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EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of January 3, 1998, by and between Meditrust Corporation, a
Delaware corporation (the "Company"), Meditrust Operating Company, a Delaware
corporation ("OPCO"), and each of the parties signatory hereto.
RECITALS
WHEREAS, pursuant to (a) an Agreement and Plan of Merger dated as of
January 3, 1998 among the Company, OPCO and La Quinta Inns, Inc., a Texas
corporation ("La Quinta") (the "Merger Agreement"), and (b) a Shareholders
Agreement dated January 3, 1998 among the Company, OPCO, La Quinta, and the
shareholders of La Quinta named on the signature page hereto (the "Holders")
are receiving (i) shares of common stock of the Company, par value $.01 per
share (the "Company Common Stock"), and (ii) shares of common stock of OPCO,
par value $.01 per share (the "OPCO Common Stock"), which shares of Company
Common Stock and OPCO Common Stock are paired and transferable and tradeable
only in combination as a single unit on the New York Stock Exchange (the
"Paired Shares").
NOW, THEREFORE, in consideration of the mutual promises and agreements
set forth herein and in the Merger Agreement, and other valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:
1. Definitions. For purposes of this Agreement, the following terms
have the following meanings when used herein with initial capital letters:
Advice: As defined in Section 4 hereof.
Losses: As defined in Section 6 hereof.
Prospectus: The prospectus included in any 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 promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement and all other amendments and
supplements to the prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such prospectus.
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Registrable Securities: The Paired Shares issued to the Holders
pursuant to the Merger Agreement excluding (A) Paired Shares that have been
disposed of pursuant to a Registration Statement relating to the sale thereof
that has become effective under the Securities Act, or (B) Paired Shares that
have become eligible to be sold pursuant to Rule 144 or Rule 145 of the
Securities Act, provided that all such Paired Shares referred to in this clause
(B) have become immediately salable within the volume restrictions imposed by
Rule 144 and Rule 145 or as otherwise permitted by either of such Rules.
Registrable Securities shall also include any Paired Shares or other securities
(or Paired Shares underlying such other securities) that may be received by the
Holders (x) as a result of a stock dividend on or stock split of Registrable
Securities or (y) on account of Registrable Securities in a recapitalization of
or other transaction involving the Company and/or OPCO.
Registration Statement: Any registration statement of the
Company and OPCO under the Securities Act that covers any of the Registrable
Securities pursuant to the provisions of this Agreement, including the related
Prospectus, all amendments and supplements to such registration statement
(including post-effective amendments), all exhibits and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended.
2. Registration Rights.
(a) Shelf Registration. The Company and OPCO shall, subject
to the provisions of this Agreement, use reasonable efforts in accordance with
the terms hereof to cause a Registration Statement pursuant to Rule 415 under
the Securities Act (a "Shelf Registration Statement") on Form S-3 relating to
the sale by each of the Holders of their Registrable Securities to be (i) filed
with the SEC on or before the sixtieth (60th) day following the date on which
the merger contemplated by the Merger Agreement becomes effective (the
"Effective Date") and (ii) declared effective by the SEC on or before the
ninetieth (90th) day following the Effective Date. Notwithstanding the
foregoing, no sale by any Holder of Registrable Securities or Paired Shares
shall violate any provision of that certain Shareholders Agreement dated
January 3, 1998. The Company and OPCO agree to use reasonable efforts to keep
the Shelf Registration Statement (or any amendment thereof or replacement or
successor thereto) continuously effective until the earlier of (a) one (1) year
from the Effective Date if the Company shall be in compliance with the public
information requirements referred to in Section 7(k) of this Agreement on such
anniversary date and, if it is not in such compliance, then until the earlier
of the date it is in such compliance or two (2) years from the Effective Date
or (b) the date on which the applicable Holders (or Distributee or other Holder
Transferees) no longer hold any Registrable Securities.
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(b) Postponement of Effectiveness. The Company and OPCO
may in their sole discretion and for any reason whatsoever, postpone the filing
of, or delay the effectiveness of, any Registration Statement required
hereunder for one or more reasonable periods of time, not to exceed thirty (30)
days following the date of this Agreement.
