on or arises from written information furnished by such Selling Holder to the
Company expressly for use in connection with such registration; provided,
however, that (x) the indemnification required by this Section 8(b) shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability
or expense if settlement is effected without the consent of the relevant Selling
Holder of Registrable Securities, which consent shall not be unreasonably
withheld, and (y) in no event shall the amount of any indemnity under this
Section 8(b) exceed the gross proceeds from the applicable offering received by
such Selling Holder. In no event shall a Holder be jointly liable with any other
Holder as a result of its indemnification obligations.
(c) Conduct of Indemnification Proceedings. Promptly after
receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, suit, proceeding, investigation or threat thereof
made in writing for which such indemnified party may make a claim under this
Section 8, such indemnified party shall deliver to the indemnifying party a
written notice of the commencement thereof and the indemnifying party shall have
the right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to assume
the defense thereof with counsel mutually satisfactory to the parties. The
failure to deliver written notice to the indemnifying party within a reasonable
time following the commencement of any such action, if not otherwise known by
the Company and materially prejudices or results in forfeiture of substantial
rights or defenses shall relieve such indemnifying party of any liability to the
indemnified party under this Section 8 but shall not relieve the indemnifying
party of any liability that it may have to any indemnified party otherwise than
pursuant to this Section 8. Any fees and expenses incurred by the indemnified
party (including any fees and expenses incurred in connection with investigating
or preparing to defend such action or proceeding) shall be paid to the
indemnified party, as incurred, within thirty (30) days of written notice
thereof to the indemnifying party (regardless of whether it is ultimately
determined that an
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indemnified party is not entitled to indemnification hereunder). Any such
indemnified party shall have the right to employ separate counsel in any such
action, claim or proceeding and to participate in the defense thereof, but the
fees and expenses of such counsel shall be the expenses of such indemnified
party unless (i) the indemnifying party has agreed to pay such fees and
expenses, (ii) the indemnifying party shall have failed to promptly assume the
defense of such action, claim or proceeding, or (iii) the named parties to any
such action, claim or proceeding (including any impleaded parties) include both
such indemnified party and the indemnifying party, and such indemnified party
shall have been advised by counsel that there may be one or more legal defenses
available to it which are different from or in addition to those available to
the indemnifying party and that the assertion of such defenses would create a
conflict of interest such that counsel employed by the indemnifying party could
not faithfully represent the indemnified party (in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such
action, claim or proceeding on behalf of such indemnified party, it being
understood, however, that the indemnifying party shall not, in connection with
any one such action, claim or proceeding or separate but substantially similar
or related actions, claims or proceedings in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one additional firm of attorneys (together with
appropriate local counsel) at any time for all such indemnified parties, unless
in the reasonable judgment of such indemnified party a conflict of interest may
exist between such indemnified party and any other of such indemnified parties
with respect to such action, claim or proceeding, in which event the
indemnifying party shall be obligated to pay the fees and expenses of such
additional counsel or counsels). No indemnifying party shall be liable to an
indemnified party for any settlement of any action, proceeding or claim without
the written consent of the indemnifying party, which consent shall not be
unreasonably withheld.
(d) Contribution. If the indemnification required by this
Section 8 from the indemnifying party is unavailable to an indemnified party
hereunder in respect of any losses, claims, damages, liabilities or expenses
referred to in this Section 8:
(i) The indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses,
claims, damages, liabilities or expenses in such proportion as
is appropriate to reflect the relative fault of the
indemnifying party and indemnified parties in connection with
the actions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of such
indemnifying party and indemnified parties shall be determined
by reference to, among other things, whether any Violation has
been committed by, or relates to information supplied by, such
indemnifying party or indemnified parties, and the parties'
relative intent, knowledge, access to information and
opportunity to correct or prevent such Violation. The amount
paid or payable by a party as a result of the losses,
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16
claims, damages, liabilities and expenses referred to above
shall be deemed to include, subject to the limitations set
forth in Section 8(a) and Section 8(b), any legal or other
fees or expenses reasonably incurred by such party in
connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be
just and equitable if contribution pursuant to this Section
8(d) were determined by pro rata allocation or by any other
method of allocation which does not take into account the
equitable considerations referred to in Section 8(d)(i). 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.
(e) Full Indemnification. If indemnification is available
under this Section 8, the indemnifying parties shall indemnify each indemnified
party to the full extent provided in this Section 8 without regard to the
relative fault of such indemnifying party or indemnified party or any other
equitable consideration referred to in Section 8(d)(i).
(f) Survival. The obligations of the Company and the Selling
Holders of Registrable Securities under this Section 8 shall survive the
completion of any offering of Registrable Securities pursuant to a registration
statement under this agreement, and otherwise.
Section 9. Transfer of Registration Rights. Rights with
respect to Registrable Securities may be Transferred as follows: all rights of a
Holder with respect to Registrable Securities pursuant to this Agreement may be
Transferred by such Holder to any Person in connection with the Transfer of
Registrable Securities to such Person, in all cases, if the transferor or
transferee shall have delivered to the secretary of the Company, reasonably
promptly following the date of the Transfer, written notification of such
Transfer setting forth the name of the transferor, name and address of the
transferee, and the number of Registrable Securities which shall have been so
Transferred.
Section 10. Covenants of the Company. The Company hereby
agrees and covenants as follows:
(a) Exchange Act Filings. The Company shall file as and when
applicable, on a timely basis, all reports required to be filed by it under the
Exchange Act. If the Company is not required to file reports pursuant to the
Exchange Act, upon the request of any Holder of Registrable Securities, the
Company shall make publicly available the information specified in subparagraph
(c)(2) of Rule 144. The Company shall take such further action as may be
reasonably required from time to time and as may be within the reasonable
control of the Company, to enable the Holders to Transfer Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144 or any similar rule or regulation hereafter
adopted by the Commission.
