THE MACERICH COMPANY
$150,000,000
7 1/4% Convertible Subordinated Debentures Due 2002
REGISTRATION RIGHTS AGREEMENT
New York, New York
June 27, 1997
Lazard Capital Markets
Lazard Freres & Co. LLC
Lehman Brothers International (Europe)
UBS Limited
c/o Lazard Capital
21 Moorfields Markets
London EC2PZHT
England
As Representative of the
several Managers and
Lazard Freres & Co. LLC
Dear Sirs:
The Macerich Company, a Maryland corporation (the "Company"), proposes
to issue and sell to the several managers (the "Managers") named in Schedule I
to the purchase agreement (the "Purchase Agreement"), upon the terms set forth
in the Purchase Agreement, $150,000,000 principal amount (plus an additional
$25,000,000 principal amount to cover over-allotments, if any) of its 7.25%
Convertible Subordinated Debentures Due 2002 (the "Initial Placement"). The
7.25% Convertible Subordinated Debentures Due 2002 will be convertible into
shares of Common Stock, par value $0.01 per share (the "Common Stock"), of the
Company at the conversion price set forth in the Offering Circular dated
June 20, 1997 (the "Offering Circular"). As an inducement to the Managers and
Lazard Freres & Co. LLC ("LFC") to enter into the Purchase Agreement and in
satisfaction of a condition to your obligations thereunder, the Company agrees
with you, (i) for your benefit and (ii) for the benefit of the holders
(including you) of those 7.25% Convertible Subordinated Debentures Due 2002
referred to in the Purchase Agreement as "144A Securities" (the "Securities") or
the Common Stock issuable upon conversion
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of the Securities from time to time until such time as such Securities and
Common Stock issued upon conversion of such Securities have been sold pursuant
to the Shelf Registration Statement (as defined below) (each of the foregoing a
"Holder" and together the "Holders"), as follows:
1. DEFINITIONS. Capitalized terms used herein without definition
shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following capitalized defined terms shall have the
following meanings:
"ACT" means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"AFFILIATE" of any specified person means any other person that,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such specified person. For purposes of this definition, control
of a person means the power, direct or indirect, to direct or cause the
direction of the management and policies of such person whether by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"CLOSING DATE" means June 27, 1997.
"COMMISSION" means the Securities and Exchange Commission.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"HOLDER" has the meaning set forth in the preamble hereto.
"INDENTURE" means the Indenture relating to the Securities, to be
entered into by the Company and Chase Manhattan Trustees Limited, as Trustee,
as the same may be amended from time to time in accordance with the terms
thereof.
"INITIAL PLACEMENT" has the meaning set forth in the preamble hereto.
"LFC" has the meaning set forth in the preamble hereto.
"MAJORITY HOLDERS" means, in any particular Underwritten Offering, the
Holders of a majority of the aggregate principal amount of Securities registered
under a
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Shelf Registration Statement and participating in such Underwritten Offering;
PROVIDED, that Holders of Common Stock issued upon conversion of Securities
shall be deemed to be Holders of the aggregate principal amount of Securities
from which such Common Stock was converted.
"MANAGING UNDERWRITERS" means the investment banker or investment
bankers and manager or managers that shall administer an Underwritten Offering
of the securities covered by the Shelf Registration Statement.
"OFFERING CIRCULAR" has the meaning set forth in the Purchase
Agreement.
"PROSPECTUS" means the prospectus included in any Shelf Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Securities or Common Stock issuable upon
conversion thereof, covered by such Shelf Registration Statement, and all
amendments and supplements to the Prospectus, including post-effective
amendments.
"PURCHASE AGREEMENT" means the agreement dated June 20, 1997 between
the Company and the several Managers.
"SECURITIES" has the meaning set forth in the preamble hereto.
"SHELF REGISTRATION" means a registration effected pursuant to
Section 2 hereof.
"SHELF REGISTRATION PERIOD" has the meaning set forth in Section 2(b)
hereof.
"SHELF REGISTRATION STATEMENT" means a "shelf" registration statement
of the Company pursuant to the provisions of Section 2 hereof which covers some
or all of the Securities and the Common Stock issuable upon conversion thereof,
as applicable, on an appropriate form under Rule 415 under the Act or any
similar rule that may be adopted by the Commission, and all amendments and
supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 (15 U.S.
