Exhibit 4.3
EXECUTION COPY
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of January 29, 2007 among LEXINGTON REALTY TRUST, a Maryland
real estate investment trust (the "Company"), THE LEXINGTON MASTER LIMITED
PARTNERSHIP, a Delaware limited partnership (the "MLP"), and BEAR, STEARNS & CO.
INC., LEHMAN BROTHERS INC., KEYBANC CAPITAL MARKETS and WACHOVIA CAPITAL
MARKETS, LLC, as the initial purchasers (the "Initial Purchasers") named in
Schedule I to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement dated
January 23, 2007 (the "Purchase Agreement") among the Company, the MLP, the
subsidiary guarantors parties thereto and the Initial Purchasers, which provides
for, among other things, the sale of 5.45% Exchangeable Guaranteed Notes Due
2027 (the "Notes") of the MLP to the Initial Purchasers.
In order to induce the Initial Purchasers to enter into the
Purchase Agreement, the Company and the MLP have agreed to provide to the
Initial Purchasers and their respective direct and indirect transferees the
registration rights set forth in this Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. Capitalized terms used herein without definition shall have the
respective meanings ascribed to them in the Purchase Agreement. As used in this
Agreement, the following capitalized defined terms shall have the following
meanings:
"Additional Interest" has the meaning set forth in Section 2(e)
hereof.
"Advice" has the meaning set forth in the last paragraph of
Section 3 hereof.
"Affiliate" has the same meaning as given to that term in Rule
405 under the Securities Act or any successor rule thereunder.
"Automatic Shelf Registration Statement" means a registration
statement filed by a Well-Known Seasoned Issuer, which shall become effective
upon filing thereof pursuant to General Instruction I.D of Form S-3.
"Business Day" means any day other than a Saturday, a Sunday, or
a day on which banking institutions in New York, New York are authorized or
required by law or executive order to remain closed.
"Common Shares" means common shares of beneficial interest of the
Company, par value $0.0001 per share.
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"Company" has the meaning set forth in the preamble to this
Agreement and also includes the Company's successors and permitted assigns.
"Effective Date" means the date the initial Shelf Registration
Statement becomes effective or, in the case of designation of an Automatic Shelf
Registration Statement as the Shelf Registration Statement, the date a
Prospectus is first made available thereunder for use by the Holders.
"Effectiveness Deadline" means (i) for purposes of Section
2(a)(i) hereof, the 210th day following the Issue Date, (ii) for purposes of the
filing of any post-effective amendment pursuant to Section 2(a)(iii) hereof, the
30th day after the obligation to make such filing arises, (iii) for purposes of
the filing of any Shelf Registration Statement pursuant to Section 2(a)(iii)
hereof, the 60th day after the obligation to make such filing arises, and (iv)
for purposes of any filing made pursuant to Section 2(a)(iv) hereof, the tenth
Business Day after the obligation to make such filing arises.
"Effectiveness Period" has the meaning set forth in Section
2(a)(iv) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
"Filing Deadline" means (i) for purposes of Section 2(a)(i)
hereof, the 120th day following the Issue Date, (ii) for purposes of Section
2(a)(iii) hereof, the tenth Business Day after the date of receipt by the
Company of the information specified therein (or, if a Suspension Period is then
in effect or initiated within five Business Days following the date of receipt
of such information, the tenth Business Day following the end of such Suspension
Period), and (iii) for purposes of Section 2(a)(iv) hereof, the tenth Business
Day after the cessation of effectiveness of any Shelf Registration Statement
(or, if a Suspension Period is then in effect or initiated within five Business
Days following the date of receipt of such information, the tenth Business Day
following the end of such Suspension Period).
"Holder" means each Initial Purchaser, for so long as such
Initial Purchaser owns, or, upon exchange of the Notes, may own, any Registrable
Securities, and each of such Initial Purchaser's respective successors, assigns
and direct and indirect transferees who become, or, upon exchange of their
Notes, may become, registered owners of Registrable Securities.
"Indenture" means the Indenture dated as of January 29, 2007, as
supplemented by the First Supplemental Indenture dated January 29, 2007, by and
among the Company, the MLP, the subsidiary guarantors parties thereto and the
Trustee, pursuant to which the Notes are being issued, and in accordance with
which Common Shares may be issued, as the same may be amended, supplemented,
waived or otherwise modified from time to time in accordance with the terms
thereof.
"Initial Purchasers" has the meaning set forth in the preamble to
this Agreement.
"Inspectors" has the meaning set forth in Section 3(l) hereof.
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"Issue Date" means January 29, 2007, being the date of original
issuance of the Notes.
"Majority Holders" means the Holders collectively representing a
majority of the sum of the number of (i) outstanding Common Shares that have
been issued upon exchange of the Notes and (ii) Common Shares issuable upon
exchange of the Notes (calculated on the basis of the then prevailing exchange
ratio multiplied by the principal amount of the outstanding Notes).
"MLP" has the meaning set forth in the preamble to this Agreement
and also includes the MLP's successors and permitted assigns.
"Notes" has the meaning set forth in the preamble to this
Agreement.
"Person" means an individual, partnership, corporation, trust or
unincorporated organization, limited liability corporation, or a government or
agency or political subdivision thereof.
"Prospectus" means the prospectus included in a Shelf
Registration Statement, including any preliminary prospectus, any issuer "free
writing prospectus," as such term is defined in Rule 433 under the Securities
Act, and any such prospectus as amended or supplemented by any prospectus
supplement, including a prospectus supplement with respect to the terms of the
offering of any portion of the Registrable Securities covered by a Shelf
Registration Statement, and by all other amendments and supplements to a
prospectus, including post-effective amendments, and, in each case, including
all documents incorporated by reference therein.
"Purchase Agreement" has the meaning set forth in the preamble to
this Agreement.
"Questionnaire" has the meaning set forth in Section 2(a)(ii)
hereof.
"Records" has the meaning set forth in Section 3(l) hereof.
