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OPERATING AGREEMENT
OPERATING AGREEMENT, dated as of January __, 1997, between
Lexington Corporate Properties, Inc., a Maryland corporation (the "Company"),
and Five Arrows Realty Securities L.L.C., a limited liability company organized
under the laws of the State of Delaware (the "Investor"), for the benefit of the
Investor and any Holder (as hereinafter defined).
This Agreement is executed pursuant to the Investment
Agreement, dated as of December 31, 1996, between the Company and the Investor
(the "Investment Agreement"). In order to induce the Investor to enter into the
Investment Agreement, the Company has agreed to provide the registration rights
set forth in this Agreement.
The parties hereby agree as follows:
1. DEFINITIONS. The following terms shall have the meanings
set forth below:
"Affiliate" means, with respect to any Person, (a) any member
of the Immediate Family of such Person or a trust established for the
benefit of such member, (b) any beneficiary of a trust described in
(a), (c) any Entity which, directly or indirectly though one or more
intermediaries, is deemed to be the beneficial owner of 10% or more of
the voting equity of the Person for the purposes of Section 13(d) of
the Exchange Act, (d) any officer of the Person or any member of the
Board of Directors of the Person or (e) any Entity which, directly or
indirectly through one or more intermediaries, controls, is controlled
by, or is under common control with, such Person, including such Person
or Persons referred to in the preceding clauses (a) or (d); provided,
however, that none of the Investor, Rothschild Realty Inc. or their
respective Affiliates, nor any of their respective officers, directors,
partners, or members nor a Preferred Director (as such term is defined
in the Certificate of Designation) shall be considered an Affiliate of
the Company or any of its Subsidiaries for the purposes of this
Agreement.
"Business Day" means any Monday, Tuesday, Wednesday, Thursday
or Friday which is not a day on which banking institutions in New York
City are authorized or obligated by law or executive order to close.
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"Certificate of Designation" means the Articles
Supplementary classifying 2,000,000 shares of preferred stock as
Class A Senior Cumulative Convertible Preferred Stock of the
Company, and 2,000,000 shares of Excess Stock, par value $.01 per
share, as Excess Class A Preferred Stock of the Company.
"Commission" means the Securities and Exchange Commission
or any successor regulatory authority responsible for enforcement
and oversight of the federal securities laws.
"Common Stock" means the Common Stock, par value $.01 per
share of the Company.
"Entity" means any general partnership, limited
partnership, corporation, joint venture, trust, business trust,
real estate investment trust, limited liability company,
cooperative or association.
"equity security" means common stock, preferred stock and
any other security that is treated as an equity security either
under the Exchange Act or under generally accepted accounting
principles by the issuer thereof or any other security convertible
into, exercisable into, or exchangeable for any equity security.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended.
"Governmental Body" means any foreign, federal, state,
municipal or other government, or any department, commission,
investigative body, board, bureau, agency, public authority or
instrumentality thereof or any court, mediator, arbitrator or
other tribunal.
"Holders" and "Holders" means a Person or Persons who is,
or are, the owner of record of Registrable Securities.
"Immediate Family" means, with respect to any Person, such
Person's spouse, parents, parents-in-law, descendants, nephews,
nieces, brothers, sisters, brothers-in-law, sisters-in-law,
stepchildren, sons-in- law and daughters-in-law.
"Majority Holders" means (a) the Investor, so long as the
Investor holds at least 25% of the outstanding Registrable
Securities and (b) otherwise, the Holder or
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Holders at the relevant time (excluding the Company or any of its
Subsidiaries) of more than 50% of the Registrable Securities then
outstanding.
"Person" means any individual or Entity.
"Preferred Shares" means the Class A Senior Cumulative
Convertible Preferred Stock issued by the Company to the Investor,
pursuant to the Investment Agreement.
"Prospectus" means the Prospectus included in any
Registration Statement, 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 in such Prospectus.
"Registrable Securities" means (i) all Preferred Shares
and all shares of Common Stock that have been issued, or are
issuable on conversion, in respect of the Preferred Shares
pursuant to the provisions of Section 7 of the Certificate of
Designation of the Company, dated the date hereof, (ii) any other
securities that are received by the Holders pursuant to Section 7
of the Certificate of Designation, and (iii) any other securities
into which or for which any of the securities described in clauses
(i) and (ii) above may be or have been converted or exchanged
pursuant to a plan of recapitalization, reorganization, merger,
sale of assets or otherwise, until such time as (a) they have been
effectively registered pursuant to this Agreement and sold under
the Securities Act, or (b) they are distributed to the public
pursuant to Rule 144 (or any similar provisions then in force)
under the Securities Act and are not subject to any stop transfer
order delivered by or on behalf of the Company and no other
restriction on transfer exists under any federal securities law.
"Registration Statement" means any registration statement
of the Company which covers any of the Registrable Securities
pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such Registration
Statement, including post-effective amendments, all exhibits and
all material incorporated by reference in such Registration
Statement.
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"Securities Act" means the Securities Act of 1933, as
amended, or any successor federal statute, and the rules and
regulations of the Commission thereunder, all as the same shall be
in effect at the time.
"Underwriters Maximum Number" means for any underwritten
Demand Registration, Piggyback Registration or other registration,
that number of shares of securities to which such registration
should, in the written opinion of the managing underwriter or
underwriters of such registration in light of market factors, be
limited.
"underwritten registration" or "underwritten offering"
means a registration in which securities of the Company are sold
to an underwriter for reoffering to the public.
2. DEMAND REGISTRATION
2.1 Right to Demand Registration. (a) Subject to
Section 2.5 and Section 10.6 of the Investment Agreement, at any time, any
Holder or Holders holding an aggregate of not less than 20% of the Registrable
Securities then outstanding (the "Demand Requesting Holders") may make a written
request to the Company for registration with the Commission (a "Demand
Registration") under and in accordance with the provisions of the Securities Act
of all or part of its Registrable Securities; provided, however, that the
Company (i) shall be required to effect no more than one such Demand
Registration pursuant to this Section 2 (other than the "shelf" registration
provided for under Section 2.1(c)) and (ii) shall not be required to effect a
Demand Registration if less than $5 million in market value of Registrable
Securities would be registered. The Shelf Registration (as defined under Section
2.1(c) shall qualify as the Demand Registration to which the Holders are
entitled hereunder if the Shelf Registration (i) subject to Section 2.5, is
maintained effective continuously for a three (3) year period or until all such
shares have been distributed thereunder and (ii) contemplates distributions
through at least one underwritten offering in which the Holders have exclusive
priority as to the inclusion of Registrable Securities.
