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Exhibit 5.2
REGISTRATION RIGHTS AGREEMENT
DATED AS OF MARCH 17, 1997
BY AND AMONG
LEXINGTON CORPORATE PROPERTIES,INC.
LEPERCQ CORPORATE INCOME FUND L.P.
AND
XXXXXXX XXXXX GLOBAL ALLOCATION
FUND, INC.
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TABLE OF CONTENTS
PAGE
1. DEFINITIONS............................................................ -1-
2. EXCHANGE REGISTRATION.................................................. -6-
3. DEMAND REGISTRATION - COMPANY.......................................... -7-
4. DEMAND REGISTRATION - PARTNERSHIP...................................... -8-
5. PIGGYBACK REGISTRATION................................................. -8-
6. BLACKOUT AND HOLDBACK EVENTS........................................... -11-
7. LIQUIDATED DAMAGES..................................................... -12-
8. REGISTRATION PROCEDURES................................................ -13-
9. REGISTRATION EXPENSES.................................................. -20-
10. INDEMNIFICATION AND CONTRIBUTION....................................... -20-
11. RULES 144 AND 144A..................................................... -24-
12. UNDERWRITTEN REGISTRATIONS............................................. -24-
13. MISCELLANEOUS.......................................................... -25-
(i)
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REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated
as of March 17, 1997, by and among LEXINGTON CORPORATE PROPERTIES, INC., a
Maryland corporation (the "Company"), LEPERCQ CORPORATE INCOME FUND L.P., a
Delaware limited partnership (the "Partnership"), and XXXXXXX XXXXX GLOBAL
ALLOCATION FUND, INC., a Maryland corporation (the "Purchaser").
This Agreement is made pursuant to the Note Purchase
Agreement dated as of March 17, 1997 among the Company, the Partnership,
National Westminster Bank PLC, New York Branch, as placement agent and the
Purchaser (the "Purchase Agreement"), relating to, among other things, the sale
by the Partnership to the Purchaser of $25,000,000 aggregate principal amount of
the Partnership's 8% Exchangeable Redeemable Secured Notes due 2004 (the
"Securities"), exchangeable for shares of common stock, $0.001 par value, of the
Company (the "Common Stock"). In order to induce the Purchaser to enter into the
Purchase Agreement, the Company and the Partnership have agreed to provide to
the Purchaser and the Holders (as defined herein), among other things, the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the obligations of the Purchaser under the
Purchase Agreement.
In consideration of the foregoing, the parties hereby
agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have
the meanings specified:
Advice: See Section 8 hereof.
Affiliate: When used with reference to any Person, any
other Person directly or indirectly controlling, controlled by, or under direct
or indirect common control with, the referent Person or such other Person, as
the case may be. For the purposes of this definition, the term "control" when
used with respect to any specified Person means the power to direct or cause the
direction of management or policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "affiliated", "controlling" and "controlled" have meanings
correlative of the foregoing. Neither the Purchaser nor any of its Affiliates
shall, for purposes of this Agreement, the Purchase Agreement or the Indenture,
or the transactions contemplated hereby or thereby, be deemed to be an Affiliate
of the
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Company or of any of its subsidiaries or Affiliates solely by reason of
its ownership of the Securities.
Agreement: See the introductory paragraphs hereto.
Blackout Event: Any of the following events: (i) if the
Board determines 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,
or (ii) if the Company is in possession of material information which the Board
determines in good faith is not in the best interests of the Company to disclose
in a registration statement at such time.
Blackout Period: See Section 6(a) hereof.
Board: The Board of Directors of the Company.
Claim: See Section 10(a) hereof.
Common Equivalents: As of any date, shares of common stock
then outstanding or issuable upon the conversion, exchange or exercise of any
security convertible into, or exchangeable or exercisable for, shares of common
stock, whether or not such conversion, exchange or exercise right is then
exercisable; provided, however, that Common Equivalents shall not be deemed to
include any stock options granted to officers, employees or directors of the
Company by the Board or a committee thereof.
Company: See the introductory paragraphs hereto.
Demand Effectiveness Date: See Section 4(a) hereof.
Demand Period: See Section 4(a) hereof.
Demand Registration Statement: See Section 4(a) hereof.
Exchange Act: The Securities Exchange Act of 1934, as
amended, and the rules and regulation of the SEC promulgated thereunder.
Exchange Date: The earliest date on which the holder of
any Security shall have the right to exchange such Security for Exchange Shares.
Exchange Registration Statement: See Section 2(a) hereof.
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Exchange Shares: The shares of Common Stock delivered or
to be delivered, as applicable, in connection with the exchange of the
Securities pursuant to the Indenture.
Form S-3: Form S-3 of the SEC under the Securities Act or
any successor form.
General Partner: Lex GP-1, Inc., a Delaware corporation,
and a wholly-owned subsidiary of the Company.
Holdback Period: See Section 6(b) hereof.
Holder: Any registered holder of a Registrable Security or
Registrable Securities.
Indemnified Person: See Section 10(c) hereof.
Indemnifying Person: See Section 10(c) hereof.
Indenture: The indenture, of even date herewith, among the
Partnership, the Company, the General Partner and The Chase Manhattan Bank, as
trustee, pursuant to which the Securities are being issued, as amended or
supplemented from time to time in accordance with the terms thereof.
Inspectors: See Section 8(n) hereof.
Liquidated Damages: See Section 7(a) hereof.
Losses: See Section 10(a) hereof.
NASD: See Section 8(s) hereof.
Other Investors: Any holder of equity securities of the
Company or the Partnership, as applicable, or any securities convertible into or
exercisable or exchangeable for such equity securities, which holder is entitled
by written agreement with the Company or the Partnership, as the case may be,
entered into prior to the date of this Agreement to have some or all of such
securities included in a Registration Statement.
Participant: See Section 10(a) hereof.
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Partnership: See the introductory paragraphs hereof.
Person: An individual, trustee, corporation, partnership,
joint stock company, limited liability company, trust, unincorporated
association, union, business association, firm or other legal entity.
Piggyback Registration Statement: See Section 5(a) hereof.
Prospectus: The prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or supplemented by
any prospectus supplement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
Purchaser: See the introductory paragraphs hereto.
Purchase Agreement: See the introductory paragraphs
hereto.
Records: See Section 8(n) hereof.
Registrable Securities means any of (i) of the Securities,
(ii) the Exchange Shares and (iii) any other securities issued or issuable with
respect to any Exchange Shares by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization or otherwise. As to any particular Registrable
Securities held by a Holder, such securities shall cease to be Registrable
Securities when (i) a Registration Statement with respect to the exercise or
offering of such securities by the Holder hereof shall have been declared
effective under the Securities Act and such securities shall have been exchanged
or disposed of by such Holder pursuant to such Registration Statement, (ii) such
securities may at the time of determination be sold to the public pursuant to
Rule 144 without any restriction on the amount of securities which may be sold
by such Holder promulgated under the Securities Act without the lapse of any
further time or the satisfaction of any condition, (iii) such securities shall
have been otherwise transferred by such Holder and new certificates for such
securities not bearing a legend restricting further transfer shall have been
delivered by the Company or its transfer agent for the Common Stock, or by the
Partnership or its transfer agent for Securities, as applicable, and subsequent
disposition of such securities shall not require registration or qualification
under the Securities Act or any similar state law then in force, or (iv) such
securities shall have ceased to be outstanding.