"Registrable Securities" means the Common Shares issued or
issuable upon exchange of the Notes; provided, however, that such Common Shares
shall cease to be Registrable Securities upon the earlier of (i) a Shelf
Registration Statement with respect to such Common Shares for the resale thereof
having been declared effective under the Securities Act and such Common Shares
having been disposed of pursuant to such Shelf Registration Statement, (ii) such
Common Shares having become eligible to be sold without restriction as
contemplated by Rule 144(k) under the Securities Act by a Person who is not an
Affiliate of the Company, or (iii) such Common Shares and the Notes having
ceased to be outstanding.
"Registration Expenses" means any and all expenses incident to
performance of or compliance by the Company and the MLP with this Agreement,
including without limitation: (i) all SEC or National Association of Securities
Dealers, Inc. (the "NASD") registration and filing fees, not including the fees
and expenses of any "qualified independent underwriter" (and its counsel), (ii)
all fees and expenses incurred in connection with compliance with state
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securities or blue sky laws (not including fees and disbursements of counsel for
underwriters or Holders in connection with blue sky qualification of any of the
Registrable Securities) and compliance with the rules of the NASD, (iii) all
expenses of any Persons in preparing or assisting in preparing, word processing,
printing and distributing any Shelf Registration Statement, any Prospectus and
any amendments or supplements thereto, and in preparing or assisting in
preparing, printing and distributing any underwriting agreements, securities
sales agreements and other documents relating to the performance of and
compliance with this Agreement, (iv) all rating agency fees, (v) the fees and
disbursements of counsel for the Company and the MLP and of the independent
certified public accountants of the Company and the MLP, including the expenses
of any "comfort letters" required by or incident to the performance of and
compliance with this Agreement, and (vi) the reasonable fees and expenses of any
special experts retained by the Company and the MLP in connection with the Shelf
Registration Statement.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Notes and the Common Shares.
"Securities Act" means the Securities Act of 1933, as amended
from time to time.
"Shelf Registration" means a registration effected pursuant to
Section 2(a) hereof.
"Shelf Registration Statement" means a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(a) hereof which
covers all of the Registrable Securities on Form S-3 or, if not then available
to the Company, on another appropriate form under Rule 415 under the Securities
Act, or any similar rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and all documents incorporated by reference therein.
"Suspension Period" has the meaning set forth in Section
2(a)(iv).
"Trustee" means the trustee with respect to the Securities under
the Indenture.
"Well-Known Seasoned Issuer" has the meaning set forth in Rule
405 under the Securities Act.
2. Registration Under the Securities Act.
(a) Shelf Registration.
(i) The Company shall file or cause to be filed (or
otherwise designate an existing Automatic Shelf Registration Statement
previously filed with the SEC as) a Shelf Registration Statement providing for
the resale by the Holders of all of the Registrable Securities, as promptly as
reasonably practicable but in any event on or prior to the Filing Deadline. If
the Shelf Registration Statement is not an Automatic Shelf Registration
Statement, the Company shall use its reasonable best efforts to have such Shelf
Registration Statement declared effective by the SEC as promptly as reasonably
practicable after filing thereof, but in any event on or prior to the
Effectiveness Deadline. If the Shelf Registration Statement is an
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Automatic Shelf Registration Statement, the Company shall use its reasonable
best efforts to prepare and file a supplement to the Prospectus to cover resales
of the Registrable Securities by the Holders as promptly as reasonably
practicable after filing thereof, but in any event on or prior to the
Effectiveness Deadline.
(ii) Notwithstanding any other provision hereof, no
Holder of Registrable Securities shall be entitled to include any of its
Registrable Securities in any Shelf Registration Statement pursuant to this
Agreement unless and until such Holder agrees in writing to be bound by all of
the provisions of this Agreement applicable to such Holder and the Holder
furnishes to the Company a fully completed notice and questionnaire in the form
attached as Annex A to the Offering Memorandum (the "Questionnaire") and such
other information in writing as the Company may reasonably request in writing
for use in connection with the Shelf Registration Statement or Prospectus
included therein and in any application to be filed with or under state
securities laws. The Company shall issue a press release through a reputable
national newswire service (and post it on its website or disseminate it through
other appropriate public medium) regarding its filing (or intention to designate
an Automatic Shelf Registration Statement as) of the Shelf Registration
Statement and of the anticipated Effective Date thereof. In order to be named as
a selling security holder in the Prospectus at the time it is first made
available for use, each Holder must furnish the completed Questionnaire and such
other information that the Company may reasonably request in writing, if any, to
the Company in writing no later than the tenth Business Day prior to the
anticipated Effective Date as announced in the press release. Each Holder as to
which any Shelf Registration is being effected agrees to furnish to the Company
from time to time all information with respect to such Holder necessary to make
the information previously furnished to the Company by such Holder not
materially misleading.
(iii) From and after the Effective Date, upon receipt
of a completed Questionnaire and such other information that the Company may
reasonably request in writing, if any, the Company will use its reasonable best
efforts to file as promptly as reasonably practicable but in any event on or
prior to the Filing Deadline either (i) if then permitted by the Securities Act
or the rules and regulations thereunder (or then-current SEC interpretations
thereof), a supplement to the Prospectus naming such Holder as a selling
security holder and containing such other information as necessary to permit
such Holder to deliver the Prospectus to purchasers of the Holder's Common
Shares, or (ii) if it is not then permitted under the Securities Act or the
rules and regulations thereunder (or then-current SEC interpretations thereof)
to name such Holder as a selling security holder in a supplement to the
Prospectus, a post-effective amendment to the Shelf Registration Statement or an
additional Shelf Registration Statement as necessary for such Holder to be named
as a selling security holder in the Prospectus contained therein to permit such
Holder to deliver the Prospectus to purchasers of the Holder's Registrable
Securities (subject, in the case of either clause (i) or (ii), to the Company's
right to suspend use of the Shelf Registration Statement as described in Section
2(a)(iv) hereof). If a post-effective amendment or additional Shelf Registration
Statement is required to be filed, the Company shall use its reasonable best
efforts to have such post-effective amendment or additional Shelf Registration
Statement declared effective by the SEC as promptly as practicable after filing
thereof, but in any event on or prior to the Effectiveness Deadline. The Company
shall not be required to file more than three supplements to the Prospectus, two
post-effective amendments or one additional Shelf Registration Statements in any
fiscal quarter for all such Holders.