Code Sections 77aaa-77bbbb).
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"TRUSTEE" means the trustee with respect to the Securities under the
Indenture.
"UNDERWRITER" means any underwriter of Securities or Common Stock
issuable upon conversion thereof in connection with an offering thereof under a
Shelf Registration Statement.
"UNDERWRITTEN OFFERING" mean an underwritten offering of a minimum of
$15,000,000 aggregate principal amount of Securities (including shares of Common
Stock issued upon conversion of an equivalent principal amount of Securities).
2. SHELF REGISTRATION; SUSPENSION OF USE OF PROSPECTUS. (a) The
Company shall prepare and, not later than 120 days following the Closing Date,
shall file with the Commission and thereafter, but no later than 180 days
following the Closing Date, shall cause to be declared effective under the Act a
Shelf Registration Statement relating to the offer and sale of the Securities
and the Common Stock issuable upon conversion thereof by the Holders from time
to time in accordance with the methods of distribution elected by such Holders
and set forth in such Shelf Registration Statement.
(b) The Company shall use its best efforts to keep the Shelf
Registration Statement continuously effective in order to permit the Prospectus
forming part thereof to be usable by Holders for a period of two years from the
Closing Date or such shorter period that will terminate when all the Securities
and Common Stock issuable upon conversion thereof covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement (in any such case, such period being called the "Shelf Registration
Period"). The Company shall be deemed not to have used its best efforts to keep
the Shelf Registration Statement effective during the requisite period if it
voluntarily takes any action that would result in Holders of securities covered
thereby not being able to offer and sell such securities during that period,
unless such action is (i) required by applicable law or (ii) pursuant to
Section 2(c) hereof, and, in either case, so long as the Company promptly
thereafter complies with the requirements of Section 3(j) hereof, if applicable.
(c) The Company may suspend the use of the Prospectus for a period
not to exceed 45 days in any ninety day period for valid business reasons (not
including avoidance of the Company's obligations hereunder), including the
acquisition or divestiture of assets, public filings
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with the Commission, pending corporate developments and similar events.
3. REGISTRATION PROCEDURES. In connection with any Shelf
Registration Statement, the following provisions shall apply:
(a) The Company shall furnish to you for your timely review, prior to
the filing thereof with the Commission, a copy of any Shelf Registration
Statement, and each amendment thereof and each amendment or supplement, if
any, to the Prospectus included therein and shall use its best efforts to
reflect in each such document, when so filed with the Commission, such
comments as you reasonably may propose.
(b) The Company shall ensure that (i) any Shelf Registration
Statement and any amendment thereto and any Prospectus forming part thereof
and any amendment or supplement thereto complies in all material respects
with the Act and the rules and regulations thereunder, (ii) any Shelf
Registration Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading and (iii) any Prospectus forming part of
any Shelf Registration Statement, and any amendment or supplement to such
Prospectus, does not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
(c) (1) The Company shall advise you and the Holders and, if
requested by you or any such Holder, confirm such advice in writing:
(i) when a Shelf Registration Statement and any amendment thereto
has been filed with the Commission and when the Shelf Registration
Statement or any post-effective amendment thereto has become
effective; and
(ii) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the Prospectus
included therein or for additional information.
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(2) The Company shall advise you and the Holders and, if requested by
you or any such Holder, confirm such advice in writing:
(i) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement or
the initiation of any proceedings for that purpose;
(ii) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the securities
included in any Shelf Registration Statement for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose; and
(iii) of the suspension of the use of the Prospectus pursuant to
Section 2(c) hereof or of the happening of any event that requires the
making of any changes in the Shelf Registration Statement or the
Prospectus so that, as of such date, the statements therein are not
misleading and do not omit to state a material fact required to be
stated therein or necessary to make the statements therein (in the
case of the Prospectus, in light of the circumstances under which they
were made) not misleading (which advice shall be accompanied by an
instruction to suspend the use of the Prospectus until the requisite
changes have been made); PROVIDED that such notice of the suspension
of the use of the Prospectus pursuant to Section 2(c) hereof shall not
be required to specify the nature of the event giving rise to the
notice requirement hereunder.
(d) The Company shall use its best efforts to obtain the withdrawal
of any order suspending the effectiveness of any Shelf Registration
Statement at the earliest possible time.