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Registration Expenses: See Section 9(b) hereof.
Registration Statement: Any registration statement of the
Company or the Partnership, as applicable, filed with the SEC under the
Securities Act, including the Prospectus, all amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all material incorporated by reference or deemed to be incorporated by reference
in such registration statement.
Requisite Securities: Securities in an aggregate principal
amount of not less than $10,000,000.
Resale Shares: See Section 3(a) hereof.
Rule 144: Rule 144 promulgated under the Securities Act,
as such Rule may be amended from time to time, or any similar rule (other than
Rule 144A) or regulation hereafter adopted by the SEC providing for offers and
sales of securities made in compliance therewith resulting in offers and sales
by subsequent holders that are not affiliates of an issuer of such securities
being free of the registration and prospectus delivery requirements of the
Securities Act.
Rule 144A: Rule 144A promulgated under the Securities Act,
as such Rule may be amended from time to time, or any similar rule (other than
Rule 144) or regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated under the Securities Act,
as such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission or any
successor federal agency charged with the enforcement of the federal securities
laws.
Securities: See the introductory paragraphs hereto.
Securities Act: The Securities Act of 1933, as amended,
and the rules and regulations of the SEC promulgated thereunder.
Shelf Period: See Section 3 hereof.
Shelf Registration Statement: See Section 3(a) hereof.
Shelf Request: See Section 3 hereof.
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Subsidiary: Any corporations of which the Company owns
securities representing a majority of the outstanding voting power or any
partnership of which the Company (or a Subsidiary) is a general partner.
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture.
Underwritten Offering: A public offering of common stock,
or other securities convertible into, or exercisable or exchangeable for, common
stock that is underwritten on a firm commitment basis; provided that such
offering shall be exclusively for the account of any one or more of the Company,
the Purchaser (or any of its assignees) or Five Arrows Realty Securities L.L.C.,
a Delaware limited liability company (or any of its assignees).
Unregistered Exchange: See Section 3(a) hereof.
2. EXCHANGE REGISTRATION
(a) The Company shall:
(i) file with the SEC a Registration Statement on
an appropriate form (the "Exchange Registration
Statement") in respect of the Exchange Shares for a
primary exchange offering to be made on a continuous basis
by the Company pursuant to Rule 415; and
(ii) subject to Section 6 hereof, cause each such
Exchange Registration Statement to be declared effective
under the Securities Act no later than the Exchange Date.
The Company shall not permit any securities other than the Exchange Shares to be
included in the Exchange Registration Statement.
(b) The Company shall use its reasonable best efforts to
keep the Exchange Registration Statement continuously effective and, subject to
Section 6 hereof, to amend and supplement the Prospectus contained therein in
order to permit such Prospectus to be lawfully delivered until, in each case,
until no Securities remain outstanding.
(c) In connection with the Exchange Registration
Statement, the Company shall:
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(i) mail to each Holder a copy of the Prospectus
forming part of the Exchange Registration Statement;
(ii) otherwise comply in all material respects
with all applicable federal securities laws, rules and
regulations.
(d) Supplements and Amendments. Subject to Section 6
hereof, the Company shall promptly supplement and amend the Exchange
Registration Statement if required by the rules, regulations or instructions
applicable to the registration form used for such Exchange Registration
Statement, if required by the Securities Act, or if reasonably requested by the
Holders of a majority of the Registrable Securities exchangeable pursuant to
such Exchange Registration Statement.
3. DEMAND REGISTRATION - COMPANY
(a) Shelf Registration Statement. If any Holder shall have
exchanged Securities pursuant to the Indenture at a time when the Exchange
Registration Statement (i) is for any reason not effective, (ii) is subject to a
stop order issued by the SEC, or (iii) for any other reason beyond the control
of such Holder is unavailable for use by such Holder (an "Unregistered
Exchange"), then the Company shall file with the SEC within 30 days (60 days if
the Company is not then eligible to use Form S-3 in connection with a secondary
offering) after its receipt of a written request (a "Shelf Request") from such
Holder a "shelf" Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 covering all of the Exchange Shares (the
"Shelf Registration Statement") delivered in connection with such Unregistered
Exchange. The Shelf Registration Statement shall be on an appropriate form
permitting registration of such Exchange Shares (the "Resale Shares") for resale
by Holders in the manner or manners designated by them (including, without
limitation, one or more underwritten offerings).
Subject to Section 6 hereof, the Company shall use its
reasonable best efforts to cause the Shelf Registration Statement to be declared
effective under the Securities Act as soon as possible after the filing thereof
and to keep such Shelf Registration Statement continuously effective and to
amend and supplement the prospectus thereof in order to permit such Prospectus
to be lawfully delivered until, in each case, the earlier of (x) two years from
the date of effectiveness (the "Shelf Period") or (y) the date on which all
Resale Shares covered by the Shelf Registration Statement have been sold in the
manner set forth and as contemplated in the Shelf Registration Statement.
(b) Holdback. The Company agrees not to effect any public
sale or distribution of any shares of Common Stock, or any securities
convertible into or exchangeable or exercisable for Common Stock, during the 14
days prior to, and during
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the 90-day period beginning on, the effective date of a Registration Statement
relating to an underwritten public offering of Resale Shares, where the managing
underwriter or underwriters of such offering so requests.
(c) Supplements and Amendments. Subject to Section 6
hereof, the Company shall promptly supplement and amend the Shelf Registration
Statement if required by the rules, regulations or instructions applicable to
the registration form used for such Shelf Registration Statement, if required by
the Securities Act, or if reasonably requested by the Holders of Securities
exchangeable for a majority of the Registrable Securities covered by such Shelf
Registration Statement.
4. DEMAND REGISTRATION - PARTNERSHIP
(a) At any time after the date hereof while the Securities
shall qualify as Registrable Securities, and provided that the Partnership is
then subject to the reporting obligations of the Exchange Act and otherwise
eligible to register the sale of the Securities by such Holders on Form S-3,
Holders owning, individually or in the aggregate, not less than the Requisite
Securities may make a written request that the Partnership register the resale
of the Securities by such Holders under the Securities Act. The Partnership
shall file with the SEC and, subject to Section 6 hereof, use its reasonable
best efforts to cause to become effective under the Securities Act a
registration statement (the "Demand Registration Statement") with respect to
such Registrable Securities within 60 days of receipt of such written request
(such date, a "Demand Effectiveness Date") and to cause such Demand Registration
Statement to remain continuously effective under the Securities Act until such
Securities cease to qualify as Registrable Securities (a "Demand Period"). Any
such request will specify the number of Registrable Securities proposed to be
sold and will also specify the intended method of disposition thereof. The
Partnership shall give written notice of such registration request to all other
Holders of Registrable Securities issued by the Partnership within 15 days after
the receipt thereof. Within 20 days after receipt by any Holder of Registrable
Securities issued by the Partnership of such notice from the Partnership, such
Holder may request in writing that such Holder's Registrable Securities be
included in such Demand Registration Statement and the Partnership shall include
in such Demand Registration Statement the Registrable Securities of any such
Holder requested to be so included (the "Included Securities"). Each such
request by such other Holders shall specify the number of included Securities
proposed to be sold and the intended method of disposition thereof.