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(iv) The Company agrees to use its reasonable best
efforts to keep the Shelf Registration Statement continuously effective and the
Prospectus usable for resales until there are no Registrable Securities
outstanding (the "Effectiveness Period"); provided, however, that for 30 days or
less (whether or not consecutive) in any three-month period, and for 90 days or
less (whether or not consecutive) in any 12-month period, the Company shall be
permitted, by giving written notice to the Holders of Registrable Securities, to
suspend sales thereof if the Shelf Registration Statement is no longer effective
or usable for resales due to circumstances relating to pending developments,
public filings with the SEC and similar events, or because the Prospectus
contains an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary in order to make statements
therein not misleading (any period of suspension hereunder, a "Suspension
Period"). If any Shelf Registration Statement ceases to be effective or usable
for resales by Holders for any reason (other than by reason of any such Holder's
failure to provide a Questionnaire, in which case the provisions of Section
2(a)(ii) or 2(a)(iii) hereof shall apply) at any time during the Effectiveness
Period, the Company shall, subject to the proviso contained in the immediately
preceding sentence, use its reasonable best efforts to promptly cause such Shelf
Registration Statement to become effective under the Securities Act, and in any
event shall, within ten Business Days of such cessation of effectiveness or
usability, (i) file with the SEC one or more supplements to the Prospectus,
post-effective amendments or reports under the Exchange Act in a manner
reasonably expected to obtain the withdrawal of any order suspending the
effectiveness of such Shelf Registration Statement, or (ii) file with the SEC an
additional Shelf Registration Statement. If a post-effective amendment or an
additional Shelf Registration Statement is filed, the Company shall use its
reasonable best efforts to (A) cause such post-effective amendment or Shelf
Registration Statement to become effective under the Securities Act as promptly
as reasonably practicable after such filing, but in no event later than the
applicable Effectiveness Deadline, and (B) keep such post-effective amendment or
Shelf Registration Statement continuously effective until the end of the
Effectiveness Period.
(v) If the Shelf Registration Statement is not an
Automatic Shelf Registration Statement, the Company shall not permit any
securities other than (i) the Company's issued and outstanding securities
currently possessing incidental or so-called "piggy-back" registration rights
and (ii) the Registrable Securities to be included in the Shelf Registration.
The Company will provide to each Holder named therein a reasonable number of
copies of the Prospectus which is a part of the Shelf Registration Statement,
notify each such Holder of the Effective Date and take such other actions as are
required to permit unrestricted resales of the Registrable Securities by such
Holder. The Company further agrees to supplement or amend the Shelf Registration
Statement or supplement the Prospectus if and as required by the rules,
regulations or instructions applicable to the registration form used by the
Company for such Shelf Registration Statement or by the Securities Act or by any
other rules and regulations thereunder for shelf registrations, and the Company
agrees to furnish to the Holders of Registrable Securities copies of any such
supplement or amendment as promptly as reasonably practicable after its being
used or filed with the SEC.
(b) Listing. The Company shall use its reasonable best
efforts to maintain the approval of the Common Shares for listing on the New
York Stock Exchange during the Effectiveness Period.
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(c) Expenses. The Company and the MLP shall pay all
Registration Expenses in connection with any Shelf Registration Statement filed
pursuant to Section 2(a) hereof. Each Holder shall pay all expenses of its
counsel, underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Registrable Securities
pursuant to the Shelf Registration Statement.
(d) Effective Shelf Registration Statement. If, after the
Effective Date the offering of Registrable Securities pursuant to a Shelf
Registration Statement is interfered with by any stop order, injunction or other
order or requirement of the SEC or any other governmental agency or court, such
Shelf Registration Statement will be deemed not to have been effective during
the period of such interference, until the offering of Registrable Securities
pursuant to such Shelf Registration Statement may legally resume.