3. Restrictions on Sale by Holders. Each Holder agrees, if such
Holder is so requested (pursuant to a timely written notice) by the Company and
OPCO during any public offering, not to effect any public sale or distribution
of any of the Company's and OPCO's securities of such class, including a sale
pursuant to Rule 144, during the fifteen (15) calendar day period prior to, and
during the sixty (60) calendar day period beginning on, the closing date of
such offering.
4. Registration Procedures. In connection with the Company's and
OPCO's registration obligations pursuant to Section 2 hereof, the Company and
OPCO will effect such registrations to permit the sale of such Registrable
Securities in accordance with the intended method or methods of disposition
thereof, and pursuant thereto the Company and OPCO will as expeditiously as
possible, and in each case to the extent applicable:
(a) Prepare and file with the SEC a Registration Statement or
Registration Statements on Form S-3 under the Securities Act available for the
sale of the Registrable Securities by the holders thereof in accordance with
the intended method or methods of distribution thereof, and cause each such
Registration Statement to become effective and remain effective as provided
herein.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the applicable
period specified in Section 2; cause the related Prospectus to be supplemented
by any required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the intended methods
of disposition by the sellers thereof set forth in such Registration Statement
as so amended or in such Prospectus as so supplemented.
(c) Notify the selling Holders promptly, and (if requested by
any such person) confirm such notice in writing, (i) when a Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and, with
respect to a Registration Statement or any post-effective amendment, when the
same has become effective, (ii) of any request by the SEC or any other federal
or state governmental authority for amendments or supplements to a Registration
Statement or related Prospectus or for additional information, (iii) of the
issuance by the SEC or any other federal or state governmental authority of any
stop order suspending the effectiveness of a Registration Statement or the
initiation of any proceedings for that purpose, (iv) of the receipt by the
Company and OPCO of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable
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Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, and (v) of the occurrence of any event which makes
any statement made in such Registration Statement or related Prospectus or any
document incorporated or deemed to be incorporated therein by reference untrue
in any material respect or which requires the making of any changes in a
Registration Statement, Prospectus or any such document so that, in the case of
the Registration Statement, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading and, in the case of
the Prospectus, it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(d) Use every reasonable effort 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 any of the Registrable Securities for sale in any
jurisdiction, at the earliest possible moment.
(e) If requested by the Holders holding a majority of the
Registrable Securities being registered, (i) promptly incorporate in a
Prospectus supplement or post-effective amendment such information as the
Holders agree should be included therein as may be required by applicable law
and (ii) make all required filings of such Prospectus supplement or such
post-effective amendment as soon as practicable after the Company and OPCO have
received notification of the matters to be incorporated in such Prospectus
supplement or post-effective amendment; provided, however, that the Company and
OPCO will not be required to take any actions under this Section 4(e) that are
not, in the opinion of counsel for the Company and OPCO, in compliance with
applicable law.
(f) Furnish to each selling Holder without charge, at least
one conformed copy of the Registration Statement and any post-effective
amendment thereto, including financial statements (but excluding schedules, all
documents incorporated or deemed incorporated therein by reference and all
exhibits, unless requested in writing by such holder or counsel).
(g) Deliver to each selling Holder without charge as many
copies of the Prospectus or Prospectuses relating to such Registrable
Securities (including each preliminary prospectus) and any amendment or
supplement thereto as such persons may request; and the Company and OPCO hereby
consent to the use of such Prospectus or each amendment or supplement thereto
by each of the selling Holders in connection with the offering and sale of the
Registrable Securities covered by such Prospectus or any amendment or
supplement thereto.
(h) Prior to any public offering of Registrable Securities, to
register or qualify or cooperate with the selling Holders and their respective
counsel in connection with the registration or qualification (or exemption from
such registration or qualification) of such
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Registrable Securities for offer and sale under the securities or blue sky laws
of such jurisdictions within the United States as any seller reasonably
requests in writing; use all reasonable efforts to keep such registration or
qualification (or exemption therefrom) effective during the period the
applicable Registration Statement is required to be kept effective and do any
and all other acts or things necessary or advisable to enable the disposition
in each such jurisdiction of the Registrable Securities covered by the
applicable Registration Statement; provided, however, that the Company and OPCO
will not be required to (i) qualify to do business in any jurisdiction in which
they are not then so qualified or (ii) take any action that would subject them
to service of process generally in any such jurisdiction in which they are not
then so subject.
(i) Cooperate with the selling Holders to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities to be sold.