(b) Each Demand Registration shall be in the form of
an underwritten offering managed by an underwriter or underwriters selected by
the Company.
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(c) At the election of the Majority Holders (in their
sole discretion), the Company shall promptly file with the Commission a "shelf"
registration statement with respect to all of their Registrable Shares, on an
appropriate Form, pursuant to Rule 415 under the Securities Act or any similar
rule that may be adopted by the Commission (the "Shelf Registration"). The
Company shall use its reasonable best efforts to have the Shelf Registration
declared effective as soon as practicable after such filing and, notwithstanding
anything to the contrary herein, shall use reasonable best efforts to keep the
Shelf Registration continuously effective for a period of three years from the
date such Shelf Registration is declared effective (to the extent permitted by
the Commission) or until all shares registered on such "shelf" registration
statement have been sold. Such "shelf" registration may provide for
distributions other than through underwritten offerings. Any Holder shall be
required to comply with the rules of the New York Stock Exchange or any other
stock exchange on which the Common Stock is then listed. In no event shall the
Company be required to file more than one Shelf Registration Statement at the
request of the Majority Holders.
(d) Within ten days after receipt of any request by
the Demand Requesting Holders under Section 2.1(a) or the Majority Holders under
Section 2.1(c), the Company will give written notice (the "Other Holders
Notice") of such registration request to all other Holders, if any, and, subject
to Section 2.3, shall include in such registration all Registrable Securities
with respect to which the Company has received written requests for inclusion
therein from the Holders thereof within 15 days after such notice by the
Company.
2.2 Effective Registration and Expenses. A registration will
qualify as a Demand Registration or a Shelf Registration when it has become
effective; provided, however, that (i) if the Demand Requesting Holders with
regard to a Demand Registration, or the Majority Holders with regard to a Shelf
Registration, withdraw their Registrable Securities after the filing with the
Commission of the initial Registration Statement related thereto, such demand
will count as a Demand Registration or a Shelf Registration unless such Demand
Requesting Holders or Majority Holders, as the case may be, agree severally to
pay all of the Registration Expenses of the Company incurred through the date
that notice of such withdrawal is given and (ii) an effective Demand
Registration will not count as the sole Demand Registration if the Demand
Requesting Holders have not been permitted to register and
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sell all of the Registrable Securities requested to be included in such
registration by such Demand Requesting Holders.
2.3 Priority on Underwritten Demand Registrations. Subject to
the rights granted pursuant to the agreements set forth on Schedule 10.2 or as
otherwise contemplated by Section 4.1(b), if the managing underwriter or
underwriters of any underwritten Demand Registration advise the Company and the
Holders in writing of an Underwriters Maximum Number, the Company will be
obligated and required to include in such registration (i) first, the
Registrable Securities requested to be included in such Demand Registration by
the Holders, pro rata in proportion to the number of Registrable Securities
requested to be included in such registration by each of them until all such
Registrable Securities have been so included, (ii) second, the Registrable
Securities requested to be included in such Demand Registration by the Company
and other Persons having contractual rights thereto, in accordance with the
priorities that exist among them, and (iii) third, any other securities of the
Company to be registered on behalf of any other Person. Neither the Company nor
any of its securityholders (other than Holders of Registrable Securities) shall
be entitled to include any securities in any Demand Registration unless the
Company or such securityholders (as the case may be) shall have agreed in
writing to sell such securities on the same terms and conditions as shall apply
to the Registrable Securities to be included in such Demand Registration.
2.4 Selection of Underwriters. The managing underwriter and
any additional investment bankers and managers for use in connection with any
underwritten Demand Registration will be selected by the Company from a list of
five choices provided by the Investor; provided, that the Investor shall be
required to select such five firms from the list attached hereto as Schedule
2.4; provided, further, that in the event the Company desires to make a
selection other than from the list of five choices provided by the Investor, the
Investor shall have the right to approve such selection, which approval shall
not be unreasonably withheld.
2.5 Limitations Regarding Registration at the Request of
Holders. (a) The Company shall not be required to effect a Demand Registration
or a Shelf Registration under Section 2.1 and the Holders of Registrable
Securities will discontinue the disposition of their securities covered by a
Shelf Registration during any Blackout Period (as defined below) (i) if the
Board of Directors of the Company determines
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in good faith that effecting such a registration or continuing such disposition
at such time would have a material adverse effect upon a proposed sale of all
(or substantially all) of the assets of the Company or a merger, reorganization,
recapitalization or similar current transaction materially affecting the capital
structure or equity ownership of the Company, (ii) if the Company is in
possession of material information which the Board of Directors of the Company
determines in good faith it is not in the best interests of the Company to
disclose in a registration statement at such time, or (iii) if the Company has
delivered a notice pursuant to Section 3.1 that it is undertaking an
underwritten offering in which the Holders will be entitled to exercise their
piggyback rights; provided, however, that the Company may only delay a Demand
Registration or the filing of a new Shelf Registration pursuant to this Section
2.5 by delivery of a Blackout Notice (as defined below) within thirty (30) days
of delivery of the notice requesting a Demand Registration or such new Shelf
Registration and, in any case, only for a period not exceeding three (3) months
(or until such earlier time as such transaction is consummated or no longer
proposed or the material information has been made public) (the "Blackout
Period"). There shall not be more than one Blackout Period in any twelve (12)
month period.
(b) The Company shall promptly notify the Holders in
writing (a "Blackout Notice") of any decision not to effect a Demand
Registration or a Shelf Registration or to discontinue sales of Registrable
Securities pursuant to this Section 2.5, which notice shall set forth the reason
for such decision (but not disclosing any nonpublic material information) and
shall include an undertaking by the Company promptly to notify the Holders as
soon as a Demand Registration or a Shelf Registration may be effected or sales
may resume.
(c) The Company shall not be required to effect a
Demand Registration or Shelf Registration under Section 2.1 during any period
the Company is restricted from filing a registration statement or from making
any public sale or distribution of its equity securities pursuant to any
agreement on Schedule 10.2 or as contemplated by Section 4.1(b).