(e) Additional Interest. Prior to the second anniversary of
the Issue Date, in the event that:
(i) a Shelf Registration Statement is not filed with
the SEC or designated as such by the Company on or prior to the Filing Deadline
pursuant to Section 2(a)(i), then additional interest ("Additional Interest")
shall accrue on the principal amount of the Notes at a rate equal to 0.25% per
year for the first 90-day period from the day following such Filing Deadline,
and thereafter at a rate per year of 0.50% of the principal amount of the Notes;
(ii) (x) a Shelf Registration Statement is not declared
effective by the SEC, or (y) if the Company shall have designated a previously
filed and effective Automatic Shelf Registration Statement as the Shelf
Registration Statement for purposes of this Agreement, the Company shall not
have filed a supplement to the Prospectus to cover resales of the Registrable
Securities by the Holders, in the case of either (x) or (y), on or prior to the
Effectiveness Deadline pursuant to Section 2(a)(i), then Additional Interest
shall accrue on the principal amount of the Notes at a rate equal to 0.25% per
year for the first 90-day period from the day following such Effectiveness
Deadline, and thereafter at a rate per year of 0.50% of the principal amount of
the Notes;
(iii) following the Effective Date, (A) the Company
fails to make any filing required pursuant to Section 2(a)(iii) hereof prior to
the Filing Deadline applicable thereto, or (B) in the event such filing is a
post-effective amendment or additional Shelf Registration Statement, such
post-effective amendment or Shelf Registration Statement fails to become
effective on or prior to the Effectiveness Deadline applicable thereto, then
Additional Interest shall accrue on the principal amount of the Notes at a rate
equal to 0.25% per year for the first 90-day period from the day following such
Filing Deadline or Effectiveness Deadline, as applicable, and thereafter at a
rate per year of 0.50% of the principal amount of the Notes;
(iv) following the Effective Date, a Shelf Registration
Statement ceases to be effective (without being succeeded immediately by an
additional Shelf Registration Statement that is filed and immediately becomes
effective) or usable for the offer and sale of the Registrable Securities, other
than in connection with (A) a Suspension Period or (B) as a result of a
requirement to file a post-effective amendment or supplement to the
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Prospectus to make changes to the information regarding selling security holders
or the plan of distribution provided for therein, and the Company does not cure
the lapse of effectiveness or usability within ten Business Days (or, if a
Suspension Period is then in effect, within ten Business Days following the
expiration of such Suspension Period) by a post-effective amendment, a
supplement to the Prospectus or a report filed pursuant to the Exchange Act,
then Additional Interest shall accrue on the principal amount of the Notes at a
rate equal to 0.25% per year for the first 90-day period from the day following
such tenth Business Day, and thereafter at a rate per year of 0.50% of the
principal amount of the Notes;
(v) any Suspension Period or Periods exceed 30 days in
any three-month period or 90 days in any 12-month period, then, commencing with
the 31st day in such three-month period or the 91st day in such 12-month period,
as the case may be, then Additional Interest shall accrue on the principal
amount of the Notes at a rate equal to 0.25% per year for the first 90-day
period from the day following the 31st or 91st day, as the case may be, and
thereafter at a rate per year of 0.50% of the principal amount of the Notes; or
(vi) the Company fails to name as a selling security
holder any Holder that had complied timely with its obligations hereunder in a
manner to entitle such Holder to be so named in (A) any Shelf Registration
Statement or any amendment to the Shelf Registration Statement at the time it
first becomes effective or (B) any Prospectus at the later of time of filing
thereof or the time the Shelf Registration Statement of which the Prospectus
forms a part becomes effective, then Additional Interest will accrue on the
principal amount of Notes held by such Holder at a rate equal to 0.25% per year
for the first 90-day period from the day following the effective date of such
Shelf Registration Statement or the time of filing of such Prospectus, as the
case may be, and thereafter at a rate per year of 0.50% of the principal amount
of the Notes held by such Holder;
provided, however, that in no event shall Additional Interest accrue at a rate
per year exceeding 0.50% of the principal amount of the Notes; and provided,
further, that Additional Interest on the principal amount of the Notes as a
result thereof shall cease to accrue on the earlier of the second anniversary of
the Issue Date and:
(1) upon the filing or designation of a Shelf
Registration Statement (in the case of clause (i) above);
(2) upon the Effective Date (in the case of clause
(ii) above);
(3) upon the filing of a supplement to the
Prospectus, a post-effective amendment or an additional Shelf Registration
Statement (in the case of clause (iii)(A) above) or upon the Effective Date (in
the case of clause (iii)(B) above);
(4) upon such time as the Shelf Registration
Statement which had ceased to remain effective or usable for resales again
becomes effective and usable for resales (in the case of clause (iv) above);
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(5) upon such time as the Shelf Registration
Statement which had ceased to remain effective or usable for resales again
becomes effective and usable for resales (in the case of clause (v) above); or
(6) upon the time such Holder is permitted to sell
its Registrable Securities pursuant to any Shelf Registration Statement and
Prospectus in accordance with applicable law (in the case of clause (vi) above).
Any amounts of Additional Interest due pursuant to Section 2(e)
will be payable by the MLP semi-annually in arrears in cash on the next
succeeding interest payment date to Holders entitled to receive such Additional
Interest on the relevant record dates for the payment of interest.
Notwithstanding any provision in this Agreement, in no event
shall Additional Interest accrue to holders of Common Shares issued upon
exchange of the Notes. If any Note ceases to be outstanding during any period
for which Additional Interest are accruing, the MLP will prorate the Additional
Interest payable with respect to such Note. Additional Interest shall represent
the sole entitlement of the Holders to money damages relating to the failure of
the Company to file or otherwise designate a Shelf Registration Statement with
the SEC on or prior to the Filing Deadline.
(f) Specific Enforcement. Without limiting the remedies
available to the Holders, the Company acknowledges that any failure by it to
comply with its obligations under Section 2(a) hereof may result in material
irreparable injury to the Holders for which there is no adequate remedy at law,
that it would not be possible to measure damages for such injuries precisely and
that, in the event of any such failure, any Holder may obtain such relief as may
be required to specifically enforce the Company's obligations under Section 2(a)
hereof.