(b) No other securities issued by the Partnership except
(i) Registrable Securities held by any Holder, (ii) equity securities to be
offered and sold for the account of the Partnership and (iii) any equity
securities issued by the Partnership held by any Other Investor shall be
included in a Demand Registration. The inclusion of any such
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securities for the account of the Partnership or any other Person shall be on
the same terms as that of the Registrable Securities.
5. PIGGYBACK REGISTRATION
(a) If at any time the Company or the Partnership proposes
to file a Registration Statement with respect to an offering by the Company or
the Partnership, respectively, for its own account or for the account of any of
its security holders of any class of its common equity securities (other than
(i) a Registration Statement on Form S-4 or S-8 (or any substitute form that may
be adopted by the SEC), (ii) a Registration Statement filed in connection with
an exchange offer or offering of securities solely to the existing security
holders of the Company or the Partnership, as applicable or (iii) in connection
with a "roll-up" of partnerships which are Affiliates of the Company), then the
Company (or the Partnership, as applicable) shall give written notice of such
proposed filing to the Holders of Registrable Securities as soon as practicable
(but in no event fewer than 30 days before the anticipated filing date), and
such notice shall offer such Holders the opportunity to have included in a
Registration Statement (a "Piggyback Registration Statement") such number of
shares of Registrable Securities issued by the Company (or the Partnership, as
applicable), as each such Holder may request in writing not later than 20 days
after receipt of such written notice from the Company (or the Partnership, as
applicable), which request shall specify the Registrable Securities intended to
be disposed of by such selling Holder and the intended method of distribution
thereof. The Company or the Partnership, as applicable, shall use its
commercially reasonable efforts to cause the managing underwriter or
underwriters, if any, of such proposed offering to permit the Registrable
Securities requested to be included in a Piggyback Registration Statement to be
included on the same terms and conditions as any similar securities of the
Company or the Partnership, as applicable, included therein, subject to the
restrictions set forth in Section 5(b), and to permit the sale or other
disposition of such Registrable Securities in accordance with the intended
method of distribution thereof. Any selling Holder shall have the right, at any
time prior to the date of the effectiveness of a Piggyback Registration
Statement, to withdraw its request for inclusion of its Registrable Securities
in such Piggyback Registration Statement by giving written notice to the Company
or the Partnership, as applicable, of its request to withdraw. The Company or
the Partnership, as applicable, may withdraw a Piggyback Registration Statement
at any time prior to the time it becomes effective or the Company or the
Partnership, as applicable, may elect to delay the registration; provided,
however, that the Company or the partnership, as applicable, shall give prompt
written notice thereof to participating Holders. The Company or the Partnership,
as applicable, will pay all Registration Expenses in connection with each
registration of Registrable Securities requested pursuant to this Section , and
each Holder of Registrable Securities shall pay all underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or
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disposition of such Holder's Registrable Securities pursuant to a Piggyback
Registration Statement.
No registration effected under this Section 5, and no
failure to effect a registration under this Section 5, shall relieve the Company
or the Partnership of its obligation to effect a registration pursuant to
Section 2 or 3 hereof, respectively, and no failure to effect a registration
under this Section 5 and to complete the sale of securities registered
thereunder in connection therewith shall relieve the Company or the Partnership
of any other obligation under this Agreement.
(b) Priority in Piggyback Registration. In the event of a
registration pursuant to Section 5 hereof involving an underwritten offering, if
the managing underwriter or underwriters of such underwritten offering shall
have informed, in writing, the Company (or the Partnership, as applicable), and
the selling Holders requesting inclusion in such offering that in such
underwriter's or underwriters' opinion the total number of securities which the
Company (or the Partnership, as applicable), the selling Holders and any other
Persons desiring to participate in such registration intend to include in such
offering is such as to adversely affect the success of such offering, then the
Company (or the Partnership, as applicable) will be required to include in such
registration only the amount of securities which it is so advised should be
included in such registration. In such event:
(x) in cases involving a registration initiated by the
Company (or the Partnership, as applicable) for sale of securities
for its own account (and not involving any exercise of "demand"
registration rights), securities shall be included in such
offering in the following order of priority: (i) first, the
securities which the Company (or the Partnership, as applicable)
proposes to register for its own account, (ii) second, provided
that no securities sought to be included by the Company (or the
Partnership, as applicable) for its own account have been excluded
from such registration, the securities which have been requested
to be included in such registration by the Holders of Registrable
Securities and by Other Investors entitled to exercise piggyback
registration rights pursuant to contractual commitments of the
Company (or the Partnership, as applicable) (pro rata based on the
amount of securities held by such Holders and Other Investors),
and (iii) third, provided that no securities sought to be included
by the Company (or the Partnership, as applicable) for its own
account or by such Holders or Other Investors have been excluded
from such registration, securities sought to be included in such
registration for the account of any other Person;
(y) in all other cases, securities shall be included in
such offering in the following order of priority: (i) first, the
securities of any Person whose exercise of a "demand" registration
right pursuant to a contractual commitment of
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the Company (or the Partnership), as applicable) is the basis for
the registration (provided that if such Person is a Holder of
Registrable Securities, as among Holders of Registrable Securities
there shall be no priority and Registrable Securities sought to be
included by Holders of Registrable Securities shall be included
pro rata based on the amount of securities held by such Persons),
(ii) second, provided that no securities of such Person referred
to in the immediately preceding clause (i) have been excluded from
such registration, the securities which have been requested to be
included in such registration by the Holders of Registrable
Securities pursuant to Section 5(a) hereof and by Other Investors
entitled to exercise piggyback registration rights pursuant to
contractual commitments (pro rata based on the amount of
securities held by such Holders and Other Investors) and (iv)
fourth, provided that no securities of any such Holder or Other
Investor have been excluded from such registration, the securities
which the Company (or the Partnership, as applicable) or any other
Person proposes to register.
If, as a result of the provisions of this Section 5(b),
any selling Holder shall not be entitled to include in a Piggyback Registration
Statement all of the Registrable Securities that such selling Holder has
requested to be so included, such selling Holder may elect to withdraw his
request to include Registrable Securities in such Registration Statement.