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3. PIGGYBACK REGISTRATION
3.1 Right to Include Registrable Securities. Subject to
Section 3.3, if the Company or any other issuer of Registrable Securities at any
time or from time to time proposes to register shares of its equity securities
or Registrable Securities under the Securities Act (other than in a registration
on Form S-4 or S-8 or any successor form to such forms or in connection with an
exchange offer or an offering of securities solely to the existing stockholders
or employees of the Company and other than in connection with a "roll-up" of
partnerships which are Affiliates of the Company), whether or not for sale for
its own account, the Company shall deliver prompt written notice to all Holders
of Registrable Securities of its intention to undertake such registration and of
such Holders' rights to participate in such registration under this Section 3 as
hereinafter provided. The Company shall use its reasonable best efforts to
effect the registration under the Securities Act of all Registrable Securities
with respect to which the Company receives a request for registration from the
Holders thereof by written notice to the Company within 30 days after the date
of the Company's notice to Holders of its intended registration (which notice by
Holders shall specify the amount of Registrable Securities to be registered and
the intended method of disposition thereof), to the extent necessary to permit
the disposition in accordance with the intended methods thereof of all such
Registrable Securities by including such Registrable Securities in the
registration statement pursuant to which the Company proposes to register the
shares of Common Stock (a "Piggyback Registration"); provided, however, that if
such registration involves an underwritten offering, all Holders requesting
inclusion in the registration shall be required to sell their Registrable
Securities to the underwriters selected by the Company at the same price and on
the same terms of underwriting applicable to the Company and any other Persons
selling shares of Common Stock. The Holders requesting inclusion in a
registration pursuant to this Section 3 may, at any time prior to the effective
date of the registration statement relating to such registration, revoke such
request by delivering written notice to the Company revoking such requested
inclusion. All requests for Piggyback Registration under this Section 3 shall be
without prejudice to the rights of the Holders to request, and shall not be
counted, as the sole Demand Registration or Shelf Registration under Section 2
above.
3.2 Priority in Piggyback Registration. Subject to any rights
granted pursuant to the agreements set forth on
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Schedule 10.2 or contemplated by Section 4.1(b), if any of the Registrable
Securities registered pursuant to any Piggyback Registration are to be sold in
one or more firm commitment underwritten offerings, and the managing
underwriters advise in writing the Company and the Holders of such Registrable
Securities of an Underwriters Maximum Number, or, in the case of a Piggyback
Registration not being underwritten, the Company shall reasonably determine (and
notify the Holders of Registrable Securities of such determination), after
consultation with an investment banker of nationally recognized standing, that
the number of shares of Common Stock (including Registrable Securities) proposed
to be sold in such offering exceeds the number of shares of Common Stock which
can be sold in such offering within a price range acceptable to the Company, the
Company shall include in such registration only such number of shares of Common
Stock (including Registrable Securities) which in the opinion of such
underwriter or underwriters or the Company, as the case may be, can be sold
within such price range, selected in the following order of priority: (i) first,
all of the shares of Common Stock that the Company proposes to register (but
solely to the extent that the proceeds thereof shall not be used to purchase
Common Stock or other securities of the Company or any subsidiary operating
partnership), and the shares requested by any other Person having demand
registration rights and having made demand for the subject registration, (ii)
second, the Registrable Securities requested to be included in such registration
by Holders that have requested their Registrable Securities to be included
therein, pro rata in proportion to the number of Registrable Securities
requested to be included in such registration by each of them, (iii) third,
other Registrable Securities requested to be included in such registration by
any other Persons, and (iv) fourth, other securities of the Company to be
registered on behalf of any other Person.
3.3. Limitations Regarding Piggyback Registrations. If the
Company, at any time after giving written notice under Section 3.1 of its
intention to register Common Stock and prior to the effectiveness of the
registration statement filed in connection with such registration, determines
for any reason consistent herewith either not to effect such registration or to
delay such registration, the Company may, at its election, by the delivery of
written notice to each Holder, (i) in the case of a determination not to effect
registration, relieve itself of its obligation to register the Registrable
Securities in connection with such registration, or (ii) in the case of a
determination to delay the registration, delay the registration of such
Registrable
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Securities for the same period as the delay in the registration of such other
shares of Common Stock.
4. HOLD-BACK AGREEMENTS
4.1 Restrictions on Public Sale by Holder of Registrable
Securities. (a) Each Holder of Registrable Securities agrees, if requested by
the managing underwriter or underwriters in an underwritten offering of any
Registrable Securities, not to effect any public sale or distribution or any
other sale pursuant to the exemption from the registration requirements of the
Securities Act, of its remaining equity securities of the Company, including a
sale pursuant to Rule 144 (or any similar provision then in force) under the
Securities Act (except as part of such underwritten registration), during the
14-day period prior to, and during the 90-day period (or such shorter period as
may be agreed to by the parties hereto) beginning on, the effective date of such
Registration Statement, to the extent timely notified in writing by the Company
or the managing underwriter or underwriters, unless the underwriters managing
the registered offering and the Company otherwise agree.
(b) Each Holder of Registrable Securities agrees by
acquisition of such Registrable Securities not to effect any public sale or
distribution or any other sale pursuant to any exemption from the registration
requirements of the Securities Act of any equity securities of the Company,
including a sale pursuant to Rule 144 (or any similar provision then in force)
under the Securities Act (except as part of such underwritten registration),
during the period that a holder of securities registrable under any of the
agreements set forth on Schedule 10.2 or any agreement entered into in
accordance with the terms provided pursuant to Section 4.2(ii) hereunder is
prohibited from making any such sale or distribution as a result of a
underwritten public offering pursuant to such agreement.
4.2 Restriction on Public Sale by the Company. The Company
agrees (i) not to effect any public sale or distribution of any of its equity
securities (for its own account or the account of any third party) during the
14-day period prior to, and during the 90-day period beginning on, the effective
date of a Registration Statement filed pursuant to underwritten offering under
Section 2 or Section 3 or such longer periods as may be required in the
reasonable judgment of the managing underwriter or underwriters (except as part
of such underwritten registration or pursuant to registrations on Forms S-4 or
S-8 or any successor form to such forms or in
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connection with an exchange offer or an offering of securities solely to the
existing stockholders or employees of the Company or upon conversion of
outstanding securities), and (ii) that it will cause each holder of equity
securities of the Company purchased from the Company at any time after the date
of this Agreement (other than in a registered public offering) who as a result
of such purchase, owns more than 5% of the Common Stock on a fully diluted
basis, to agree not to effect any public sale or distribution or any other sale
pursuant to the exemption from the registration requirements of the Securities
Act available for private placements, of any such securities during such period,
including a sale pursuant to Rule 144 under the Securities Act (except as part
of such underwritten registration, if permitted).