(e) The Company shall furnish to each Holder of securities included
within the coverage of any Shelf Registration Statement, without charge, at
least one copy of such Shelf Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, and, if
the Holder so requests in writing, all exhibits (including those
incorporated by reference).
(f) The Company shall, during the Shelf Registration Period, deliver
to each Holder of securities included within the coverage of any Shelf
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Registration Statement, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such Holder may
reasonably request; and the Company consents to the use, in compliance with
the terms of this Agreement, of the Prospectus or any amendment or
supplement thereto by each of the selling Holders of securities in
connection with the offering and sale of the securities covered by the
Prospectus or any amendment or supplement thereto.
(g) Prior to any offering of securities pursuant to any Shelf
Registration Statement, the Company shall register or qualify or cooperate
with the Holders of securities included therein and their respective
counsel in connection with the registration or qualification of such
securities for offer and sale under the securities or blue sky laws of such
U.S. jurisdictions as any such Holders reasonably request in writing and do
any and all other acts or things necessary or advisable to enable the offer
and sale in such jurisdictions of the securities covered by such Shelf
Registration Statement; PROVIDED, HOWEVER, that the Company will not be
required to qualify generally to do business in any jurisdiction where it
is not then so qualified or to take any action which would subject it to
general service of process or to taxation in any such jurisdiction where it
is not then so subject.
(h) The Company shall as promptly as practicable use all reasonable
efforts to list any Common Stock issuable upon conversion of the Securities
and offered pursuant to any Shelf Registration Statement on each national
securities exchange on which the Common Stock is then listed, if the
listing of such Common Stock is then permitted under the rules of such
exchange.
(i) The Company shall cooperate with the Holders of Securities or the
Common Stock issued upon conversion thereof to facilitate the timely
preparation and delivery of certificates representing Securities or the
Common Stock issued upon conversion thereof to be sold pursuant to any
Shelf Registration Statement free of any restrictive legends and in such
denominations and registered in such names as Holders may request prior to
sales of securities pursuant to such Shelf Registration Statement.
(j) Upon the occurrence of any event contemplated by
paragraph (c)(2)(iii) above, the Company shall, if required pursuant to the
Act or paragraph (c)(2)(iii)
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above, promptly prepare a post-effective amendment to any Shelf
Registration Statement or an amendment or supplement to the related
Prospectus or file any other required document so that, as thereafter
delivered to purchasers of the securities included therein, the Prospectus
will not include an untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(k) Not later than the effective date of any Shelf Registration
Statement hereunder, the Company shall provide a CUSIP number for the
Securities registered under such Shelf Registration Statement, and provide
the Trustee with printed certificates for such Securities, in a form
eligible for deposit with The Depository Trust Company.
(l) The Company shall use its best efforts to comply with all
applicable rules and regulations of the Commission and shall make generally
available to its security holders as soon as practicable after the
effective date of the applicable Shelf Registration Statement an earnings
statement satisfying the provisions of Section 11(a) of the Act (which may
be satisfied in the manner provided by Rule 158 under the Act).
(m) The Company shall cause the Indenture to be qualified under the
Trust Indenture Act in a timely manner.
(n) The Company may require each Holder of securities to be sold
pursuant to any Shelf Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of such securities as
the Company may from time to time reasonably require for inclusion in such
Shelf Registration Statement. Any Holder who fails to provide such
information within a reasonable time after receiving such request shall not
be entitled to use the Prospectus.
(o) The Company shall, if requested, promptly incorporate in a
Prospectus supplement or post-effective amendment to a Shelf Registration
Statement, such information as the Managing Underwriters and/or Majority
Holders reasonably agree should be included therein and shall make all
required filings of such Prospectus supplement or post-effective amendment
as
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soon as notified of the matters to be incorporated in such Prospectus
supplement or post-effective amendment.
(p) The Company shall enter into such agreements (including, in
connection with an Underwritten Offering, underwriting agreements) and take
all other appropriate actions in order to expedite or facilitate the
registration or the disposition of the Securities or the Common Stock
issuable upon conversion thereof, and in connection therewith, if an
underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures no less favorable than those set
forth in Section 7 (or such other provisions and procedures acceptable to
the Majority Holders and the Managing Underwriters, if any), with respect
to all parties to be indemnified pursuant to Section 7 from Holders of
Securities or the Common Stock issuable upon conversion thereof to the
Company.