6. BLACKOUT AND HOLDBACK EVENTS
(a) During any period of up to 120 days' duration
following the occurrence of a Blackout Event (a "Blackout Period"), neither the
Company nor the Partnership shall be required to file, or cause to be declared
effective, under the Securities Act any Registration Statement hereunder, and
the Holders will discontinue (i) the exchange of Securities pursuant to the
Exchange Registration Statement (but not pursuant to any Unregistered Exchange),
(ii) the disposition of Exchange Shares pursuant to a Shelf Registration
Statement and (iii) the disposition of Securities pursuant to a Demand
Registration Statement, as applicable.
(b) The Holders shall not, if requested (pursuant to a
timely written notice) by the managing underwriter or underwriters of an
Underwritten Offering, effect any public or private sale of any Common Stock,
including a sale pursuant to Rule 144 or Rule 144A, during the period ("Holdback
Period") beginning 14 days prior to, and ending 90 days after, the effective
date of the registration statement relating to such Underwritten Offering;
provided, however, that this Section 6(b) shall not preclude or in any way
restrict:
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(x) any sale of Securities by the Holders prior
to the date the Securities first become exchangeable for
Common Stock pursuant to the Indenture,
(y) any sale by any Holder who, immediately prior
to such sale, beneficially owns (directly or indirectly
through Affiliates or otherwise) less than 7.5% of the
Common Equivalents then outstanding,
(z) any sale by the Holders unless the Company
shall have obtained from each officer, director (excluding
non-employee directors) and beneficial owner of 7.5% or
more of the Common Stock then outstanding written
agreements applicable to such Underwritten Offering on
terms substantially similar to those of this Section 6(b).
The foregoing provisions shall not apply to any Holder if
such Holder is prevented by applicable statute or regulation from entering into
any such agreement; provided, however, that any such Holder shall undertake, in
its request to participate in any Underwritten Offering, not to effect any
public sale or distribution of any Registrable Securities commencing on the date
of sale of such Registrable Securities unless it has provided 45 days' prior
written notice of such sale or distribution to the underwriter or underwriters.
(c) The aggregate number of days during which one or more
blackout Periods or Holdback Periods are in effect shall not exceed 120 days
during any 12-month period.
(d) The Company shall promptly notify the Holders ion
writing of any decision not to file a Registration Statement or not to cause a
Registration Statement to be declared effective or to discontinue sales of
Registrable Securities pursuant to this Section 6, 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 exchanges or sales, as applicable, may resume.
7. LIQUIDATED DAMAGES
(a) The Company, the Partnership and the Purchaser agree
that the Holders of Registrable Securities will suffer damages if either (i) the
Company fails to fulfill its obligations under Section 2 hereof or (ii) the
Partnership fails to fulfill its obligations under Section 4 hereof and that it
would not be feasible to ascertain the extent of such damages with precision.
Accordingly, the Company and the Partnership agree, jointly and severally, to
pay, as liquidated damages ("Liquidated Damages") if for any reason the Exchange
Registration Statement or the Demand Registration Statement is not
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declared effective by the SEC on or prior to the Exchange Date or Demand
Effectiveness Date, as applicable, then, commencing on the day after such
Exchange Date or Demand Effectiveness Date, as applicable, Liquidated Damages
shall accrue on the principal amount of the Securities included or which should
have been included in such Registration Statement at a rate of 0.50% per annum
(which shall be in addition to the stated interest per annum for such events)
for the first 90 days immediately following the day after such Exchange Date or
Demand Effectiveness Date, as applicable, such Liquidated Damages rate
increasing by an additional 0.50% per annum at the beginning of each such
subsequent 980-day period; and
(b) The Company and the Partnership shall notify the
Trustee within one business day after each and every date on which an event
occurs in respect of which Liquidated Damages are required to be paid. Any
amounts of Liquidated Damages due pursuant to Section 7(a) will be payable in
cash semi-annually on each February 1 and August 1 (to the holders of record on
the January 15 and July 15 immediately preceding such dates), commencing with
the first such payment date occurring after any such Liquidated Damages begins
to accrue. The amount of Liquidated Damages will be determined by multiplying
the applicable Liquidated Damages rate by the principal amount of the
Registrable Securities, multiplied by a fraction, the numerator of which is the
number of days such Liquidated Damages rate was applicable during such period
(determined on the basis of a 360-day year comprised of twelve 30-day months
and, in the case of a partial month, the actual number of days elapsed), and the
denominator of which is 360.
8. REGISTRATION PROCEDURES
In connection with the filing of any Shelf Registration
Statement by the Company or any Demand Registration Statement by the
Partnership, the Company of the Partnership, as applicable, shall effect such
registrations to permit the sale of the securities covered thereby in accordance
with the intended method or methods of disposition thereof, and pursuant thereto
and in connection with any such Registration Statement the Company or the
Partnership, as applicable, shall:
(a) Prepare and file with the SEC, a Registration
Statement or Registration Statements as prescribed by Sections 3 or 4 hereof, as
applicable, and, subject to Section 6 hereof, use its reasonable best efforts to
cause each such Registration Statement to become effective and remain effective
as provided herein; provided, however, that, before filing any Registration
Statement or Prospectus or any amendments or supplements thereto, the Company or
the Partnership, as applicable, shall furnish to and afford the Holders of the
Registrable Securities covered by such Registration Statement, 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
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reference therein and all exhibits thereto) proposed to be filed (in each case
at least five business days prior to such filing). The Company or the
Partnership, as applicable, shall not file any Registration Statement or
Prospectus or any amendments or supplements thereto if the Holders of a majority
in aggregate amount of the Registrable Securities covered by such Registration
Statement, their counsel, or the managing underwriters, if any, shall reasonably
object in writing to any information contained therein.