5. REGISTRATION PROCEDURES
Upon the Company incurring registration obligations
under Section 2 or 3 and subject thereto, the Company will use its reasonable
best efforts to effect such registrations to permit the sale of such Registrable
Securities in accordance with the intended method or methods of distribution
thereof, and pursuant thereto the Company will, at its expense, as expeditiously
as reasonably possible:
(a) prepare and file with the Commission a
Registration Statement relating to such registration on any appropriate form
under the Securities Act, which form shall be available for the sale of the
Registrable Securities by the Holders thereof in accordance with the intended
method or methods of distribution thereof, and use its reasonable best efforts
to cause such Registration Statement to become effective; provided, however,
that before filing a Registration Statement or Prospectus, the Company will
furnish to the Holders of the Registrable Securities covered by such
Registration Statement, their counsel and the underwriters, if any, copies of
all such documents proposed to be filed sufficiently in advance of filing to
provide them with a reasonable opportunity to review such documents and comment
thereon;
(b) prepare and file with the Commission such
amendments and post-effective amendments to a Registration Statement as may be
necessary to keep such Registration Statement effective for a period of not less
than 180 days (or such shorter period which shall terminate when all Registrable
Securities covered by such Registration Statement have been sold or withdrawn,
but not prior to the expiration of the 90-day period referred to in Section
4(3) of the Securities Act
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and Rule 174 thereunder, if applicable); cause the related Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 under the Securities Act; and comply with the
provisions of the Securities Act applicable to it 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 or supplement to such
Prospectus;
(c) notify each Holder of Registrable Securities
included in the Registration Statement, their counsel and the managing
underwriters, if any, at any time when a Prospectus relating thereto is required
to be delivered under the Securities Act, promptly, and (if requested by any
such Person) confirm such notice in writing, (1) 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, (2) of any request by the Commission for amendments
or supplements to a Registration Statement or related Prospectus or for
additional information, (3) of the issuance by the Commission of any stop order
suspending the effectiveness of a Registration Statement or the initiation of
any proceedings for that purpose, (4) if at any time the representations and
warranties of the Company contained in agreements contemplated by Section 5(n)
cease to be true and correct in all material respects, (5) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of any of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, (6) of the
happening of any event as a result of which the Prospectus included in the
Registration Statement (as then in effect) 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 the case of the Prospectus or
any preliminary Prospectus, in light of the circumstances under which they were
made) not misleading and (7) of the Company's reasonable determination that a
post-effective amendment to a Registration Statement would be appropriate or
that there exist circumstances not yet disclosed to the public which make
further sales under such Registration Statement inadvisable pending such
disclosure and post-effective amendment;
(d) at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, upon the occurrence of any
event contemplated by Section
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5(c)(2)-(7), prepare a supplement or post-effective amendment to the
Registration Statement or 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,
which Prospectus will not contain an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein not
misleading in light of the circumstances under which they were made;
(e) use reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of the Registration
Statement, or the lifting of any suspension of the qualification of any of the
Registrable Securities for sale in any jurisdiction required pursuant to Section
5(i), as soon as reasonably possible;
(f) if requested by a managing underwriter or any
Holder of Registrable Securities, immediately incorporate in a prospectus
supplement or post-effective amendment such information concerning such Holder
of Registrable Securities, the managing underwriter or underwriters or the
intended method of distribution as the managing underwriter or underwriters or
the Holder of Registrable Securities reasonably requests to be included therein
and as is appropriate in the reasonable judgment of the Company, including,
without limitation, information with respect to the number of shares of the
Registrable Securities being sold to such underwriter or underwriters, the
purchase price being paid therefor by such underwriter or underwriters and with
respect to any other terms of the underwritten (or best efforts underwritten)
offering of the Registrable Securities to be sold in such offering; make all
required filings of such Prospectus supplement or post-effective amendment as
soon as notified of the matters to be incorporated in such Prospectus supplement
or post-effective amendment;
(g) furnish to each Holder of Registrable Securities
included in such Registration Statement and each managing underwriter, if any,
without charge, one copy of the Registration Statement and any post-effective
amendments thereto, including financial statements and schedules, and, upon
request, all documents incorporated therein by reference and all exhibits
(including those incorporated by reference);
(h) deliver to each Holder of Registrable Securities
included in such Registration Statement, their counsel and the underwriters, if
any, without charge, as many copies of the Prospectus or Prospectuses (including
each
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preliminary Prospectus) and any amendment or supplement thereto as such Persons
may reasonably request; the Company consents to the use of such Prospectus or
any amendment or supplement thereto by each Holder of Registrable Securities
included in the Registration Statement and the underwriters, if any, in
connection with the offering and sale of the Registrable Securities covered by
such Prospectus or any amendment or supplement thereto;
(i) prior to any public offering of Registrable
Securities use its reasonable best efforts to register or qualify, or cooperate
with the Holders of Registrable Securities included in the Registration
Statement, the underwriters, if any, and their respective counsel in connection
with the registration or qualification of, such Registrable Securities for offer
and sale under the securities or blue sky laws of such jurisdictions as any
Holder or underwriter reasonably requests in writing; use its reasonable best
efforts to keep each such registration or qualification effective, including
through new filings or amendments or renewals, during the period such
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 such
jurisdictions of the Registrable Securities covered by the applicable
Registration Statement; provided, however, that the Company will not be required
to qualify to do business or take any action that would subject it to taxation
or general service of process in any jurisdiction where it is not then so
qualified or subject;
(j) cooperate with the Holders of Registrable
Securities included in the Registration Statement and the managing underwriter
or underwriters, if any, to facilitate, at the election of the Majority Holders,
(x) the timely preparation and delivery of certificates (not bearing any
restrictive legends) representing Registrable Securities to be sold under the
Registration Statement or (y) the timely transfer of beneficial ownership of
such Registrable Securities in machine book-entry fashion under the auspices of
The Depository Trust Company or other similar organization; and cause such
Registrable Securities to be in such denominations and registered in such names
as the managing underwriter or underwriters, if any, or such Holders may request
at least two business days prior to any sale of Registrable Securities;
(k) use its reasonable best efforts to cause the
Registrable Securities covered by the Registration Statement to be registered
with or approved by such Governmental Bodies consistent with the provisions of
Section
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5(i) as may be necessary to enable the seller or sellers thereof or the managing
underwriter or underwriters, if any, to consummate the disposition of such
Registrable Securities;
(l) cause all Registrable Securities included in such
Registration Statement to be (1) listed, by the date of first sale of
Registrable Securities pursuant to such Registration Statement, on each
securities exchange on which the Common Stock is then listed or proposed to be
listed thereon, if any, or (2) quoted on the National Association of Securities
Dealers Automated Quotation System ("NASDAQ") or the National Market System of
NASDAQ if the Common Stock is then quoted thereon; provided, however, that the
Company shall not be required to effect the listing of any Preferred Shares on
or prior to January 1, 1999 pursuant to this Section 5(l) and this Section 5(l)
shall, in any event, cease to be applicable to the Preferred Shares after the
last to occur of the following: (1) the aggregate Current Market Value (as
defined in the Articles Supplementary governing the Preferred Shares), as of any
date, of the Common Stock is at least $250 million and (2) the Common Stock into
which the Preferred Shares are convertible represent less than 10% of the Common
Stock after taking into account all securities of the Company (other than
operating partnership units) which at the time of any such determination are
then currently convertible or exercisable into or exchangeable for Common Stock
without any restrictions and are then "in the money." "In the money" means that
the conversion or exercise price or exchange ratio, as applicable, provides for
conversion or exercise at a price, or exchange at a ratio, that is less than the
then Current Market Value (as defined in the Certificate of Designation) of the
Common Stock.