(j) Upon the occurrence of any event contemplated by Section
4(c)(v) hereof, prepare a supplement or post-effective amendment to each
Registration Statement or a supplement to the related Prospectus or any
document incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of the Registrable
Securities being sold thereunder, such Prospectus will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(k) If requested by Holders holding a majority of the
Registrable Securities covered by such Registration Statement, use all
reasonable efforts to cause all Registrable Securities covered by such
Registration Statement to be (i) listed on each securities exchange, if any, on
which similar securities issued by the Company and OPCO are then listed or, if
no similar securities issued by the Company and OPCO are then so listed, on the
New York Stock Exchange or another national securities exchange if the
securities qualify to be so listed or (ii) authorized to be quoted on the
National Association of Securities Dealers Automated Quotation System
("NASDAQ") or the National Market System of NASDAQ if the securities qualify to
be so quoted.
(l) As needed, (i) engage an appropriate transfer agent and
provide the transfer agent with printed certificates for the Registrable
Securities in a form eligible for deposit with The Depository Trust Company and
(ii) provide a CUSIP number for the Registrable Securities.
(m) Make available for reasonable inspection during normal
business hours by a representative of the Holders holding Registrable
Securities being sold, or any attorney or accountant retained by such selling
Holders, all financial and other records, pertinent corporate documents and
properties of the Company and OPCO and their subsidiaries, and cause the
officers, directors and employees of the Company and OPCO and their
subsidiaries to supply all information reasonably requested by any such
representative, attorney or accountant in
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connection with such Registration Statement; provided, however, that any
records, information or documents that are designated by the Company or OPCO in
writing as confidential at the time of delivery of such records, information or
documents will be kept confidential by such persons unless (i) such records,
information or documents are in the public domain or otherwise publicly
available, (ii) disclosure of such records, information or documents is
required by court or administrative order or is necessary to respond to
inquiries of regulatory authorities, or (iii) disclosure of such records,
information or documents, in the reasonable opinion of counsel to such person,
is otherwise required by law (including, without limitation, pursuant to the
requirements of the Securities Act).
The Company and OPCO may require each seller of Registrable Securities
as to which any registration is being effected to furnish to the Company and
OPCO such information regarding the distribution of such Registrable Securities
as the Company and OPCO may, from time to time, reasonably request in writing
and the Company and OPCO may exclude from such registration the Registrable
Securities of any seller who unreasonably fails to furnish such information
within a reasonable time after receiving such request.
Each Holder will be deemed to have agreed by virtue of its acquisition
of Registrable Securities that, upon receipt of any notice from the Company and
OPCO of (i) the occurrence of any event of the kind described in Section
4(c)(ii), 4(c)(iii), 4(c)(iv) or 4(c)(v) hereof, or (ii) the suspension, by the
Company or OPCO, in their sole discretion for any reason whatsoever, of the
effectiveness of any Registration Statement ("Suspension Notice"), such Holder
will forthwith discontinue disposition of such Registrable Securities covered
by such Registration Statement or Prospectus (a "Black-Out") until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 4(j) hereof, or until it is advised in writing (the
"Advice") by the Company and OPCO that the use of the applicable Prospectus may
be resumed, and such Holder has received copies of any additional or
supplemental filings that are incorporated or deemed to be incorporated by
reference in such Prospectus. Except as expressly provided herein, there shall
be no limitation with regard to the number of Suspension Notices the Company
and OPCO are entitled to give hereunder; provided, however, that (x) in no
event shall the aggregate number of days the Holders are subject to Black-Out
during any period of twelve (12) consecutive months exceed ninety (90) and (y)
no one Black-Out period shall exceed thirty (30) days.