3. Registration Procedures. In connection with the obligations of
the Company with respect to the Shelf Registration Statement pursuant to Section
2(a) hereof and subject to Sections 5 and 6 hereof, the Company shall use its
reasonable best efforts to:
(a) prepare and file with the SEC or designate a Shelf
Registration Statement as prescribed by Section 2(a)(i) hereof within the
relevant time period specified in Section 2(a)(i) hereof on the appropriate form
under the Securities Act, which form shall (i) be selected by the Company, (ii)
be available for the sale of the Registrable Securities by the selling Holders
thereof, and (iii) comply as to form in all material respects with the
requirements of the applicable form and include all financial statements
required by the SEC to be filed therewith; the Company shall use its reasonable
best efforts to cause such Shelf Registration Statement to become effective and
remain effective and the Prospectus usable for resales in accordance with
Section 2 hereof; provided, however, that, before filing any Shelf Registration
Statement or Prospectus or any amendments or supplements thereto, upon request,
the Company shall furnish to and afford the Holders of the Registrable
Securities covered by such Shelf Registration Statement, their one designated
counsel and the managing underwriters, if any, a reasonable opportunity to
review copies of all such documents (including copies of any documents to be
incorporated by reference therein and all exhibits thereto) proposed to be
filed; and the Company shall not file any Shelf Registration Statement or
Prospectus or any amendments or supplements
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thereto in respect of which the Holders must be afforded an opportunity to
review prior to the filing of such document if the Majority Holders, their
counsel or the managing underwriters, if any, shall reasonably object in a
timely manner;
(b) prepare and file with the SEC such amendments and
post-effective amendments to the Shelf Registration Statement as may be
necessary to keep such Shelf Registration Statement effective for the
Effectiveness Period, and cause each Prospectus to be supplemented, if so
determined by the Company or requested by the SEC, 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, the Exchange Act and the rules and regulations
promulgated thereunder applicable to it with respect to the disposition of all
securities covered by a Shelf Registration Statement during the Effectiveness
Period in accordance with the intended method or methods of distribution by the
selling Holders thereof described in this Agreement;
(c) (i) furnish to each Holder of Registrable Securities
included in the Shelf Registration Statement and to each underwriter of an
underwritten offering of Registrable Securities, if any, without charge, as many
copies of each Prospectus, including each preliminary prospectus, and any
amendment or supplement thereto, and such other documents as such Holder or
underwriter may reasonably request, in order to facilitate the public sale or
other disposition of the Registrable Securities and (ii) consent to the use of
the Prospectus or any amendment or supplement thereto by each of the selling
Holders of Registrable Securities included in the Shelf Registration Statement
in connection with the offering and sale of the Registrable Securities covered
by the Prospectus or any amendment or supplement thereto;
(d) register or qualify the Registrable Securities under all
applicable state securities or "blue sky" laws of such jurisdictions by the time
the applicable Shelf Registration Statement has become effective under the
Securities Act as any Holder of Registrable Securities covered by a Shelf
Registration Statement and each underwriter of an underwritten offering of
Registrable Securities shall reasonably request in writing in advance of such
date of effectiveness, and do any and all other acts and things which may be
reasonably necessary or advisable to enable such Holder or such underwriter to
consummate the disposition in each such jurisdiction of such Registrable
Securities owned by such Holder; provided, however, that the Company shall not
be required to (i) qualify as a foreign entity or as a dealer in securities in
any jurisdiction where it would not otherwise be required to qualify but for
this Section 3(d), (ii) file any general consent to service of process in any
jurisdiction where it would not otherwise be subject to such service of process
or (iii) subject itself to taxation in any such jurisdiction if it is not then
so subject;
(e) as promptly as reasonably practicable notify each Holder
of Registrable Securities, their counsel and the managing underwriters, if any,
and promptly confirm such notice in writing (i) when a Shelf Registration
Statement has become effective and when any post-effective amendments thereto
become effective, (ii) of any request by the SEC or any state securities
authority for amendments and supplements to a Shelf Registration Statement or
Prospectus or for additional information after the Shelf Registration Statement
has become effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a Shelf Registration
Statement or the qualification of the
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Registrable Securities in any jurisdiction described in Section 3(d) hereof or
the initiation of any proceedings for that purpose, (iv) if, between the
Effective Date and the closing of any sale of Registrable Securities covered
thereby, any of the representations and warranties of the Company contained in
any purchase agreement, securities sales agreement or other similar agreement
with respect to the Registrable Securities cease to be true and correct in all
material respects, (v) of the happening of any event or the failure of any event
to occur or the discovery of any facts, during the Effectiveness Period, (x)
which makes any statement made in a Shelf Registration Statement untrue in any
material respect or which causes such Shelf Registration Statement to omit to
state a material fact which is required to be stated therein or which is
necessary in order to make the statements therein not misleading, or (y) which
makes any statement made in a related Prospectus untrue in any material respect
or which causes such Prospectus to omit to state a material fact which is
required to be stated therein or which is necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and (vi) of the reasonable determination of the Company
that a post-effective amendment to the Shelf Registration Statement would be
appropriate;
(f) obtain the withdrawal of any order suspending the
effectiveness of the Shelf Registration Statement as promptly as reasonably
practicable;
(g) upon request, furnish to each Holder of Registrable
Securities included within the coverage of a Shelf Registration Statement,
without charge, at least one conformed copy of the Shelf Registration Statement
relating to such Shelf Registration and any post-effective amendment thereto
(without documents incorporated therein by reference or exhibits thereto, unless
requested);
(h) cooperate with the selling Holders of Registrable
Securities to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any restrictive
legends and registered in such names as the selling Holders or the underwriters
may reasonably request at least two Business Days prior to the closing of any
sale of Registrable Securities pursuant to the Shelf Registration Statement;
(i) as promptly as reasonably practicable after the
occurrence of any event specified in Section 3(e)(ii), 3(e)(iii), 3(e)(v)
(subject to the respective grace periods set forth in Section 2(a)(iv)) or
3(e)(vi) hereof, prepare a supplement or post-effective amendment to the Shelf
Registration Statement or 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, such Prospectus will
not include any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and the Company a shall notify each
Holder to suspend use of the Prospectus as promptly as reasonably practicable
after the occurrence of such an event, and each Holder hereby agrees to suspend
use of the Prospectus until the Company has amended or supplemented the
Prospectus to correct such misstatement or omission;
(j) subject to Section 5 hereof, enter into such agreements
(including underwriting agreements) as are customary in underwritten offerings
and take all such other appropriate actions in connection therewith as are
reasonably requested by the Majority Holders
-11-