(m) provide a transfer agent and registrar for the
Registrable Securities not later than the effective date of such Registration
Statement;
(n) enter into such agreements and take all such
other reasonable actions in connection therewith in order to expedite or
facilitate the disposition of such Registrable Securities and in such
connection, in the case of an underwritten offering, (1) enter into an
underwriting agreement in form, scope and substance as is customary in
underwritten offerings by such underwriter and use its reasonable best efforts
to 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 underwriter or underwriters) addressed to each selling Holder and
the underwriters, if any, covering the
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matters customarily covered in opinions requested in underwritten offerings and
such other related matters as may be reasonably requested by such Holders and
underwriters, (2) use its reasonable best efforts to obtain a "cold comfort"
letter and updates thereof from the Company's independent certified public
accountants addressed to each Holder of Registrable Securities included in the
Registration Statement (to the extent permitted by applicable accounting
standards) and the underwriters, if any, such letters to be in customary form
and covering matters of the type customarily covered in "cold comfort" letters
given by accountants in connection with underwritten offerings, (3) the
underwriting agreement shall set forth in full the indemnification provisions
and procedures of Section 7 with respect to all parties to be indemnified
pursuant to said Section (or such other indemnification provisions as the
underwriter may request and which is reasonably acceptable to the Holders
included in such registration), and (4) the Company shall deliver such documents
and certificates as may be reasonably requested by the managing underwriter or
underwriters, if any, to evidence compliance with any customary conditions
contained in the underwriting agreement or other agreement entered into by the
Company. The above shall be done at each closing under such underwriting or
similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative
of the Holders of Registrable Securities included in the Registration Statement,
any underwriter participating in any disposition pursuant to such Registration
Statement and any lawyer, accountant or other advisors retained by such selling
Holders or underwriter, all pertinent financial and other records, pertinent
corporate documents and properties of the Company as they may reasonably
request, and cause the Company's officers, directors and employees to supply all
information reasonably requested by any such representative, underwriter,
lawyer, accountant or other advisors in connection with such Registration
Statement, provided, however, that any records, information or documents that
are furnished by the Company and that are non-public shall be used only in
connection with such registration and shall be kept confidential by such Persons
except to the extent disclosure of such records, information or documents is
required by law; and
(p) otherwise use its reasonable best efforts to
comply with all applicable rules and regulations of the Commission and make
generally available to its security holders earnings statements satisfying the
provisions of
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Section 11(a) of the Securities Act, no later than 90 days after the end of any
12-month period (1) commencing at the end of any fiscal quarter in which
Registrable Securities are sold to underwriters in a firm or best efforts
underwritten offering and (2) beginning with the first day of the Company's
first fiscal quarter next succeeding each sale of Registrable Securities after
the effective date of a Registration Statement, which statements shall cover
said 12-month periods.
The Company may require each seller of Registrable
Securities as to which any registration is being effected to furnish promptly to
the Company such information regarding the distribution of such securities as
the Company may from time to time reasonably request in writing.
Each Holder of Registrable Securities agrees by
acquisition of such Registrable Securities that (i) such Holder will sell its
securities covered by any Registration Statement in accordance with the plan of
distribution provided for therein and (ii) upon receipt of any notice from the
Company of the happening of any event of the kind described in Section
5(c)(2)-(7), such Holder will forthwith discontinue disposition of Registrable
Securities covered by such Registration Statement or Prospectus until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(d), or until it is advised in writing by the Company
that the use of the applicable Prospectus may be resumed, and has received
copies of any additional or supplemental filings which are incorporated by
reference in such Prospectus, and, if so directed by the Company, such Holder
will, or will request the managing underwriter or underwriters, if any, to,
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such securities current at the time of receipt of such notice. In the
event the Company shall give any such notice, the time period mentioned in
Section 5(b) during which a Registration Statement is required to be kept
effective shall be extended by the number of days during the time period from
and including the date of the giving of such notice pursuant to Section 5(c) to
and including the date when each seller of Registrable Securities covered by
such Registration Statement shall have received the copies of the supplemented
or amended Prospectus contemplated by Section 5(d). The Company shall be
obligated to use its reasonable best efforts to cause such Registration
Statement and Prospectus to conform to all legal requirements and to notify the
Holders that the use of the applicable Prospectus may be resumed. Nothing in
this paragraph shall limit the
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obligations of the Company under Section 2.5 of this Agreement.