(q) The Company shall (i) make reasonably available for inspection by
the Holders of securities to be registered thereunder, any underwriter
participating in any disposition pursuant to such Shelf Registration
Statement, and any attorney, accountant or other agent retained by the
Holders or any such underwriter all relevant financial and other records,
pertinent corporate documents and properties of the Company and its
subsidiaries in connection with such Shelf Registration Statement as is
customary for similar due diligence examinations; (ii) cause the Company's
officers, directors and employees to supply all relevant information
reasonably requested by the Holders or any such underwriter, attorney,
accountant or agent in connection with such Shelf Registration Statement as
is customary for similar due diligence examinations; PROVIDED, HOWEVER,
that any information that is designated in writing by the Company, in good
faith, as confidential at the time of delivery of such information shall be
kept confidential by the Holders or any such underwriter, attorney,
accountant or agent, unless disclosure thereof is made in connection with a
court proceeding or required by law, or such information has become
available (not in violation of this agreement) to the public generally or
through a third party without an accompanying obligation of
confidentiality, and the Company shall be entitled to request that such
Holders sign a confidentiality agreement to the foregoing effect; (iii) in
connection with an Underwritten Offering, make such representations and
warranties to the Holders of securities registered thereunder and the
underwriters,
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if any, in form, substance and scope as are customarily made by issuers to
underwriters, in primary underwritten offerings and covering matters
including, but not limited to, those set forth in the Purchase Agreement;
(iv) in connection with an Underwritten Offering, obtain opinions of
counsel to the Company and updates thereof (which counsel and opinions (in
form, scope and substance) shall be reasonably satisfactory to the Managing
Underwriters, if any) addressed to each selling Holder and the
underwriters, if any, covering such matters as are customarily covered in
opinions requested in underwritten offerings and such other matters as may
be reasonably requested by such Holders and underwriters; (v) in connection
with an Underwritten Offering, obtain "cold comfort" letters and updates
thereof from the independent certified public accountants of the Company
(and, if necessary, any other independent certified public accountants of
any subsidiary of the Company or of any business acquired by the Company
for which financial statements and financial data are, or are required to
be, included in the Shelf Registration Statement), addressed to each
selling Holder of securities registered thereunder and the underwriters, if
any, in customary form and covering matters of the type customarily covered
in "cold comfort" letters in connection with primary underwritten
offerings; and (vi) in connection with an Underwritten Offering, deliver
such documents and certificates as may be reasonably requested by the
Majority Holders and the Managing Underwriters, if any, including those to
evidence compliance with Section 3(j) and with any customary conditions
contained in the underwriting agreement or other agreement entered into by
the Company. The foregoing actions set forth in clauses (iii), (iv), (v)
and (vi) of this Section 3(q) shall be performed at (A) the effectiveness
of such Shelf Registration Statement and each post-effective amendment
thereto and (B) each closing under any underwriting or similar agreement as
and to the extent required thereunder.
4. AGREEMENT OF HOLDERS REGARDING USE OF PROSPECTUS. Each Holder of
Securities covered by a Shelf Registration Statement (including the Managers and
LFC) severally agrees with the Company that such Holder will not use the
Prospectus, in each case after notice by the Company of the applicable event,
(w) during any period of suspension referred to in Section 2(c), (x) during any
period when a stop order is in effect as referred to in Section 3(c)(2)(i), (y)
in the applicable jurisdiction during any period when the qualification of the
Securities included in the Shelf Registration Statement has been
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suspended in such jurisdiction, as referred to in Section 3(c)(2)(ii), and (z)
during any suspension period referred to in Section 3(c)(2)(iii).
5. REGISTRATION EXPENSES. The Company shall bear all expenses
incurred in connection with the performance of its obligations under Sections
2 and 3 hereof and, in connection with an Underwritten Offering, shall
reimburse the Holders for the reasonable and duly documented fees and
disbursements of one firm or counsel designated by the Majority Holders to
act as counsel for the Holders in connection therewith. The Company shall not
be responsible for the payment of any underwriting or brokerage fees and
discounts.