5. Registration Expenses. All fees and expenses incident to the
performance of or compliance with this Agreement by the Company and OPCO will
be borne by the Company and OPCO whether or not any of the Registration
Statements become effective. Such fees and expenses will include, without
limitation, (i) all registration and filing fees (including, without
limitation, fees and expenses for compliance with securities or "blue sky"
laws) (ii) printing expenses (including, without limitation, expenses of
printing certificates for Registrable Securities in a form eligible for deposit
with The Depository Trust Company and of printing a reasonable number of
prospectuses if the printing of such prospectuses is requested by the Holders
holding a majority of the Registrable Securities included in any Registration
Statement), (iii) messenger, telephone and delivery expenses incurred by the
Company and
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OPCO, (iv) fees and disbursements of counsel for the Company and OPCO incurred
by the Company and OPCO, (v) fees and disbursements of all independent certified
public accountants (including the expenses of any special audit and "comfort"
letter required by or incident to such performance) incurred by the Company and
OPCO, (vi) Securities Act liability insurance if the Company or OPCO so desires
such insurance, and (vii) fees and expenses of all other persons retained by the
Company or OPCO. In addition, the Company and OPCO will pay their internal
expenses (including without limitation all salaries and expenses of their
officers and employees performing legal or accounting duties), the expense of
any annual audit, the fees and expenses incurred in connection with the listing
of the securities to be registered on any securities exchange on which similar
securities issued by the Company and OPCO are then listed and the fees and
expenses of any person, including special experts, retained by the Company or
OPCO. The Holders shall be responsible on a pro rata basis for any taxes of any
kind (including, without limitation, transfer taxes) with respect to any
disposition, sale or transfer of Registrable Securities and for any legal,
accounting and other expenses incurred by them in connection with any
Registration Statement.
6. Indemnification.
(a) Indemnification by the Company and OPCO. The Company and
OPCO will, without limitation as to time, indemnify and hold harmless, to the
fullest extent permitted by law, each Holder holding Registrable Securities
registered pursuant to this Agreement, the officers, directors and agents and
employees of each of them, each person who controls such a Holder (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
and the officers, directors, agents and employees of any such controlling
person, from and against all losses, claims, damages, liabilities, costs
(including without limitation the costs of investigation and attorneys' fees)
and expenses (collectively, "Losses"), as incurred, arising out of or based
upon any untrue or alleged untrue statement of a material fact contained in any
Registration Statement, Prospectus or form of Prospectus or in any amendment or
supplement thereto or in any preliminary prospectus, or arising out of or based
upon any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, except insofar as the same are based solely upon information
furnished in writing to the Company and OPCO by such Holder expressly for use
therein; provided, however, that the Company and OPCO will not be liable to any
Holder to the extent that any such Losses arise out of or are based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Registration Statement, Prospectus or preliminary prospectus if
either (A) (i) such Holder failed to send or deliver a copy of the Prospectus
with or prior to the delivery of written confirmation of the sale by such
Holder of a Registrable Security to the person asserting the claim from which
such Losses arise and (ii) the Prospectus would have completely corrected such
untrue statement or alleged untrue statement or such omission or alleged
omission; or (B) such untrue statement or alleged untrue statement, omission or
alleged omission is completely corrected in an amendment or supplement to the
Prospectus previously furnished by or on behalf of the Company and OPCO with
copies of the Prospectus, and such Holder thereafter fails to deliver such
Prospectus as so
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amended or supplemented prior to or concurrently with the sale of a Registrable
Security to the person asserting the claim from which such Losses arise.
(b) Indemnification by Holders. In connection with any
Registration Statement in which a Holder is participating, such Holder will
furnish to the Company and OPCO in writing such information as the Company and
OPCO reasonably request for use in connection with any Registration Statement,
Prospectus or preliminary prospectus and will indemnify, to the fullest extent
permitted by law, the Company and OPCO, their respective directors and
officers, agents and employees, each person who controls the Company and OPCO
(within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act), and the directors, officers, agents or employees of such
controlling persons, from and against all Losses arising out of or based upon
any untrue statement of a material fact contained in any Registration
Statement, Prospectus or preliminary prospectus or arising out of or based upon
any omission of a material fact required to be stated therein or necessary to
make the statements therein not misleading, to the extent, but only to the
extent, that such untrue statement or omission is contained in any information
so furnished in writing by such Holder to the Company and OPCO expressly for
use in such Registration Statement, Prospectus or preliminary prospectus and
was relied upon by the Company and OPCO in the preparation of such Registration
Statement, Prospectus or preliminary prospectus. In no event will the
liability of any selling Holder hereunder be greater in amount than the dollar
amount of the proceeds (net of payment of all expenses) received by such Holder
upon the sale of the Registrable Securities giving rise to such indemnification
obligation.