6. REGISTRATION EXPENSES
All expenses incident to the Company's performance of or
compliance with this Agreement, including, without limitation, all registration
and filing fees, fees and expense of compliance with state securities or blue
sky laws, including reasonable fees and disbursements of counsel for the
underwriters or one counsel for the selling Holders in connection with blue sky
qualifications of the Registrable Securities under the laws of such
jurisdictions as the managing underwriter or underwriters or Holders of a
majority of the shares of the Registrable Securities being sold may reasonably
designate, printing expenses, messenger, telephone and delivery expenses, and
fees and disbursements of counsel for the Company and one counsel for the
Holders and of all independent certified public accountants of the Company
(including the expenses of any special audit and "cold comfort" letters required
by or incident to such performance), and of underwriters (to the extent that the
Company and/or the selling Holders are required to bear such expense), but
excluding the following expenses none of which shall be paid by the Company:
transfer taxes, discounts, commissions or fees of underwriters, selling brokers,
dealer managers or similar securities industry professionals relating to the
distribution of the Registrable Securities, securities acts liability insurance
if the Company so desires and fees and expenses of other Persons retained by the
Company (all such expenses other than the expenses expressly excluded being
herein called "Registration Expenses") will, subject to Section 2.2, be borne by
the Company whether or not the Registration Statement becomes effective. The
Company will, in any event, pay its internal expenses (including, without
limitation, all salaries and expenses of its 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 are then listed and the fees and expenses of any Person, including
special experts, retained by the Company.
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7. INDEMNIFICATION
7.1 Indemnification by the Company. The Company agrees to
indemnify, defend, exonerate and hold harmless, to the full extent permitted by
law, each Holder of Registrable Securities registered pursuant to any
registration hereunder and each of its Affiliates or partners, each of their
respective members, officers, directors, employees, agents, representatives,
successors and assigns and each Person who controls such Holder, Affiliate or
partner (within the meaning of the Securities Act) against any and all actions,
causes of action, suits, losses, liabilities, obligations, damages,
deficiencies, demands, claims, judgments, taxes, assessments, settlement costs,
court costs and other costs and expenses, including, without limitation,
interest, penalties, fines, costs of investigation, discovery, case preparation,
defense or appeal, expert witness fees and expenses and reasonable attorneys'
and paralegal fees and disbursements (collectively, "Losses") incurred by any
such Person in any capacity and caused by any untrue statement of a material
fact contained in any Registration Statement, Prospectus or preliminary
Prospectus or any omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of a
Prospectus or any preliminary Prospectus, in the light of the circumstances
under which they were made) not misleading, except insofar as the same are
caused by or contained in any information furnished in writing to the Company by
such Holder or its representative expressly for use therein. The Company will
also indemnify underwriters, their officers and directors and each Person who
controls such Persons (within the meaning of the Securities Act) to the same
extent as provided above with respect to the indemnification of the Holders;
provided, however, that if pursuant to an underwritten public offering of
Registrable Securities, the Company and any underwriters enter into an
underwriting or purchase agreement relating to such offering which contains
provisions relating to indemnification and contribution between the Company and
such underwriters, such provisions shall be deemed to govern indemnification and
contribution as between the Company and such underwriters.
7.2 Indemnification by Holders. In connection with any
registration hereunder, each Holder participating in such registration will
promptly furnish to the Company in writing such information and affidavits with
respect to such Holder as the Company reasonably requests for use in connection
with any Registration Statement or Prospectus (limited, in each case, to such
Holder's identity, organization, domicile, securities
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of the Company held and intended method of distribution) and agrees to
indemnify, defend, exonerate and hold harmless, to the full extent permitted by
law, the Company, its directors, officers, employees, agents and representatives
and each Person who controls the Company (within the meaning of the Securities
Act) against any Losses incurred by any such Person in any capacity and caused
by any untrue statement of a material fact or any omission of a material fact
required to be stated in any Registration Statement or Prospectus or preliminary
Prospectus or necessary to make the statements therein (in the case of a
Prospectus, in the light of the circumstances under which they were made) not
misleading, to the extent, but only to the extent, that such untrue statement or
omission is contained in any information or affidavit with respect to such
Holder so furnished in writing by such Holder or its representatives to the
Company specifically for inclusion in such Registration Statement or Prospectus.
The Company shall be entitled to receive indemnities from underwriters to the
same extent as provided above with respect to information so furnished in
writing by such persons or their representatives to the Company specifically for
inclusion in any Prospectus or Registration Statement. In no event shall the
liability of any selling Holder hereunder be greater in amount than the net
dollar amount of the proceeds received by such Holder upon the sale of the
Registrable Securities giving rise to such indemnification obligation.
7.3 Conduct of Indemnification Proceedings. Any Person
entitled to indemnification hereunder will (i) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks indemnification
and (ii) permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party. Notwithstanding the
foregoing, any Person entitled to indemnification hereunder shall have the right
to employ separate counsel and to participate in the defense of such claim, but
the reasonable fees and expenses of such counsel shall be at the expense of such
Person unless (a) the indemnifying party has agreed in writing to pay such fees
or expenses, (b) the indemnifying party shall have failed to assume the defense
of such claim and employ counsel reasonably satisfactory to such Person or (c) a
conflict of interest may exist between such Person and the indemnifying party
(as confirmed in writing by counsel to such Person) or such Person is entitled
to a defense not permitted to be used by the indemnifying party with respect to
such claims (as confirmed in writing by counsel to such Person) (it being
understood that (x) in the case of each of (a), (b) and (c) above, the
reasonable fees and expenses of such separate counsel to such
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Person shall be paid by the indemnifying party and (y) in the case of (c) above,
if the Person notifies the indemnifying party in writing that such Person 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 claim
on behalf of such Person). If such defense is not assumed by the indemnifying
party, the indemnifying party will not be subject to any liability for any
settlement made without its consent (but such consent will not be unreasonably
withheld or delayed). No indemnifying party will be required to consent to entry
of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to the
indemnified party of a release from all liability in respect to such claim or
litigation. An indemnifying party who is not entitled to, or elects not to,
assume the defense of a claim will not be obligated to pay the reasonable fees
and expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim, in which event the indemnifying party shall be obligated to pay the fees
and expenses of such additional counsel or counsels. The Company may not enter
into any settlement of any claim relating to the offer and sale of Registrable
Securities that does not provide for the complete and unconditional release of
such Person.