6. ADDITIONAL INTEREST UNDER CERTAIN CIRCUMSTANCES. (a) Additional
interest ("Additional Interest") with respect to all of the outstanding 7.25%
Convertible Subordinated Debentures Due 2002 of the Company (the "Outstanding
Debentures") shall be assessed as follows if any of the following events
occur (each such event in clauses (i) through (iii) below a "Registration
Default"):
(i) if within 120 days after the Closing Date, the Shelf Registration
Statement has not been filed with the Commission;
(ii) if within 180 days after the Closing Date, the Shelf Registration
Statement is not declared effective by the Commission; or
(iii) if after the Shelf Registration Statement is declared
effective, (A) such Registration Statement thereafter ceases to be
effective before the second anniversary of Closing Date (or, in the event
that Rule 144(k) under the Act is amended to provide for a shorter
holding period, until the end of such shorter period) or the date as of
which all of the Securities and the Common Stock are sold pursuant to the
Shelf Registration Statement; or (B) such Registration Statement or the
related prospectus ceases to be usable because either (1) any event occurs
as a result of which the related prospectus forming part of such
Registration Statement would include any untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or (2) it shall be necessary to amend such Registration
Statement or supplement the related prospectus, to comply with the
Act or the Exchange Act or the respective rules thereunder.
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(b) (i) If the Company fails to comply with (a)(i) above,
Additional Interest shall accrue on the Outstanding Debentures over and above
the interest set forth in the title of the Outstanding Debentures as follows:
the per annum interest rate on the Outstanding Debentures will increase by 25
basis points, such increase remaining in effect until the date on which such
Shelf Registration Statement is filed, on which date the interest rate on the
Outstanding Debentures will revert to the interest rate originally borne by
the Outstanding Debentures, plus any increase in such rate pursuant to
(b)(ii) below.
(ii) If the Shelf Registration Statement is not declared effective
as provided in (a)(ii) above, then, at such time and on each date that would
have been the successive 30th day following such time, the per annum interest
rate on the Outstanding Debentures (which interest rate will be the original
interest rate on the Outstanding Debentures plus any incerease or increases
in such interest rate pursuant to (b)(i) above and pursuant to this clause)
will increase by an additional 25 basis points; provided, that the per annum
interest rate will not increase by more than 50 basis points pursuant to this
clause and and will not increase by more than 75 basis points pursuant to
this clause and clause (b)(i) above. Such increase or increases will remain
in effect until the date on which such Shelf Registration Statement is
declared effective, on which date the interest rate on the Outstanding
Debentures will revert to the interest rate originally borne by the
Outstanding Debentures.
(iii) If the Company fails to keep the Shelf Registration Statement
continuously effective or usuable for the period specified in (a)(iii) above,
then at such time as the Shelf Registration Statement is no longer effective
or usuable, as the case may be, and on each date thereafter that is the
successive 30th day subsequent to such time and until the earliest of (A) the
date that the Shelf Registration Statement is again deemed effective or
usable, as the case may be, (B) the date that is the second anniversary of
the date of the Closing Date (or, in the event that Rule 144(k) under the
1933 Act is amended to provide for a shorter holding period, until the end of
such shorter period) or (C) the date as of which all of the Securities and
the Common Stock are sold pursuant to the Shelf Registration Statement, the
per annum interest rate on the Outstanding Debentures will increase by an
additional 25 basis points; provided, however, that the per annum interest
rate will not increase by more than 50 basis points pursuant to this clause
(a)(iii).
(c) A Registration Default referred to in Section 6(a)(iii)(B) shall
be deemed not to have occurred and be continuing in relation to a Shelf
Registration
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Statement or the related prospectus if (i) such Registration Default has
occurred solely as a result of (x) the filing of a post-effective amendment
to such Shelf Registration Statement to incorporate annual audited financial
information with respect to the Company where such post-effective amendment
is not yet effective and needs to be declared effective to permit Holders to
use the related prospectus or (y) other material events, with respect to the
Company that would need to be described in such Shelf Registration Statement
or the related prospectus and (ii) in the case of clause (y), the Company is
proceeding promptly and in good faith to amend or supplement such Shelf
Registration Statement and related prospectus to describe such events;
PROVIDED, HOWEVER, that in any case if such Registration Default occurs for a
continuous period in excess of 30 days, Additional Interest shall be payable
in accordance with the above paragraph from the day following such 30-day
period until the date on which such Registration Default is cured.
(d) Any amounts of Additional Interest due pursuant to clause
(a)(i), (a)(ii) or (a)(iii) of Section 6 above will be payable in cash on the
regular interest payment dates with respect to the Outstanding Debentures.