of the Registrable Securities in order to expedite or facilitate the
registration or the disposition of the Registrable Securities;
(k) whether or not an underwriting agreement is entered into
and whether or not the registration is an underwritten registration, if
requested by (x) any Initial Purchaser, in the case where such Initial Purchaser
holds Notes acquired by it as part of its initial placement and (y) Majority
Holders of the Registrable Securities covered thereby: (i) make such
representations and warranties to Holders of such Registrable Securities and the
underwriters, if any, with respect to the business of the Company and its
subsidiaries as then conducted and with respect to the Shelf Registration
Statement, Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, as are customarily made by
issuers to underwriters in underwritten offerings, and confirm the same if and
when requested; (ii) obtain opinions of counsel to the Company and updates
thereof (which may be in the form of a reliance letter) in form and substance
reasonably satisfactory to the managing underwriters (if any) and the Majority
Holders of the Registrable Securities being sold, addressed to each selling
Holder and the underwriters (if any) covering the matters customarily covered in
opinions requested in underwritten offerings and such other matters as may be
reasonably requested by such underwriters (it being agreed that the matters to
be covered by such opinion may be subject to customary qualifications and
exceptions); (iii) obtain "comfort letters" and updates thereof in form and
substance reasonably satisfactory to the managing underwriters from the
independent certified public accountants of the Company (and, if necessary, any
other independent certified public accountants of any business acquired by the
Company for which financial statements and financial data are, or are required
to be, included in the Registration Statement), addressed to each of the
underwriters, such letters to be in customary form and covering matters of the
type customarily covered in "comfort letters" in connection with underwritten
offerings and such other matters as reasonably requested by such underwriters;
and (iv) if an underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable than those set forth
in Section 4 hereof (or such other provisions and procedures acceptable to
Majority Holders of Registrable Securities covered by such Shelf Registration
Statement and the managing underwriters) customary for such agreements with
respect to all parties to be indemnified pursuant to said Section (including,
without limitation, such underwriters and selling Holders); and in the case of
an underwritten registration, the above requirements shall be satisfied at each
closing under the related underwriting agreement or as and to the extent
required thereunder;
(l) make reasonably available for inspection by any selling
Holder of Registrable Securities who certifies to the Company that it has a
current intention to sell Registrable Securities pursuant to the Shelf
Registration, any underwriter participating in any such disposition of
Registrable Securities, and any attorney, accountant or other agent retained by
any such selling Holder or underwriter (collectively, the "Inspectors"), at the
offices where normally kept, during the Company's normal business hours, all
financial and other records, pertinent organizational and operational documents
and properties of the Company and its subsidiaries (collectively, the "Records")
as shall be reasonably necessary to enable them to exercise any applicable due
diligence responsibilities, and cause the officers, trustees and employees of
the Company and its subsidiaries to supply all relevant information in each case
reasonably requested by any such Inspector in connection with such Shelf
Registration Statement; provided that (x) Records and information which the
Company, in good faith,
-12-
determines to be confidential and any Records and information which the Company
notifies the Inspectors are confidential shall not be disclosed to any Inspector
except where (i) the disclosure of such Records or information is necessary to
avoid or correct a material misstatement or omission in such Shelf Registration
Statement, (ii) the release of such Records or information is ordered pursuant
to a subpoena or other order from a court of competent jurisdiction or is
necessary in connection with any action, suit or proceeding or (iii) such
Records or information previously have been made generally available to the
public; (y) each selling Holder of such Registrable Securities will be required
to agree in writing that Records and information obtained by it as a result of
such inspections shall be deemed confidential and shall not be used by it as the
basis for any market transactions in the securities of the Company unless and
until such Records or information are made generally available to the public
through no fault of an Inspector or a selling Holder; and (z) each selling
Holder of such Registrable Securities will be required to further agree in
writing that it will, upon learning that disclosure of such Records or
information is sought in a court of competent jurisdiction, or in connection
with any action, suit or proceeding, give notice, to the extent permitted by
applicable law, to the Company and allow the Company at its expense to undertake
appropriate action to prevent disclosure of the Records and information deemed
confidential;
(m) comply with all applicable rules and regulations of the SEC so long as any
provision of this Agreement shall be applicable and make generally available to
its security holders earning statements satisfying the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than 45 days after the end of any
twelve-month period (or 90 days after the end of any twelve-month period if such
period is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Registrable Securities are sold to underwriters in a firm commitment or
best efforts underwritten offering and (ii) if not sold to underwriters in such
an offering, commencing on the first day of the first fiscal quarter of the
Company after the Effective Date, which statements shall cover said twelve-month
periods, provided that the obligations under this Section 3(m) shall be
satisfied by the timely filing of quarterly and annual reports on Forms 10-Q and
10-K under the Exchange Act;
(n) reasonably cooperate with each seller of Registrable
Securities covered by a Shelf Registration Statement and each underwriter, if
any, participating in the disposition of such Registrable Securities and their
respective counsel in connection with any filings required to be made with the
NASD;
(o) take all other steps necessary to effect the
registration of the Registrable Securities covered by a Shelf Registration
Statement contemplated hereby; and
(p) the Company may require each seller of Registrable
Securities as to which any registration is being effected to furnish to it such
information regarding such seller as may be required by the staff of the SEC to
be included in a Shelf Registration Statement; the Company may exclude from such
registration the Registrable Securities of any seller who fails to furnish such
information within a reasonable time after receiving such request; and the
Company shall have no obligation to register under the Securities Act the
Registrable Securities of a seller who so fails to furnish such information.
-13-
Each Holder agrees that, upon receipt of any notice from the
Company of the occurrence of any event specified in Section 3(e)(ii), 3(e)(iii),
3(e)(v) or 3(e)(vi) hereof, such Holder will forthwith discontinue disposition
of Registrable Securities pursuant to a Shelf Registration Statement until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(i) hereof or until it is advised in writing (the
"Advice") by the Company that the use of the applicable Prospectus may be
resumed, and, if so directed by the Company, such Holder will deliver to the
Company (at its expense) all copies in such Holder's possession, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities current at the time of receipt of such
notice. If the Company shall give any such notice to suspend the disposition of
Registrable Securities pursuant to a Shelf Registration Statement, the Company
shall use its reasonable best efforts to file and have declared effective (if an
amendment) as promptly as reasonably practicable after the resolution of the
related matters an amendment or supplement to the Shelf Registration Statement
and related Prospectus.