7.4 Contribution. If the indemnification provided
for in this Section 7 from the indemnifying party is unavailable to an
indemnified party hereunder in respect of any losses, claims, damages,
liabilities or expense referred to therein, then 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 action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact, has been made by, or relates to information
supplied by, such indemnifying party or indemnified parties, and the parties'
relative intent, knowledge, access to
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information and opportunity to correct or prevent such action; provided,
however, that in no event shall the liability of any selling Holder hereunder be
greater in amount than the difference between the dollar amount of the proceeds
received by such Holder upon the sale of the Registrable Securities giving rise
to such contribution obligation and all amounts previously contributed by such
Holder with respect to such losses, claims, damages, liabilities and expenses.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include
any legal or other fees or expenses reasonably incurred by such party in
connection with any investigation or proceeding.
The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 7.4 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 the immediately
paragraph. 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.
8. COVENANTS AND UNDERTAKINGS
8.1 Rule 144. The Company will use its reasonable
best efforts to file the reports required to be filed by it under the Securities
Act and the Exchange Act and the rules and regulations adopted by the Commission
thereunder, and it will take such further action as any Holder of Registrable
Securities may reasonably request, all to the extent required from time to time
to enable such Holder to sell Registrable Securities without registration under
the Securities Act within the limitation of the exemptions provided by (a) Rule
144 under the Securities Act, as such Rule may be amended from time to time, or
(b) any similar rule or regulation hereafter adopted by the Commission. Upon the
request of any Holder of Registrable Securities, the Company will deliver to
such Holder a written statement as to whether it has complied with such
information and requirements
8.2 Reservation of Shares. The Company will
maintain as reserved those shares of Common Stock reserved in accordance with
Section 4.6 of the Investment Agreement and shall take all such action as may be
required from time to time in order that it may validly and legally issue fully
paid and non-assessable shares of Common Stock in accordance herewith and
therewith.
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8.3 Affiliate Transactions. So long as the
Investor or an Affiliate of the Investor, or one of their respective members or
partners, is the holder of either (A) all of the Preferred Shares outstanding or
(B) an amount of the voting securities of the Corporation which if converted
into shares of Common Stock would exceed 7.5% of the outstanding Common Stock on
a fully diluted basis (determined on the basis of then convertible, exercisable
or exchangeable securities, warrants or options issued by the Company), the
Company will not, and will not permit any of its Subsidiaries to, directly or
indirectly, enter into any transaction or series of transactions (including,
without limitation, the sale, purchase, exchange or lease of any assets or
properties or the rendering of any services) with any Affiliate (other than
among the Company or its Subsidiaries) (an "Affiliate Transaction") unless (i)
such transaction or series of related transactions is on terms that are no less
favorable to the Company or its Subsidiaries, as the case may be, than would
available in a comparable transaction in arm's-length dealings with an unrelated
third party and (ii) with respect to any one transaction or series of related
transactions involving aggregate payments in excess of $1,000,000, the Company
delivers a certificate, certified by an officer of the Company, to the Investor
certifying that such transaction or series of related transaction complies with
clause (i) above and such transaction or series of related transactions has
received the approval of a majority of the disinterested members of the Board of
Directors of the Company; provided, however, that such provision shall not apply
to any transaction arising out of any agreement existing on the date hereof or
any transaction in which all holders of any class or series of outstanding
capital stock of the Company have the right to participate on a pro rata basis.
8.4 Inspection Rights. So long as the Investor or
an Affiliate of the Investor, or one of their respective members or partners, is
the holder of either (A) all of the Preferred Shares outstanding or (B) an
amount of the outstanding voting securities of the Company which if converted
into shares of Common Stock would exceed 7.5% of the Common Stock on a fully
diluted basis (determined on the basis of then convertible, exercisable or
exchangeable securities, warrants or options issued by the Company), the Company
shall permit, and cause its Subsidiaries to permit, the Investor or any agents
or representatives thereof to examine and inspect the books and records of the
Company and take copies and extracts therefrom on reasonable prior notice and at
reasonable times and during normal business hours.
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8.5 Insurance for Directors. So long as the Investor
or an Affiliate of the Investor, or one of their respective members or partners,
is the holder of either (A) all of the Preferred Shares outstanding or (B) an
amount of the outstanding voting securities of the Company which if converted
into shares of Common Stock would exceed 7.5% of the Common Stock on a fully
diluted basis (determined on the basis of then convertible, exercisable or
exchangeable securities, warrants or options issued by the Company), the Company
shall obtain and maintain such directors' and officers' reimbursement and
liability insurance in the name of each Preferred Director (as such terms is
defined in the Certificate of Designation) in an amount not less than the amount
provided to other outside directors of the Company or less than the amount of
the current policy therefor; provided that such directors supply the information
required by the Company's insurance carrier and meet the qualifications
established by such carrier, if any, which shall not be more burdensome than
those of the Company's then current policy; and provided, further, that if such
insurance is a claims based or equivalent policy, each such Preferred Director
shall be entitled to such insurance for an additional six years.
8.6 Fees and Expenses. In the event that the Company
shall request that the Investor consent to any action by the Company that is
otherwise prohibited, or amend any of the Operative Instruments, the Company
shall pay all reasonable legal fees and expenses incurred by the Investor in
connection with the Investor's review of such request.
8.7 Proxy Solicitation. The Company shall include,
and recommend the approval by its shareholders of, a proposal, in its proxy
statement relating to the next annual meeting of shareholders of the Company,
approving the issuance and sale of the Preferred Shares by the Company to the
Investor. In the event that such proposal is not adopted by the shareholders,
the Company shall immediately pay to the Investor by wire transfer in
immediately available funds an amount equal to the product of (i) $0.25 and (ii)
the number of Preferred Shares which the Company is prohibited from selling to
the Investor pursuant to Section 312 of the New York Stock Exchange Listed
Company Manual.
9. EFFECTIVENESS. This Agreement shall be effective
upon the execution and delivery of a counterpart by each of the parties hereto.
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10. MISCELLANEOUS
10.1 No Adequate Remedy at Law. In the event of a
breach by the Company of its 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 agrees that monetary damages may not be
adequate compensation for any loss incurred by reason of a breach by it of any
of the provisions of this Agreement and hereby agrees to waive the defense in
any action for specific performance that a remedy at law would be adequate. The
failure to file a Registration Statement within 60 days of a written request
delivered under Section 2.1 shall constitute, in the absence of an injunction or
a Blackout Period having been imposed, a breach thereof entitling the Holders to
remedies hereunder.