The amount of Additional Interest will be determined by multiplying the
applicable Additional Interest rate by the principal amount of the
Outstanding Debentures, multiplied by a fraction, the numerator of which is
the number of days such Additional Interest rate was applicable during such
period (determined on the basis of a 360-day year comprised of twelve 30-day
months), and the denominator of which is 360.
7. INDEMNIFICATION AND CONTRIBUTION. (a) In connection with any
Shelf Registration Statement, the Company agrees to indemnify and hold harmless
each Holder of securities covered thereby (including the Managers and LFC), each
Affiliate of such Holder, the directors, partners, officers, employees and
agents of each such Holder and each person who controls any such Holder within
the meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Shelf Registration Statement as originally filed or in any
amendment thereof, or in any preliminary Prospectus or Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material
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fact required to be stated therein or necessary to make the statements therein
not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; PROVIDED, HOWEVER, that (i) the Company will not be liable
in any case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf of any such
Holder or underwriter or Managing Underwriter specifically for inclusion
therein, (ii) the Company will not be liable to any indemnified party under this
indemnity agreement with respect to any Shelf Registration Statement or
Prospectus to the extent that any such loss, claim, damage or liability of such
indemnified party results from the use of the Prospectus during a period when
the use of the Prospectus has been suspended in accordance with Section 2(c) or
Section 3(c)(2)(iii) hereof, PROVIDED, in each case, that Holders received prior
notice of such suspension; and (iii) the Company shall not be liable to any
indemnified party under this indemnity agreement in this Section 6(a) with
respect to any preliminary Prospectus to the extent that any such loss, claim,
damage or liability of such indemnified party results from the fact that such
indemnified party sold Securities or Common Stock issued upon conversion thereof
to a person as to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus or of the Prospectus as then
amended or supplemented in any case where such delivery is required by the Act,
if the loss, claim, damage or liability of such indemnified party results from
an untrue statement or omission of a material fact contained in the preliminary
Prospectus which was corrected in the Prospectus or in the Prospectus as then
amended or supplemented. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
The Company also agrees to indemnify or contribute to Losses, as
provided in Section 7(d), of any underwriters of Securities or the Common Stock
issued upon conversion thereof registered under a Shelf Registration Statement,
their officers and directors and each person who controls such underwriters on
substantially the same basis as that of the indemnification of the Managers, LFC
and the selling Holders provided in this Section 7(a) and shall, if requested by
any Holder in connection with an Underwritten Offering, enter into an
underwriting agreement reflecting such agreement, as provided in Section 3(p)
hereof.
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(b) Each Holder of securities covered by a Shelf Registration
Statement (including the Managers and LFC) severally agrees to indemnify and
hold harmless (i) the Company, (ii) each of its directors, (iii) each of its
officers who signs such Shelf Registration Statement and (iv) each person who
controls the Company within the meaning of either the Act or the Exchange Act to
the same extent as the foregoing indemnity from the Company to each such Holder,
but only with reference to written information relating to such Holder furnished
to the Company by or on behalf of such Holder specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); PROVIDED, HOWEVER, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel (and local
counsel) if (i) the use of counsel chosen by the indemnifying party to represent
the indemnified party would present such counsel with a conflict of interest,
(ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to
16
the indemnifying party, (iii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the institution of such action or
(iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An indemnifying
party will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 7 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which such
indemnified party may be subject in such proportion as is appropriate to reflect
the relative benefits received by such indemnifying party, on the one hand, and
such indemnified party, on the other hand, from the Initial Placement and the
Shelf Registration Statement which resulted in such Losses; PROVIDED, HOWEVER,
that in no case shall the Managers, LFC or any subsequent Holder of any Security
or the Common Stock issued upon conversion thereof be responsible, in the
aggregate, for any amount in excess of the purchase discount or commission
applicable to such Security, as set forth in Section 3 of the Purchase
Agreement, nor shall any underwriter be responsible for any amount in excess of
the underwriting discount or commission applicable to the securities purchased
by such underwriter under the Shelf Registration Statement which resulted in
such Losses. If the allocation provided by the immediately preceding sentence
is unavailable for any reason, the indemnifying party and the indemnified party
shall contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of such indemnifying party, on the
one hand, and such indemnified party, on the other hand, in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company shall be
deemed to be equal
17
to the total net proceeds from the Initial Placement (before deducting expenses)
as set forth in the "Use of Proceeds" Section of the Offering Circular.