(b) Subject to Section 6 hereof, prepare and file with the
SEC such amendments and post-effective amendments to each Shelf Registration
Statement or Demand Registration Statement, as the case may be, as may be
necessary to keep such Registration Statement continuously effective and usable
for the Shelf Period or the Demand Period, as the case may be; cause the related
Prospectus to be supplemented by any Prospectus supplement required by
applicable law, and as so supplemented to be filed pursuant to Rule 424 (or any
similar provisions then in force) promulgated under the Securities Act; and
comply with the provisions of the Securities Act and the Exchange Act applicable
to it with respect to the disposition of all securities covered by such
Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the selling Holders of Registrable Securities,
their counsel and the managing underwriters, if any, promptly (but in any event
within two business days), and confirm such notice in writing:
(i) when a Prospectus or any Prospectus
supplement or post-effective amendment has been filed,
and, with respect to a Registration Statement or any
post-effective amendment, when the same has become
effective under the Securities Act (including in such
notice a written statement that any Holder may, upon
request, obtain, at the sole expense of the Company or the
Partnership, as applicable, one conformed copy of such
Registration Statement or post-effective amendment
including financial statements and schedules, documents
incorporated or deemed to be incorporated by reference and
exhibits),
(ii) of the issuance by the SEC of any stop order
suspending the effectiveness of a Registration Statement
or of any order preventing or suspending the use of any
preliminary prospectus or the initiation of any
proceedings for that purpose,
(iii) if at any time when a prospectus is
required by the Securities Act to be delivered in
connection with sales of the Registrable Securities by the
Holders thereof the representations and warranties of the
Company or the Partnership, as applicable, contained in
any agreement
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(including any underwriting agreement), contemplated by
Section 8(n) hereof cease to be true and correct in all
material respects,
(iv) of the receipt by the Company or the
Partnership of any notification with respect to the
suspension of the qualification or exemption from
qualification of a Registration Statement or any of the
Registrable Securities or the Resale Shares to be sold by
any Holder thereof for offer or sale in any jurisdiction,
or the initiation or threatening of any proceeding for
such purpose,
(v) of the happening of any event, or any
information becoming known that makes any statement made
in such Registration Statement or related Prospectus or
any document incorporated or deemed to be incorporated
therein by reference untrue in any material respect or
that requires the making of any changes in or amendments
or supplements to such Registration Statement, Prospectus
or documents so that, in the case of the Registration
Statement, it will not contain any untrue statement or a
material fact or omit to state any material fact required
to be stated therein or necessary to make the statements
therein, not misleading, and that in the case of the
Prospectus, it will not contain any untrue statement of a
material fact or omit to state any material fact required
to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they
were made, not misleading, and
(vi) of the determination by the Company or the
Partnership, as applicable, that a post-effective
amendment to a Registration Statement would be
appropriate.
(d) Use its reasonable best efforts to prevent the
issuance of any order suspending the effectiveness of a Registration Statement
or of any order preventing or suspending the use of a Prospectus or suspending
the qualification (or exemption from qualification) of any of the Registrable
Securities, for sale in any jurisdiction, and, if any such order is issued, to
use its reasonable best efforts to obtain the withdrawal of any such order at
the earliest practicable moment.
(e) If requested by the managing underwriter or
underwriters (if any), or the Holders of a majority in aggregate amount of the
Registrable Securities being sold in connection with an underwritten offering
(i) promptly incorporate in a prospectus supplement or post-effective amendment
such information as the managing underwriter or underwriters (if any), such
Holders, or counsel for any of them determine is reasonably necessary to be
included therein, and (ii) make all legally required filings of such prospectus
supplement or such post-effective amendment as soon as practicable after the
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Company or the Partnership, as the case may be, has received notification of the
matters to be incorporated in such prospectus supplement or post-effective
amendment.
(f) Furnish to each selling Holder of Registrable
Securities and to their respective counsel and each managing underwriter, if
any, at the sole expense of the Company or the Partnership, as applicable, one
conformed copy of the Registration Statement or Registration Statements and each
post-effective amendment thereto, including financial statements and schedules,
and, if requested, all documents incorporated or deemed to be incorporated
therein by reference and all exhibits.
(g) Deliver to each selling Holder of Registrable
Securities, such Holder's counsel, and the underwriters, if any, at the sole
expense of the Company or the Partnership, as applicable, as many copies of the
Prospectus or Prospectuses (including each form of preliminary prospectus) and
each amendment or supplement thereto and any documents incorporated by reference
therein as such Persons may reasonably request; and, subject to the last
paragraph of this Section 8, the Company and the Partnership hereby consent to
the use of such Prospectus and each amendment or supplement thereto by each of
the selling Holders of Registrable Securities and the underwriters or agents, if
any, and dealers (if any), in connection with the offering and sale of the
Registrable Securities covered by, pursuant to, such Prospectus and any
amendment or supplement thereto.
(h) Prior to any public offering of Registrable
Securities, to use its reasonable best efforts to register or qualify, and to
cooperate with the selling Holders of Registrable Securities, the managing
underwriter or underwriters, if any, and their respective counsel in connection
with the registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or blue sky laws of such jurisdictions within the United States as
any selling Holder, or the managing underwriter or underwriters reasonably
request; keep each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required to be kept
effective and do any and all other acts or things reasonably necessary or
advisable to enable the disposition in such jurisdictions of the Registrable
Securities covered by the applicable Registration Statement; provided, however,
that neither the Company nor the Partnership shall be required to (A) qualify
generally to do business in any jurisdiction where it is not then so qualified,
or (B) take any action that would subject it to general service of process in
any such jurisdiction where it is not then so subject.
(i) Cooperate with the reselling Holders of Registrable
Securities and the managing underwriter or underwriters, if any, to facilitate
the timely preparation and delivery of certificates representing Registrable
Securities to be sold, which certificates shall not bear any restrictive legends
and shall be in a form eligible for deposit with The
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Depository Trust Company (in the case of the Securities) or in compliance with
any applicable rules of a stock exchange on which the Common Stock is then
listed (in the case of the Exchange Shares or the Resale Shares); and enable
such Registrable Securities to be in such denominations and registered in such
names as the managing underwriter or underwriters, if any, or Holders may
request.
(j) Use its reasonable best efforts to cause the
Registrable Securities covered by the Registration Statement to be registered
with or approved by such other governmental agencies or authorities as may be
reasonably necessary to enable the seller or sellers thereof or the underwriter
or underwriters, if any, to consummate the disposition of such Registrable
Securities, except as may be required solely as a consequence of the nature of
such selling Holder's business, in which case the Company and the Partnership
will cooperate in all reasonable respects with the filing of such Registration
Statement and the granting of such approvals.
(k) Upon the occurrence of any event contemplated by
paragraph 6(c)(v) or 6(c)(vi) hereof, as promptly as practicable prepare and
(subject to Section 8(a) hereof) file with the SEC, at the sole expense of the
Company or the Partnership, as applicable, a supplement of post-effective
amendment to the Registration Statement or a supplement of the related
Prospectus or any document incorporated or deemed to be 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, any such
Prospectus will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(l) Prior to the effective date of the first Demand
Registration Statement relating to the Registrable Securities which constitute
debt, (i) provide the Trustee with certificates for such Registrable Securities
in a form eligible for deposit with The Depository Trust Company and (ii)
provide a CUSIP number for the Registrable Securities.
(m) In connection with any underwritten offering of
Registrable Securities, enter into an underwriting agreement as is customary in
underwritten offerings of debt securities similar to the Securities or of common
equity similar to the Common Stock, as applicable, and take all such other
actions as are reasonably requested by the managing underwriter or underwriters
in order to expedite or facilitate the registration or the disposition of such
Registrable Securities and, in such connection,
(i) make such representations and warranties to,
and covenants with, the underwriters with respect to the
business of the Company and its Subsidiaries or the
Partnership, as applicable (including any acquired
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business, properties or entity, if applicable), and the
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 of securities
similar to the Securities or of common equity similar to
the Common Stock, as applicable, and confirm the same in
writing if and when requested;
(ii) obtain the written opinions of counsel to
the Company or the Partnership, as applicable, in form,
scope and substance reasonably satisfactory to the
managing underwriter or underwriters, addressed to the
underwriters covering the matters customarily covered in
opinions requested in underwritten offerings and such
other matters as may be reasonably requested by the
managing underwriter or underwriters;
(iii) obtain "comfort" letters and updates
thereof in form, scope and substance reasonably
satisfactory to the managing underwriter or underwriters
from the independent certified public accountants of the
Company (and, if necessary, any other independent
certified public accountants of any Subsidiary or of any
business acquired by the Company for which financial
statements and financial data are, or are required to be,
included or incorporated by reference in the Registration
Statement) or the Partnership, as applicable, 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 the managing underwriter or underwriters as permitted
by the Statement on Auditing Standards No. 72; 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 9 hereof (or such other provisions and procedures
acceptable to Holders of a majority in aggregate amount of
Registrable Securities covered by such Registration
Statement and the managing underwriter or underwriters or
agents) with respect to all parties to be indemnified
pursuant to said Section . The above shall be done at each
closing under such underwriting agreement, or as and to
the extent required thereunder.