(c) Conduct of Indemnification Proceedings. If any person
shall become entitled to indemnity hereunder (an "indemnified party"), such
indemnified party shall give prompt notice to the party from which such
indemnity is sought (the "indemnifying party") of any claim or of the
commencement of any action or proceeding with respect to which such indemnified
party seeks indemnification or contribution pursuant hereto; provided, however,
that the failure to so notify the indemnifying party will not relieve the
indemnifying party from any obligation or liability except to the extent that
the indemnifying party has been prejudiced materially by such failure. All
fees and expenses (including any fees and expenses incurred in connection with
investigating or preparing to defend such action or proceeding) will be paid to
the indemnified party, as incurred, within five calendar days of written notice
thereof to the indemnifying party (regardless of whether it is ultimately
determined that an indemnified party is not entitled to indemnification
hereunder). The indemnifying party will not consent to entry of any judgment
or enter into any settlement or otherwise seek to terminate any action or
proceeding in which any indemnified party is or could be a party and as to
which indemnification or contribution could be sought by such indemnified party
under this Section 6, unless such judgment, settlement or other termination
includes as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release, in form and substance
satisfactory to the indemnified party, from all liability in respect of such
claim or litigation for which such indemnified party would be entitled to
indemnification hereunder.
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(d) Contribution. If the indemnification provided for in this
Section 6 is unavailable to an indemnified party under Section 6(a) or 6(b)
hereof in respect of any Losses or is insufficient to hold such indemnified
party harmless, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, will, severally but not jointly,
contribute to the amount paid or payable by such indemnified party as a result
of such Losses, in such proportion as is appropriate to reflect the relative
fault of the indemnifying party or indemnifying parties, on the one hand, and
such indemnified party, on the other hand, in connection with the actions,
statements or omissions that resulted in such Losses as well as any other
relevant equitable considerations. The relative fault of such indemnifying
party or indemnifying parties, on the one hand, and such indemnified party, on
the other hand, will be determined by reference to, among other things, whether
any action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission of a material fact, has been
taken or made by, or related to information supplied by, such indemnifying
party or indemnified party, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such action, statement or
omission. The amount paid or payable by a party as a result of any Losses will
be deemed to include any legal or other fees or expenses incurred by such party
in connection with any action or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 6(d), an
indemnifying party that is a selling Holder will not be required to contribute
any amount in excess of the amount by which the total price at which the
Registrable Securities sold by such indemnifying party and distributed to the
public were offered to the public exceeds the amount of any damages which such
indemnifying party has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
The indemnity, contribution and expense reimbursement obligations of the
Company and OPCO hereunder will be in addition to any liability the Company or
OPCO may otherwise have hereunder or otherwise. The provisions of this Section
8 will survive so long as Registrable Securities remain outstanding,
notwithstanding any permitted transfer of the Registrable Securities by any
Holder thereof or any termination of this Agreement.
7. Miscellaneous.
(a) Remedies. In the event of a breach by the Company and
OPCO of their obligations under this Agreement, each Holder, in addition to
being entitled to exercise all rights granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement. The Company and OPCO agree that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by them of
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any provision of this Agreement and hereby further agree that, in the event of
any action for specific performance in respect of such breach, they will waive
the defense that a remedy at law would be adequate.
(b) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented without the prior written consent
of the Company and OPCO, and Holders holding in excess of 50% of the
Registrable Securities and Unpaired Shares in respect of which Registrable
Securities are issuable.
(c) Notices. Except as set forth below, all notices and other
communications provided for or permitted hereunder shall be in writing and
shall be deemed to have been duly given if delivered personally or sent by
telex or telecopier, registered or certified mail (return receipt requested),
postage prepaid or courier or overnight delivery service to the Company and
OPCO at the following address and to a Holder c/o William P. Hallman, Suite
3200, Texas Commerce Bank Tower, 201 Main Street, Fort Worth, Texas 76102 (or
at such other address for any party as shall be specified by like notice,
provided that notices of a change of address shall be effective only upon
receipt thereof):
If to the Company: Meditrust Corporation
197 First Avenue
Needham, MA 02194
and if to OPCO Meditrust Operating Company
197 First Avenue
Needham, MA 02194
With a copy in either case to:
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 02109
Attn: Gilbert G. Menna, P.C. and
Stephen W. Carr, P.C.