4. Indemnification and Contribution. (a) The Company and the MLP
each hereby agrees, jointly and severally, to indemnify and hold harmless the
Initial Purchasers, each Holder, each underwriter who participates in an
offering of the Registrable Securities, each Person, if any, who controls any of
such parties within the meaning of Section 15 of the Securities Act and Section
20 of the Exchange Act and each of their respective directors, officers,
employees and agents, as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of (x) any untrue statement or
alleged untrue statement of a material fact contained in a Shelf Registration
Statement (or any amendment thereto) or the omission or alleged omission from
the Shelf Registration Statement (or any amendment thereto) of a material fact
which is required to be stated therein or which is necessary in order to make
the statements therein not misleading, or (y) any untrue statement or alleged
untrue statement of a material fact contained in the Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission from the
Prospectus (or any amendment or supplement thereto) of a material fact which is
required to be stated therein or which is necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, provided that (subject to Section 4(d) hereof) such
settlement is effected with the prior written consent of the Company and the
MLP; and
(iii) against any and all expenses whatsoever, as
incurred (including the reasonable fees and disbursements of one counsel chosen
by the Initial Purchasers or such Holder), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense is not
paid under
-14-
subparagraph (i) or (ii) of this Section 4(a); provided, however, that this
indemnity does not apply to any loss, liability, claim, damage or expense to the
extent arising out of an untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with written
information furnished in writing to the Company or the MLP by any Initial
Purchaser through the Representative or such Holder or underwriter for use in
the Shelf Registration Statement (or any amendment thereto) or any Prospectus
(or any amendment or supplement thereto).
(b) Each Holder and each underwriter agrees, severally and
not jointly, to indemnify and hold harmless the Company, its trustees and
officers (including each officer of the Company who signed the Shelf
Registration Statement), the MLP and its partners, the Initial Purchasers, and
each Person, if any, who controls the Company or the MLP or any Initial
Purchaser within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act against any and all loss, liability, claim, damage and
expense whatsoever described in the indemnity contained in Section 4(a) hereof,
as incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Shelf Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company or the MLP by such Holder expressly for use in such Shelf Registration
Statement (or any amendment thereto) or such Prospectus (or any amendment or
supplement thereto); provided, however, that no Holder shall be liable for any
claims hereunder in excess of the amount of net proceeds received by such Holder
from the sale of Registrable Securities.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have under this Section 4 to the extent that it is
not materially prejudiced by such failure as a result thereof, and in any event
shall not relieve it from liability which it may have otherwise on account of
this indemnity agreement. In the case of parties indemnified pursuant to Section
4(a) or (b) above, counsel to the indemnified parties shall be a law firm of
national standing selected by such parties. An indemnifying party may
participate at its own expense in the defense of such action; provided, however,
that counsel to the indemnifying party shall not (except with the consent of the
indemnified party, which shall not be unreasonably withheld) also be counsel to
the indemnified party. In no event shall the indemnifying parties be liable for
the fees and expenses of more than one counsel (in addition to local counsel),
separate from their own counsel, for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties (which consent shall not be unreasonably withheld), settle or compromise
or consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 4 (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional written release
of each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
-15-
(d) If at any time an indemnified party shall have validly
requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by Section 4(a)(ii) effected without
its written consent if (i) such settlement is entered into more than 45 days
after receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) In order to provide for just and equitable contribution
in circumstances in which the indemnity agreement set forth in this Section 4 is
for any reason held to be unenforceable by an indemnified party although
applicable in accordance with its terms, the Company and the MLP, on the one
hand, and the Holders, on the other hand, shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
such indemnity agreement incurred by the Company, the MLP and the Holders, as
incurred; provided, however, that 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 that was not guilty of such
fraudulent misrepresentation. As between the Company and the MLP, on the one
hand, and the Holders, on the other hand, such parties shall contribute to such
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnity agreement in such proportion as shall be
appropriate to reflect the relative fault of the Company and the MLP, on the one
hand, and the Holders, on the other hand, with respect to the statements or
omissions which resulted in such loss, liability, claim, damage or expense, or
action in respect thereof, as well as any other relevant equitable
considerations. The relative fault of the Company and the MLP, on the one hand,
and of the Holders, on the other hand, shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the MLP, on the one hand, or by or on
behalf of the Holders, on the other, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company, the MLP and the Holders of the Registrable
Securities agree that it would not be just and equitable if contribution
pursuant to this Section 4 were to be determined by pro rata allocation or by
any other method of allocation that does not take into account the relevant
equitable considerations. For purposes of this Section 4, each Affiliate of a
Holder, and each director, officer and employee and Person, if any, who controls
a Holder or such Affiliate within the meaning of Section 15 of the Securities
Act shall have the same rights to contribution as such Holder, and each trustee
and officer of the Company, each partner of the MLP and each Person, if any, who
controls the Company or the MLP within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to
contribution as the Company and the MLP.
5. Underwritten Registration; Participation Therein.
Notwithstanding any provision of this Agreement to the contrary, and subject to
Section 2(a)(iii) hereof, in no event will the method of distribution of the
Registrable Securities take the form of an underwritten offering without the
prior written consent of the Company. No Holder may participate in an
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Securities on the basis provided in the underwriting
arrangement approved by the
-16-
Persons entitled hereunder to approve such arrangements and (b) completes and
executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents reasonably required
under the terms of such underwriting arrangements.
6. Selection of Underwriters. The Holders of Registrable
Securities covered by the Shelf Registration Statement who desire to do so may
sell the Common Shares covered by such Shelf Registration in an underwritten
offering, subject to the provisions of Sections 3(l) and 5 hereof. In any such
underwritten offering, the underwriter or underwriters and manager or managers
that will administer the offering will be selected by the Majority Holders of
the Registrable Securities included in such offering; provided, however, that
such underwriters and managers must be reasonably satisfactory to the Company.
7. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as it is subject to
the reporting requirements of Section 13 or 15 of the Exchange Act and any
Registrable Securities remain outstanding, the Company will file the reports
required to be filed by it under the Securities Act and Section 13(a) or 15(d)
of the Exchange Act and the rules and regulations adopted by the SEC thereunder;
provided, however, that if the Company ceases to be so required to file such
reports, it will, upon the request of any Holder of Registrable Securities (a)
make publicly available such information as is necessary to permit sales of its
securities pursuant to Rule 144 under the Securities Act, (b) deliver such
information to a prospective purchaser as is necessary to permit sales of its
securities pursuant to Rule 144A under the Securities Act, and (c) take such
further action that is reasonable in the circumstances, in each case, to the
extent required from time to time to enable such Holder to sell its Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (i) Rule 144 under the Securities Act, as such
rule may be amended from time to time, (ii) Rule 144A under the Securities Act,
as such rule may be amended from time to time, or (iii) any similar rules or
regulations hereafter adopted by the SEC. 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 requirements.
(b) No Inconsistent Agreements. Each of the Company and the
MLP has not entered into, and will not enter into, any agreement which is
inconsistent with the rights granted to the Holders of Registrable Securities in
this Agreement or otherwise conflicts with the provisions hereof. The rights
granted to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's or the
MLP's other issued and outstanding securities under any such agreements.
(c) 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 and the MLP have obtained
the written consent of Majority Holders of the outstanding Registrable
Securities affected by such amendment, modification, supplement, waiver or
departure; provided that no amendment, modification or supplement or waiver or
consent to the departure with respect to the provisions of Section 4 hereof
shall be effective as against any
-17-
Holder of Registrable Securities unless consented to in writing by such Holder
of Registrable Securities. Notwithstanding the foregoing sentence, (i) this
Agreement may be amended, without the consent of any Holder of Registrable
Securities, by written agreement signed by the Company, the MLP and the Initial
Purchasers, to cure any ambiguity, correct or supplement any provision of this
Agreement that may be inconsistent with any other provision of this Agreement or
to make any other provisions with respect to matters or questions arising under
this Agreement which shall not be inconsistent with other provisions of this
Agreement, (ii) this Agreement may be amended, modified or supplemented, and
waivers and consents to departures from the provisions hereof may be given, by
written agreement signed by the Company, the MLP and the Initial Purchasers to
the extent that any such amendment, modification, supplement, waiver or consent
is, in their reasonable judgment, necessary or appropriate to comply with
applicable law (including any interpretation of the Staff of the SEC) or any
change therein and (iii) to the extent any provision of this Agreement relates
to the Initial Purchasers, such provision may be amended, modified or
supplemented, and waivers or consents to departures from such provisions may be
given, by written agreement signed by the Initial Purchasers, the Company and
the MLP.
(d) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Company or by means of a notice given in accordance with the provisions of
this Section 7(d), which address initially is, with respect to the Initial
Purchasers, the respective addresses set forth in the Purchase Agreement; and
(ii) if to the Company or the MLP, initially at the Company's and the MLP's
respective addresses set forth in the Purchase Agreement and thereafter at such
other address, notice of which is given in accordance with the provisions of
this Section 7(d).
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied; and
on the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
(e) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors, assigns and transferees of
the Initial Purchasers, including, without limitation and without the need for
an express assignment, subsequent Holders; provided, however, that nothing
herein shall be deemed to permit any assignment, transfer or other disposition
of Registrable Securities in violation of the terms of the Purchase Agreement or
the Indenture relating to the Notes or declaration of trust of the Company. If
any transferee of any Holder shall acquire Registrable Securities, in any
manner, whether by operation of law or otherwise, such Registrable Securities
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Securities, such Person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement and such Person shall be entitled to receive the benefits hereof.
(f) Mergers and other Change of Control Transactions.
Nothing in this Agreement shall restrict the ability of the Company or the MLP
to consummate a merger,
-18-
reorganization or any transaction that is covered in the definition of the term
"Change in Control" (as defined in the First Supplemental Indenture), and upon a
Change in Control, all obligations of the Company and the MLP in this Agreement
shall terminate except that the Company, the MLP and the successors, if any,
shall remain obligated on those agreements of the Company and the MLP in Section
4 hereof.
(g) Third Party Beneficiaries. Each Holder shall be a third
party beneficiary of the agreements made hereunder among the Company, the MLP
and the Initial Purchasers, and the Initial Purchasers shall have the right to
enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights or the rights of Holders hereunder.
(h) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(i) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(j) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH OF THE
PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE STATE COURTS OF THE
STATE OF NEW YORK OR THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA, IN EACH
CASE SITTING IN THE CITY OF NEW YORK, IN ANY SUCH SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE MATTERS CONTEMPLATED
HEREBY, IRREVOCABLY WAIVES ANY DEFENSE OF LACK OF PERSONAL JURISDICTION AND
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN ANY SUCH COURT. EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF VENUE OF SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY
CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM.
(k) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(l) Securities Held by the Company, the MLP or their
respective Affiliates. Whenever the consent or approval of Holders of a
specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company, the MLP or any of
-19-
their respective Affiliates shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
[Signature Page Follows]
-20-
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
LEXINGTON REALTY TRUST
By: /s/ T. Wilson Eglin
------------------------------------
Name: T. Wilson Eglin
Title: Chief Executive Officer
LEXINGTON MASTER LIMITED PARTNERSHIP, a
Delaware limited partnership
By: Lex GP-1 Trust, its general partner,
a Delaware statutory trust
By: /s/ T. Wilson Eglin
------------------------------------
Name: T. Wilson Eglin
Title: Chief Executive Officer
CONFIRMED AND ACCEPTED, as of the date first above written:
BEAR, STEARNS & CO. INC.
By: /s/ Paul Rosica
-------------------------------------------
Authorized Signatory
LEHMAN BROTHERS INC.
By: /s/ Scott Shaevitz
-------------------------------------------
Authorized Signatory
Each for itself and as a Representative of the other Initial Purchasers
[Registration Rights Agreement]