(n) Make available for inspection by any underwriter
participating in any such disposition of Registrable Securities, if any, and any
attorney, accountant or other agent retained by any such underwriter
(collectively, the "Inspectors"), at the
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offices where normally kept, during reasonable business hours, all financial and
other records, pertinent corporate documents and instruments of the Company and
its Subsidiaries or the Partnership, as applicable (collectively, the
"Records"), as shall be reasonably necessary to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act, and cause
the officers, directors and employees of the Company and its Subsidiaries, or
the Partnership, as applicable, to supply all information reasonably requested
by any such Inspector in connection with such Registration Statement.
(o) Solely in the case of a Demand Registration Statement,
cause the Indenture to be qualified under the TIA not later than the effective
date of the Demand Registration Statement; and execute, and use its best efforts
to cause the trustee under the Indenture to execute, all forms and documents as
may be required to be filed with the SEC to enable such Indenture to be so
qualified in a timely manner.
(p) Comply with all applicable rules and regulations of
the SEC and make generally available to its securityholders earnings 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 12- month period (or 90 days after the end of
any 12-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 or the Partnership, as applicable, after the
effective date of a Registration Statement, which statements shall cover said
12-month periods.
(q) Cooperate with each seller of Registrable Securities
covered by any 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
National Association of Securities Dealers, Inc. (the "NASD").
(r) Use its reasonable best efforts to cause all
Registrable Securities relating to any Shelf Registration Statement to be listed
on each securities exchange, if any, on which similar securities issued by the
Company are then listed.
(s) Use its reasonable best efforts to take all other
steps reasonably necessary or advisable to effect the registration of the
Registrable Securities covered by a Registration Statement.
The Company or the Partnership, as applicable, may require
each seller of Registrable Securities as to which any registration is being
effected to furnish to the
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Company or the Partnership, as applicable, such information regarding such
seller and the distribution of such Registrable Securities as the Company or the
Partnership, as applicable, may, from time to time, reasonably request. The
Company or the Partnership, as applicable, may, from time to time, reasonably
request. The Company or the Partnership may exclude from such registration the
Registrable Securities of any seller so long as such seller fails to furnish
such information within a reasonable time after receiving such request. Each
seller as to which any Shelf Registration Statement is being effected agrees to
furnish promptly to the Company or the Partnership, as applicable, all
information required to be disclosed in order to make the information previously
furnished to the Company or the Partnership, as applicable, by such seller not
materially misleading.
If any such Registration Statement refers to any Holder by
name or otherwise as the holder of any securities of the Company or the
Partnership, then such Holder shall have the right to require (i) the insertion
therein of language, in form and substance reasonably satisfactory to such
Holder, to the effect that the holding by such Holder of such securities is not
to be construed as a recommendation by such Holder of the investment quality of
the securities covered thereby and that such holding does not imply that such
Holder will assist in meeting any future financial requirements of the Company
or the Partnership, or (ii) in the event that such reference to such Holder by
name or otherwise is not required by the Securities Act or any similar federal
statute then in force, the deletion of the reference to such Holder in any
amendment or supplement to the Registration Statement filed or prepared
subsequent to the time that such reference ceases to be required.
Each Holder of Registrable Securities agrees by
acquisition of such Registrable Securities that, upon actual receipt of any
notice from the Company or the Partnership, as applicable, of the happening of
any event of the kind described in Section 8(c)(ii), 8(c)(iv), 8(c)(v), or
8(c)(vi) hereof, such Holder will forthwith discontinue disposition of such
Registrable Securities covered by such Registration Statement or Prospectus to
be sold by such Holder until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 8(k) hereof, or until
it is advised in writing (the "Advice") by the Company or the Partnership, as
applicable, that the use of the applicable Prospectus may be resumed, and has
received copies of any amendments or supplements thereto. In the event the
Company or the Partnership shall give any such notice, each of the Shelf Period
and the Demand Period shall be extended by the number of days during such
periods from and including the date of the giving of such notice to and
including the date when each seller of Registrable Securities covered by such
Registration Statement, as the case may be, shall have received (x) the copies
of the supplemented or amended Prospectus contemplated by Section 8(k) hereof or
(y) the Advice.
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9. REGISTRATION EXPENSES
(a) All Registration Expenses incident to the compliance
with this Agreement by the Company shall be borne by the Company. All
Registration Expenses incident to the compliance with this Agreement by the
Partnership shall be borne jointly and severally by the Partnership and the
Company. Notwithstanding the foregoing, the sellers of the Registrable
Securities being registered shall pay all (i) brokerage or underwriting fees,
discounts and commissions attributable to the sale of such Registrable
Securities, (ii) the fees and disbursements of any counsel or other advisors or
experts retained by such sellers (severally or jointly), other than the counsel
and experts specifically referred to in Section 9(b) hereof, (iii) transfer
taxes on resale of any of the Registrable Securities by such sellers and (iv)
any advertising expenses incurred by or on behalf of such sellers in connection
with any offers they may make.
(b) For purposes of this Agreement, "Registration
Expenses" shall mean all fees and expenses incident to the compliance with this
Agreement by the Company or the Partnership, as the case may be (other than fees
and expenses referred to in the second sentence of Section 9(a) hereof),
including, without limitation, (i) all registration and filing fees, including,
without limitation, (A) and SEC or NASD filing fees and (B) fees and expenses of
compliance with state securities or blue sky laws (including, without
limitation, reasonable fees and disbursements of counsel in connection therewith
but limited to one counsel for all of the Sellers of Registrable Securities),
(ii) printing expenses, including, without limitation, expenses of printing
certificates for Registrable Securities in a form eligible for deposit with The
Depository Trust Company and of printing prospectuses if the printing of
prospectuses is requested by the managing underwriter or underwriters, if any,
or by the Holders of a majority of the Registrable Securities included in any
Registration Statement, as the case may be, (iii) messenger, telephone and
delivery expenses incurred by the Company, (iv) all fees and disbursements of
counsel for the Company or the Partnership and fees and disbursements of one
special counsel for all of the sellers of Registrable Securities, (v) fees and
expenses of all other Persons retained by the Company or the Partnership
including annual or special audit and "comfort" letters, (vi) stock exchange
listing fees and expenses, if any, and (vii) the expenses relating to printing
and distributing all Registration Statements, underwriting agreements,
indentures and any other documents necessary in order to comply with this
Agreement.