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In connection with any sale, transfer or other disposition by
a Holder of any Registrable Securities pursuant to Rule 144, the Company shall
cooperate with such Holder 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 for such number of shares and registered in such names as the Holder may
reasonably request at least two business days prior to any sale of Registrable
Securities.
(b) Merger, Consolidations and Sale of Assets. The Company
shall not, directly or indirectly, (x) enter into any merger, consolidation or
reorganization in which the Company shall not be the surviving corporation or
(y) Transfer or agree to Transfer all or substantially all the Company's assets,
unless prior to such merger, consolidation, reorganization or asset Transfer,
the surviving corporation or the transferee, respectively, shall have agreed in
writing to assume the obligations of the Company under this Agreement, and for
that purpose references hereunder to "Registrable Securities" shall be deemed to
include the securities which the Holders of Registrable Securities would be
entitled to receive in exchange for Registrable Securities pursuant to any such
merger, consolidation or reorganization.
Section 11. Miscellaneous.
(a) Amendments and Waivers.
(i) The provisions of this Agreement, including the
provisions of this Section 11(a), may not be amended, modified
or supplemented, and waivers or consents to departures from
the provisions hereof may not be given without the written
consent of the Company and the Holders.
(ii) Notice of any amendment, modification or
supplement to this Agreement adopted in accordance with this
Section 11 shall be provided by the Company to the Holders at
least thirty (30) days prior to the effective date of such
amendment, modification or supplement.
(b) Notices. All notices or other communications under this
Agreement shall be sufficient if in writing and delivered by hand or sent by
telecopy, or sent, postage prepaid by registered, certified or express mail, or
by recognized overnight air courier service and shall be deemed given when so
delivered by hand or telecopied, or if mailed or sent by overnight courier
service, on the third Business Day after mailing (one Business Day in the case
of express mail or overnight courier service) to the parties at the following
addresses:
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(i) if to VRLP, to:
Vornado Realty L.P.
c/o Vornado Realty Trust
Park 80 West Plaza II
Saddlebrook, New Jersey 07663
Attention: Joseph Macnow
Executive Vice President, Finance and
Administration
with a copy to:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: Alan J. Sinsheimer
and:
(ii) if to EOPLP, to:
EOP Operating Limited Partnership
Two North Riverside Plaza
Chicago, Illinois 60606
To the attention of each of: Stanley M. Stevens
Richard D. Kincaid
with a copy to:
Rosenberg & Liebentritt, P.C.
Two North Riverside Plaza, Suite 1600
Chicago, Illinois 60606
Attention: Jonathan Wasserman
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(iii) if to the GM Trust, to:
Mellon Bank N.A., as trustee for
General Motors Hourly-
Rate Employes Pension Trust
Mellon Bank N.A., as trustee for
General Motors Salaried
Employes Pension Trust
One Mellon Bank Center
Pittsburgh, Pennsylvania 15258-0001
Attention: Bernadette Rist,
Legal Department
with a copy to:
Weil, Gotshal & Manges, LLP
767 Fifth Avenue
New York, New York 10153
Attention: Gerald S. Backman, P.C.
(iv) if to the Company, to:
Capital Trust
605 Third Avenue,
26th Floor,
New York, New York 10016
Attention: John R. Klopp
with a copy to:
Battle Fowler LLP
75 East 55th Street
New York, New York 10022
Attention: Thomas E. Kruger
or at such other address as the addressee may have furnished in writing to the
sender as provided herein.
(c) Successors, Assigns and Transferees.
(i) This Agreement shall inure to the benefit of and
be binding upon the successors, assigns and transferees of
each of the parties.
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(ii) If any successor, assignee or transferee of the
Holder shall acquire Registrable Securities, in any manner,
whether by operation of law or otherwise, such Registrable
Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable
Securities such Person shall be entitled to receive the
benefits hereof and shall be conclusively deemed to have
agreed to be bound by all of the terms and provisions hereof.
(iii) The term "successor, assignee or transferee of
a Holder" shall include any Person that acquires Registrable
Securities by operation of law, including upon the merger or
consolidation, liquidation or dissolution of the Holder.
(d) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(e) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(f) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
(g) Specific Performance. The parties hereto acknowledge that
there would be no adequate remedy at law if any party fails to perform any of
its obligations hereunder, and accordingly agree that each party, in addition to
any other remedy to which it may be entitled at law or in equity, shall be
entitled to compel specific performance of the obligations of any other party
under this Agreement in accordance with the terms and conditions of this
Agreement in any court of the United States or any State thereof having
jurisdiction.
(h) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
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IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement, or caused this Agreement to be duly executed on its behalf, as of the
date first written above.
CAPITAL TRUST
By: /s/ John R. Klopp
----------------------------------------
Name: John R. Klopp
Title: Chief Executive Officer
EOP OPERATING LIMITED PARTNERSHIP
By: Equity Office Properties Trust, its general partner
By: /s/ Debra L. Ferruzzi
-----------------------------------
Name: Debra L. Ferruzzi
Title: Senior Vice President
VORNADO REALTY L.P.
By: Vornado Realty Trust, its general partner
By: /s/ Michael D. Fascitelli
----------------------------------
Name: Michael D. Fascitelli
Title: President
MELLON BANK, N.A., as trustee for
General Motors Hourly-Rate Employes Pension Trust
By: /s/ Bernadette Rist
---------------------------------------
Name: Bernadette Rist
Title: Authorized Signatory
732353.7
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MELLON BANK, N.A., as trustee for
General Motors Salaried Employes Pension Trust
By: /s/ Bernadette Rist
---------------------------------------
Name: Bernadette Rist
Title: Authorized Signatory
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