10.2 No Inconsistent Agreement. (a) Except for the
registration rights contained in the agreements set forth on Schedule 10.2
hereto, the Company has not previously entered into any agreement with respect
to its capital stock granting any registration rights to any Person.
(b) The Company will not on or after the
date of this Agreement enter into any agreement with respect to its securities,
which grants registration rights to anyone so as to treat such party as having
any priority to or equal consideration with the Holders in determining
preference for inclusion in a Registration Statement prepared by the Company;
provided, however, that the Company may within six (6) months of the date hereof
enter into an agreement substantially on the terms heretofore discussed with the
Investor with Merrill Lynch Asset Management Company or an Affiliate ("Merrill")
whereby the Company grants registration rights to Merrill which are pari passu
with the Holders in determining preference for inclusion in a Registration
Statement prepared by the Company.
10.3 Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of the Majority Holders (other than Section 10.2(b) which can be
amended, modified or supplemented and waivers or consents to depart from the
provisions thereof with the written consent of the Investor). Notwithstanding
the foregoing, a waiver or consent to depart from the provisions hereof with
respect to
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a matter which relates exclusively to the rights of Holders of Registrable
Securities whose securities are being sold pursuant to a Registration Statement
and which does not directly or indirectly affect the rights of other Holders may
be given by Holders owning a majority of the shares of the Registrable
Securities being sold by such Holders, provided that the provisions of this
sentence may not be amended, modified, or supplemented except in accordance with
the provisions of the immediately preceding sentence.
10.4 Notices. Any notice or other communication
required or permitted hereunder shall be deemed to be delivered if in writing
(or in the form of a telecopy) addressed as provided below and if either (a)
actually delivered or telecopied to said address, (b) in the case of overnight
delivery of a notice, the next business day after properly posted with postage
prepaid, or (c) in the case of a letter, 3 business days shall have elapsed
after the same shall have been deposited in the United States mails, postage
prepaid and registered or certified:
If to the Company, then to Lexington Corporate Properties,
Inc., 355 Lexington Avenue, New York, New York 10017, Attention:
President, or such other address or addresses of which the
Investor shall have been given notice, with a copy to Barry A.
Brooks, Paul Hastings, Janofsky & Walker LLP, 399 Park Avenue, New
York, New York 10022.
If to any Holder of Registrable Securities, to it at its
address set forth on the books and records of the Company.
The failure to deliver a copy of any notice to any party's
counsel shall not affect the validity of such notice.
10.5 Successors and Assigns. This Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, including, without limitation, subsequent
Holders of Registrable Securities agreeing to be bound by all of the terms and
conditions of this Agreement.
10.6 Counterparts. This Agreement and any
amendments, waivers, consents or supplements may be executed in two or more
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
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constitute one and the same instrument. This Agreement shall become effective
upon the execution of a counterpart by each of the parties hereto.
10.7 Headings. Section and subsection headings in this
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose or be given any
substantive effect.
10.8 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely within such State.
10.9 Consent to Jurisdiction; Waiver of Jury Trial. (a) Any
action, suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby may be instituted in any federal court of the
Southern District of New York or any state court located in New York County,
State of New York, and each party agrees not to assert, by way of motion, as a
defense or otherwise, in any such action, suit or proceeding, any claim that it
is not subject personally to the jurisdiction of such court, that the action,
suit or proceeding is brought in an inconvenient forum, that the venue of the
action, suit or proceeding is improper or that this Agreement or the subject
matter hereof may not be enforced in or by such court. The parties irrevocably
submit to the exclusive jurisdiction of such court in any such action, suit or
proceeding. Any and all service of process and any other notice in any such
action, suit or proceeding shall be effective against any party if given
personally or by registered or certified mail, return receipt requested, or by
any other means of mail that requires a signed receipt, postage prepaid, mailed
to such party as herein provided. Nothing herein contained shall be deemed to
affect the right of any party to serve process in any manner permitted by law or
to commence legal proceedings or otherwise proceed against any other party in
any other jurisdiction to enforce judgments obtained in any action, suit or
proceeding brought pursuant to this Section 10.9.
(b) Each of the parties hereby irrevocably waives
trial by jury in any action, suit, proceeding or counterclaim, whether at law or
equity, brought by either of them in connection with this Agreement or the
transactions contemplated hereby.
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10.10 Severability. The invalidity, illegality or
unenforceability in any jurisdiction of any provision in or obligation under
this Agreement shall not affect or impair the validity, legality and
enforceability of the remaining provisions or obligations under this Agreement
or of such provision or obligation in any other jurisdiction.
10.11 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, other than the
provisions of any other documents specifically referred to herein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein, with respect to the registration rights granted by the
Company with respect to the Registrable Securities. This Agreement supersedes
all prior agreements and understandings between the parties with respect to such
subject matter.
10.12 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 successful party shall be entitled
to recover reasonable attorneys' fees in addition to its reasonable costs and
expenses and any other available remedy.
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10.13 Construction. The Company and the Investor
acknowledge that each of them has had the benefit of legal counsel of its own
choice and has been afforded an opportunity to review this Agreement with its
legal counsel and that this Agreement shall be construed as if jointly drafted
by the Company and the Investor.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
LEXINGTON CORPORATE PROPERTIES,
INC.
By:
----------------------------
Name: T. Wilson Eglin
Title: President
FIVE ARROWS REALTY SECURITIES
L.L.C.
By:
----------------------------
Name: Matthew W. Kaplan
Title: Manager
30
SCHEDULE 2.4
LIST OF UNDERWRITER CHOICES
AG Edwards
Alex Brown & Sons
Bankers Trust
Bear Stearns & Co. Inc.
CS First Boston Corporation
Dean Witter Reynolds Inc.
Donaldson Lufkin Jenrette Securities Corporation
Furman Selz Incorporated
Goldman Sachs & Co.
JP Morgan Securities
Lehman Brothers
Merrill Lynch
Montgomery Securities
Morgan Stanley Co. Incorporated
NatWest Securities
Nomura Securities
Oppenheimer Securities
Paine Webber
Prudential Securities
Robinson Humphrey
Robertson Stephens
Salomon Brothers
Smith Barney
31
SCHEDULE 10.2
REGISTRATION RIGHTS AGREEMENTS