10. INDEMNIFICATION AND CONTRIBUTION
(a) The Company and the Partnership jointly and severally
agree to identify and hold harmless each Holder of Registration Securities, the
officers, directors and investment advisor, if any, of each such Person, and
each Person, if any, who controls any such Person within the meaning of either
Section 15 of the Securities Act or
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Section 20 of the Exchange Act (each, a "Participant"), from and against any and
all losses, claims, damages and liabilities (collectively, "Losses") (including,
without limitation, the reasonable legal fees and other expenses actually
incurred in connection with any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand (an "Claim")) caused
by, arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement (or any
amendment thereto) or Prospectus (as amended or supplemented from time to time)
or any preliminary prospectus, or caused by, arising out of or based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the case of the
Prospectus in light of the circumstances under which they were made, not
misleading, except insofar as such Losses are caused by any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with information relating to any Participant furnished to the Company
or the Partnership, as applicable, in writing by such Participant expressly for
use therein; provided, however, that the Company will not be liable if such
untrue statement or omission or alleged untrue statement or omission was
contained or made in any preliminary prospectus and corrected in the Prospectus
or any amendment or supplement thereto and the Prospectus does not contain any
other untrue statement or omission or alleged untrue statement or omission of a
material fact that was the subject matter of the related proceeding and any such
Indemnifiable Loss suffered or incurred by the Participants resulted from any
Claim by any Person who purchased Registrable Securities which are the subject
thereof from such Participant and it is established in the related proceeding
that such Participant failed to deliver or provide a copy of the Prospectus (as
amended or supplemented) to such Person with or prior to the confirmation of the
sale of such Registrable Securities sold to such Person if required by
applicable law, unless such failure to deliver or provide a copy of the
Prospectus (as amended or supplemented) was a result of noncompliance by the
Company or the Partnership with this Agreement.
(b) Each Participant agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement, the Partnership, any General Partner, any directors
of the General Partner, any officers of the General Partner who sign a
Registration Statement and each Person who controls the Company or the
Partnership within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act to the same extent as the foregoing indemnity from the
Company and the Partnership to each Participant, but only with the reference to
information relating to such Participant expressly for use in such Registration
Statement or Prospectus, any amendment or supplement thereto, or any preliminary
prospectus. The liability of any Participant under this paragraph shall in no
event exceed the proceeds received by such Participant from sales of Registrable
Securities giving rise to such obligations.
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(c) If any Claim shall be brought or asserted against any
Person in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such Person (the "Indemnified Person") shall promptly
notify the Person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person shall retain counsel reasonably
satisfactory to the Indemnified Person to represent the Indemnified Person and
any others the Indemnifying Person may reasonably designate in such Claim and
shall pay the reasonable fees and expenses actually incurred by such counsel
related to such proceeding; provided, however, that the failure to so notify the
Indemnifying Person shall not relieve it of any obligation or liability which it
may have hereunder or otherwise. In any such proceeding, any Indemnified Person
shall have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary, (ii) the Indemnifying Person shall have failed within a reasonable
period of time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person or any affiliate and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between
them. The Indemnifying Person shall not, in connection with any one such
proceeding or separate but substantially similar related proceedings in the same
jurisdiction arising out of the same general allegations, be liable for the fees
and expenses of more than one separate firm (in addition to any local counsel)
for all Indemnified Persons, and all such fees and expenses shall be reimbursed
promptly as they are incurred. If the Company shall be the Indemnifying Person,
any such separate firm for the Indemnified Persons shall be designated in
writing by Participants who sold a majority in interest of Registrable
Securities sold by all such Participants and reasonably acceptable to the
Company or the Partnership, as applicable. If the Company or the Partnership
shall be the Indemnified Person, any such separate firm for the Company, its
directors, its officers, the Partnership, any General Partner, any directors of
the General Partner, any officers of the General Partner who sign a Registration
Statement and such control Persons of the Company or the Partnership, as
applicable, shall be designated in writing by the Company or the Partnership, as
applicable. No Indemnifying Person shall be liable for any settlement of any
proceeding effected without its prior written consent (which consent shall not
be unreasonably withheld or delayed), but if settled with such consent or if
there be a final judgment for the plaintiff for which the Indemnified Person is
entitled to indemnification pursuant to this Agreement, the Indemnifying Person
shall indemnify and hold harmless each Indemnified Person from and against any
loss or liability by reason of such settlement or judgment. No Indemnifying
Person shall, without the prior written consent of the Indemnified Persons
(which consent shall not be unreasonably withheld or delayed), effect any
settlement or compromise of any pending or threatened proceeding in respect of
which any Indemnified Person is or could have been a party, or indemnity could
have been sought hereunder by such Indemnified
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Person, unless such settlement involves only the payment of money damages that
are actually paid by the Indemnifying Person or includes an unconditional
written release of such Indemnified Person, in form and substance reasonably
satisfactory to such Indemnified Person, from all liability on claims that are
the subject matter of such proceeding.
(d) If the Indemnification provided for in the first and
second paragraphs of this Section 10 is for any reason unavailable to, or
insufficient to hold harmless, an Indemnified Person in respect of any Losses,
then each Indemnifying Person under such paragraphs, in lieu of indemnifying
such Indemnified Person thereunder and in order to provide for just and
equitable contribution, shall contribute to the amount paid or payable by such
Indemnified Person as a result of such Losses, in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Person or Persons
on the one hand and the Indemnified Person or Persons on the other in connection
with the statements or omissions or alleged statements or omissions that
resulted in such Losses (or actions in respect thereof) as well as any other
relevant equitable considerations. The relative fault of the parties 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 Indemnifying Person on
the one hand or such Indemnified Person, as the case may be, on the other, the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission, and any other equitable
considerations appropriate in the circumstances.
(e) The parties agree that it would not be just and
equitable if contribution pursuant to this Section 10 were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result of
the Losses referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any reasonable legal or
other expenses actually incurred by such Indemnified Person in connection with
investigating or defending any such Claim. Notwithstanding the provisions of
this Section 11, in no event shall a Participant be required to contribute any
amount in excess of the amount by which proceeds received by such Participant
from sales of Registrable Securities exceeds the amount of any damages that such
Participant has otherwise been required to pay or has paid by reason of such
untrue or alleged untrue statement or omission or alleged omission. No Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
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(f) Any Losses for which an indemnified party is entitled
to indemnification or contribution under this Section shall be paid by the
Indemnifying Person to the Indemnified Person as such Losses are incurred. The
indemnity and contribution agreements contained in this Section 8 and the
representations and warranties of the Company and the Partnership set forth in
this Agreement shall remain operative and in full force and effect regardless of
(i) any investigation made by or on behalf of any of the Purchaser, any Holder,
any person who controls the Purchaser or any Holder, or any officers or
directors of the Purchaser or such Holder, and (ii) any termination of this
Agreement.