Benefits received by the Managers and LFC shall be deemed to be equal to the
total purchase discounts and commissions as set forth in Section 3 of the
Purchase Agreement and benefits received by any other Holders shall be deemed to
be equal to the value of receiving Securities or the Common Stock issuable upon
conversion thereof registered under the Act. Benefits received by any
underwriter shall be deemed to be equal to the total underwriting discounts and
commissions, as set forth on the cover page of the Prospectus forming a part of
the Shelf Registration Statement which resulted in such Losses. Relative fault
shall be determined by reference to whether any alleged untrue statement or
omission relates to information provided by the indemnifying party, on the one
hand, or by the indemnified party, on the other hand. The parties agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 7, each person who controls a Holder within the meaning of either
the Act or the Exchange Act and each director, officer, employee and agent of
such Holder shall have the same rights to contribution as such Holder, and each
person who controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed the Shelf
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (d).
(e) The provisions of this Section 7 will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder or
the Company or any of the officers, directors or controlling persons referred to
in Section 5 hereof, and will survive the sale by a Holder of securities covered
by a Shelf Registration Statement.
8. MISCELLANEOUS. (a) NO INCONSISTENT AGREEMENTS. The Company has
not, as of the date hereof, entered into, nor shall it, on or after the date
hereof, enter into, any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
18
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of the Holders of at least a majority of the then outstanding aggregate
principal amount of Securities or the Common Stock issued upon conversion
thereof, in each case, that has not yet been sold pursuant to a Shelf
Registration Statement; PROVIDED that, with respect to any matter that directly
or indirectly affects the rights of the Managers and LFC hereunder, the Company
shall obtain the written consent of the Managers and LFC against which such
amendment, qualification, supplement, waiver or consent is to be effective.
Notwithstanding the foregoing (except the foregoing proviso), a waiver or
consent to departure from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose securities are being sold
pursuant to a Shelf Registration Statement and that does not directly or
indirectly affect the rights of other Holders may be given by the Majority
Holders, determined on the basis of securities being sold rather than registered
under such Shelf Registration Statement.
(c) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
(1) if to a Holder, at the most current address given by such holder
to the Company in accordance with the provisions of this Section 7(c),
which address initially is, with respect to each Holder, the address of
such Holder maintained by the Registrar under the Indenture, with a copy in
like manner to Lazard Freres & Co. LLC;
(2) if to you, initially at the address set forth in the Purchase
Agreement; and
(3) if to the Company, initially at its address set forth in the
Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given when received.
The Managers and LFC or the Company by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
19
(d) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including, without the need for an express assignment or any consent by
the Company thereto, subsequent Holders of Securities or the Common Stock
issuable upon conversion thereof. The Company hereby agrees to extend the
benefits of this Agreement to any Holder of Securities and any such Holder may
specifically enforce the provisions of this Agreement as if an original party
hereto.
(e) COUNTERPARTS. This agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) HEADINGS. The headings in this agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) GOVERNING LAW. This agreement shall be governed by and construed
in accordance with the internal laws of the State of New York applicable to
agreements made and to be performed in said State.
(h) SEVERABILITY. In the event that any one of more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
(i) SECURITIES HELD BY THE COMPANY, ETC. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Securities
or the Common Stock issued upon conversion thereof is required hereunder,
Securities or the Common Stock issued upon conversion thereof held by the
Company or its Affiliates (other than subsequent Holders of Securities or the
Common Stock issuable upon conversion thereof if such subsequent Holders are
deemed to be Affiliates solely by reason of their holdings of such Securities)
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
THE MACERICH COMPANY,
by /s/ Richard A. Bayer
-------------------------
Name: Richard A. Bayer
Title: General Counsel and
Secretary
June 27, 1997
LAZARD CAPITAL MARKETS
LEHMAN BROTHERS INTERNATIONAL (EUROPE)
UBS LIMITED
by
LAZARD CAPITAL MARKETS,
by /s/ Jeremy Sillem
----------------------
Name: Jeremy Sillem
Title: Chief Executive
[Acting on behalf of itself
and as the Representative of
the several Managers]
LAZARD FRERES & CO. LLC,
by /s/ Jeremy Sillem
----------------------
Name: Jeremy Sillem
Title: Authorized Officer