Telecopy: (617) 523-1231
(d) Successors and Assigns. This Agreement will inure to the
benefit of and be binding upon the successors and assigns of the Company and
OPCO. This Agreement may not be assigned by any Holder, except to a
constituent partner or shareholder of such Holder which is an accredited
investor, unless the proposed transferee or assignee of such Holder (a "Holder
Transferee") agrees in a writing reasonably acceptable to the Company and OPCO
to be bound by the terms of this Agreement. Except as otherwise expressly
permitted herein, any attempted assignment hereof by any Holder will be void
and of no effect and shall terminate all obligations of
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the Company and OPCO with respect to such Holder. Notwithstanding the
foregoing, each of the indemnified parties shall be entitled to enforce the
covenants set forth in Section 6 hereof.
(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 will be deemed to be an original and all of which
taken together will constitute one and the same instrument.
(f) Headings. The headings in this Agreement are for
convenience of reference only and will not limit or otherwise affect the
meaning hereof.
(g) Governing Law. This agreement will be governed by and
construed in accordance with the laws of the State of Delaware, as applied to
contracts made and performed within the State of Delaware, without regard to
principles of conflict of laws.
(h) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein will remain in full force and
effect and will in no way be affected, impaired or invalidated, and the parties
hereto will use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such
which may be hereafter declared invalid, void or unenforceable.
(i) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be the
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein, with respect to such subject matter.
(j) Attorneys' Fees. In any action or proceeding brought to
enforce any provision of this Agreement, or where any provision hereof is
validly asserted as a defense, the prevailing party, as determined by the
court, will be entitled to recover reasonable attorneys' fees in addition to
any other available remedy.
(k) Rule 144. The Company shall use reasonable efforts to
comply with the public information requirements of Rule 144(c) under the
Securities Act for a period of at least two (2) years following the Effective
Date.
(l) Effectiveness. Notwithstanding anything herein to the
contrary, this Agreement shall become effective only when and if the Merger
becomes effective.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
MEDITRUST CORPORATION
By:/s/ DAVID F. BENSON
--------------------------------
Name: David F. Benson
Title: President
MEDITRUST OPERATING COMPANY
By:/s/ MICHAEL J. BOHNEN
--------------------------------
Name: Michael J. Bohnen
Title: Secretary
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THOMAS M. TAYLOR & CO.
By: /s/ W.P. HALLMAN, JR.
--------------------------------
Name: W.P. Hallman, Jr.
Title: Vice President
SID R. BASS, INC.
By: /s/ W.P. HALLMAN, JR.
--------------------------------
Name: W.P. Hallman, Jr.
Title: Vice President
LEE M. BASS, INC.
By: /s/ W.P. HALLMAN, JR.
--------------------------------
Name: W.P. Hallman, Jr.
Title: Vice President
THE BASS MANAGEMENT TRUST
By: /s/ W.P. HALLMAN
--------------------------------
Perry R. Bass, Trustee,
by W.P. Hallman, Attorney-in-fact
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THE AIRLIE GROUP, L.P.
By: EBD, L.P., General Partner,
By: TMT-FW Inc.,
By: /s/ W.P. HALLMAN, JR.
--------------------------------
W.P. Hallman, Jr.
Vice President
/s/ WILLIAM P. HALLMAN, JR.
--------------------------------
William P. Hallman, Jr.
ANNIE R. BASS GRANDSON'S TRUST FOR
LEE M. BASS
By: /s/ WILLIAM P. HALLMAN, JR.
--------------------------------
William P. Hallman, Jr., trustee
ANNIE R. BASS GRANDSON'S TRUST FOR
SID R. BASS
By: /s/ WILLIAM P. HALLMAN, JR.
--------------------------------
William P. Hallman, Jr., Trustee
PETER STERLING
/s/ PETER STERLING
-------------------------------------
Peter Sterling
GARY L. MEAD
/s/ GARY L. MEAD
-------------------------------------
Gary L. Mead
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HYATT ANNE BASS SUCCESSOR TRUST
By: Panther City Investment Co., Trustee
By: /s/ W.P. HALLMAN JR.
-------------------------------
W.P. Hallman Jr.,
Vice President
SAMANTHA SIMS BASS SUCCESSOR TRUST
By: Panther City Investment Co., Trustee
By: /s/ W.P. HALLMAN JR.
-------------------------------
W.P. Hallman Jr.,
Vice President
PORTFOLIO C INVESTORS, L.P.
By: Portfolio Associates, Inc.,
General Partner
By: /s/ W.P. HALLMAN JR.
-------------------------------
W.P. Hallman Jr.,
Vice President
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