(g) The indemnity and contribution covenants contained in
this Section 8 are in addition to any liability which any Indemnifying Person
may otherwise have to any Indemnified Person.
11. RULES 144 AND 144A
(a) The Company will file the reports required to be filed
by it under the Exchange Act in a timely manner in accordance with the
requirements of the Exchange Act and, if at any time the Company is not required
to file such reports, it will, upon the request of any Holder of Registrable
Securities issued by the Company, make available such information necessary to
permit sales pursuant to Rule 144A. The Company will also take such further
action as any Holder of Registrable Securities issued by the Company may
reasonably request, 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 Rule 144(k) and Rule
144A.
(b) The Partnership will file the reports, if any,
required to be filed by it under the Exchange Act in a timely manner in
accordance with the requirements of the Exchange Act and, if at any time the
Partnership is not required to file such reports, it will, upon the request of
any Holder or Registrable Securities issued by the Partnership, make available
such information necessary to permit sales pursuant to Rule 144A. The
Partnership will also take such further action as any Holder or Registrable
Securities issued by the Partnership 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 Rule 144(k) and Rule 144A (it being expressly understood
that the foregoing shall not create any obligation on the part of the
Partnership to file periodic or other reports under the Exchange Act at any time
that it is not then required to do so).
12. UNDERWRITTEN REGISTRATIONS
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If any of the Registrable Securities covered by any
Registration Statement are to be sold in an underwritten offering which the
Holders have initiated, the investment banker or investment bankers and manager
or managers that will manage the offering will be selected by the Holders of a
majority in aggregate amount (or, in the case of equity securities, a majority
in number) of such Registrable Securities included in such offering and
reasonably acceptable to the Company.
No Holder of Registrable Securities may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements and consistent with the terms of this Agreement.
13. MISCELLANEOUS
(a) Remedies. Each of the Company and the Partnership
agrees that monetary damages (including the liquidated damages contemplated
hereby) would not be adequate compensation for any loss incurred by reason of a
breach by it 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.
(b) No Inconsistent Agreements. Neither the Company nor
the Partnership has, as of the date hereof, and neither the Company nor the
Partnership shall, after the date of this Agreement without the express written
consent of the Holders of a majority in principal amount (or in the case of
equity securities, a majority in number) of the Registrable Securities, enter
into any agreement with respect to any of its securities that is inconsistent
with the rights granted to the Holders of Registrable Securities in this
Agreement or otherwise conflicts with the provisions hereof, including without
limitation any agreement with respect t;o the securities of the Company, 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 an Registration Statement prepared by the Company. The rights
granted to the Holders of Registrable Securities hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders of
the other outstanding securities of the Company or the Partnership.
(c) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented and waivers or consents
to departures from the provisions hereof may not be given, otherwise than with
the prior written consent of (I) the Company and the Partnership and (II) the
Holders of not less than a majority in aggregate amount of the then-outstanding
Registrable Securities; provided, however, that
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Section 8 and this Section 13(c) may not be amended, modified or supplemented
without the prior written consent of each Holder (including any person who was a
Holder of Registrable Securities disposed of pursuant to any Registration
Statement) affected by any such amendment, modification or supplement.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders of Registrable Securities whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect, impair,
limit or compromise the rights of other Holders of Registrable Securities may be
given by Holders of at least a majority in aggregate amount of the Registrable
Securities being sold by such Holders pursuant to such Registration Statement.
(d) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail (registered or certified, return receipt requested), or air
courier guaranteeing overnight delivery.
1. If to the Purchaser, as follows:
Xxxxxxx Xxxxx Global Allocation Fund, Inc.
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxx X. X'Xxxxxxx
2. If to any other Holder, at the most current address of
such Holder set forth on the records of the Trustee or the
transfer agent of the Company, as applicable.
3. If to the Company, as follows:
Lexington Corporate Properties, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: X. Xxxxxx Eglin
4. If to the Partnership, in care of the Company at its
address indicated above.
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; and on the next business day, if timely delivered to an air courier
guaranteeing overnight delivery.
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(e) Successors. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties hereto,
and the Holders; provided, however, that this Agreement shall not inure to the
benefit of, or be binding upon, a successor or assign of a Holder unless and to
the extent such successor or assign holds Registrable Securities.
(f) Counterparts. This Agreement may be executed in
multiple 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.
(g) Headings. The headings in this Agreement are for
inconvenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) Governing Law; Jurisdiction. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
AS APPLIED TO CONTRACTS MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
Each of the parties hereto irrevocably and
unconditionally: (i) submits itself and its property in any legal action or
proceeding relating to this Agreement or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive jurisdiction of the courts of
the State of New York and the courts of the United States of America for the
Southern District of New York, and appellate courts thereof, and consents and
agrees to such action or proceeding being brought in such courts; and (ii)
waives any objection that it may now or hereafter have to the venture of any
such action or proceeding was brought in any inconvenient court and agrees not
to plead or claim the same.
(i) Severability. In the event that any one or more of the
provisions 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.
(j) Securities Held by the Company or Its Affiliates.
Whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities held by the
Company or its affiliates (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
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(k) Third Party Beneficiaries. Holders of Registrable
Securities are intended third party beneficiaries of the agreements made
hereunder between the Company and the Partnership on the one hand and the
Purchaser on the other hand this Agreement and shall have the right to enforce
this Agreement to the extent they deem such enforcement necessary or advisable
to protect their rights hereunder.
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(l) Entire Agreement. This Agreement, together with the
Purchase Agreement, the Indenture and the other agreements among the parties of
even date herewith or therewith, 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. 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 or the
Partnership with respect to the Registrable Securities. This Agreement
supersedes all prior agreements and understandings among the parties with
respect to such subject matter.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
LEXINGTON CORPORATE PROPERTIES, INC.
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
LEPERCQ CORPORATE INCOME FUND L.P.
By: LEX GP-1, Inc., its General Partner
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
XXXXXXX XXXXX GLOBAL ALLOCATION FUND,
INC.
By:
-----------------------------------
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Name:
-----------------------------------
Title:
-----------------------------------
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(l) Entire Agreement. This Agreement, together with the
Purchase Agreement, the Indenture and the other agreements among the parties of
even date herewith or therewith, 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. 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 or the
Partnership with respect to the Registrable Securities. This Agreement
supersedes all prior agreements and understandings among the parties with
respect to such subject matter.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
LEXINGTON CORPORATE PROPERTIES, INC.
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
LEPERCQ CORPORATE INCOME FUND L.P.
By: LEX GP-1, Inc., its General Partner
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
XXXXXXX XXXXX GLOBAL ALLOCATION FUND,
INC.
By:
-----------------------------------
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Name:
-----------------------------------
Title:
-----------------------------------
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