AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
Exhibit 10.3
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT
This AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (the “Agreement”) is made and entered
into as of November 3, 2008, between Lexington Realty Trust, a Maryland real estate investment
trust (the “Company”), and Vornado Realty L.P. and Vornado LXP LLC (together with their respective
successors and permitted assigns, including any subsidiaries of Vornado Realty L.P. that hold
limited partnership units of The Lexington Master Limited Partnership as of the date hereof, the
“Shareholder”).
WHEREAS, Vornado Realty L.P. previously entered into a Registration Rights Agreement as of November
7, 2005 with Xxxxxxx Realty Trust, Inc., which agreement was assigned to, and assumed by, the
Company by Assignment and Assumption dated as of December 31, 2006 (the “Original Agreement”).
WHEREAS, Vornado Realty L.P. is the holder of limited partnership units (“Partnership Units”) of
The Lexington Master Limited Partnership (the “Operating Partnership”), a Delaware limited
partnership of which the Company is the general partner;
WHEREAS, such units may be redeemed for the Company’s Common Shares, at any time (the “Original
Shares”);
WHEREAS, the Company previously granted to Vornado Realty L.P. the registration rights described in
the Original Agreement relating to the issuance and the resale of the Common Shares issuable upon
redemption of the Partnership Units;
WHEREAS, pursuant to the Original Agreement the Company has filed a Shelf Registration Statement
that is currently effective in connection with the Original Shares; and
WHEREAS, in connection with the Shareholder’s acquisition of 8,000,000 Common Shares (the
“Additional Shares”) previously owned by AP LXP Holdings LLC, an affiliate of Apollo Real Estate
Investment Fund III, L.P (“Apollo”), the Company has agreed to extend the registration rights in
the Original Agreement to the Additional Shares.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and other
good and valid consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties to this Agreement hereby agree to amend and restate the Original Agreement as follows to
(i) reflect the Company’s obligation to amend the Shelf Registration Statement to include the
Additional Shares, and (ii) clarify certain provisions of the Original Agreement.
1. CERTAIN DEFINITIONS.
In addition to the terms defined elsewhere in this Agreement, the following terms shall have
the following meanings:
“Affiliate” of any Person means any other Person that directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common control with, such Person.
The term “control” (including the terms “controlled by” and “under common control with”) as used
with respect to any Person means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such Person, whether through the ownership of
voting securities, by contract or otherwise.
“Agreement” means this Amended and Restated Registration Rights Agreement, including all
amendments, modifications and supplements and any exhibits or schedules to any of the foregoing,
and shall refer to this Amended and Restated Registration Rights Agreement as the same may be in
effect at the time such reference becomes operative.
“Business Day” means any day on which commercial banks are open for business in New York, New
York and on which the New York Stock Exchange or such other exchange as the Common Shares is listed
is open for trading.
“Common Shares” means the common shares of beneficial interest, par value $0.0001 per share,
of the Company.
“Conversion Shares” means any of the Common Shares issued or issuable upon redemption of the
Partnership Units.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Holder” means any holder of record of Registrable Common Shares (as defined below). For
purposes of this Agreement, the Company may deem and treat the registered holder of Registrable
Common Shares as the Holder and absolute owner thereof, and the Company shall not be affected by
any notice to the contrary.
“Operating Partnership” means The Lexington Master Limited Partnership, a Delaware limited
partnership, and any successor thereto.
“Other Registration Rights Agreement” means that certain Registration Rights Agreement, dated
November 7, 2005, by and between the Company and Apollo.
“Partnership Units” means partnership units of the Operating Partnership.
“Person” means any individual, sole proprietorship, partnership, limited liability company,
joint venture, trust, incorporated organization, association, corporation, institution, public
benefit corporation, government (whether federal, state, county, city, municipal or otherwise,
including, without limitation, any instrumentality, division, agency, body or department thereof)
or any other entity.
“Prospectus” means the prospectus or prospectuses included in any Registration Statement, as
amended or supplemented by any prospectus supplement with respect to the terms of the offering of
any portion of the Registrable Common Shares covered by such Registration Statement and by all
other amendments and supplements to the prospectus, including any preliminary prospectus or
supplement, post-effective amendments and all material incorporated by reference in such prospectus
or prospectuses.
“Registrable Common Shares” means (x) the Additional Shares held or to be acquired by the
Shareholder on or as of the date of this Agreement and (y) those Conversion Shares issued or
issuable to the Shareholder upon redemption of those 8,149,594 Partnership Units currently held by
the Shareholder, if the Shareholder were to receive or receives Conversion Shares upon redemption
of such Partnership Units, including any securities issued in respect of such securities by reason
of or in connection with any exchange for or replacement of such securities or any stock dividend,
stock distribution, stock split, purchase in any rights offering or in connection with any
combination of shares, recapitalization, merger or consolidation, or any other equity securities
issued pursuant to any other pro rata distribution with respect to the Common Shares, until, in the
case of any such securities, the earliest to occur of (i) the date on which its resale has been
registered effectively pursuant to the Securities Act and disposed of in accordance with the
Registration Statement relating to it or (ii) the date on which either it is distributed to the
public pursuant to Rule 144 or is saleable without restriction pursuant to Rule 144(k) promulgated
by the Commission pursuant to the Securities Act as confirmed in a written opinion of counsel to
the Company addressed to the Holder. All references in this Agreement to a “Holder” or “Holder of
Registrable Common Shares” shall include the Shareholder(s) holding Additional Shares and the
holder or holders of the Partnership Units to the extent of the Conversion Shares then underlying such Partnership
Units. For purposes of determining the number of Registrable Common Shares held by a Holder and
the number of Registrable Common Shares outstanding, for purposes of this Agreement (including the
definition of “Holder”) but not for any other purpose, any holder of record of Partnership Units
shall be deemed to be a
Holder of the number of Conversion Shares issuable upon conversion of such
Partnership Units and all such Conversion Shares shall be deemed to be outstanding Registrable
Common Shares.
“Registration Statement” means any registration statement of the Company which covers any of
the Registrable Common Shares pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such Registration Statement, including post-effective
amendments, all exhibits and all materials incorporated by reference in such Registration
Statement.
“Rule 415” means Rule 415 promulgated by the SEC pursuant to the Securities Act, as such Rule
may be amended from time to time, or any similar Rule or regulation hereafter adopted by the
Commission as a replacement thereto having substantially the same effect as such rule.
“SEC” means the Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended.
“Shelf Registration Statement” shall have the meaning set forth in Section 4 hereof.
“underwritten registration or underwritten offering” means a registration or offering in which
securities of the Company are sold to underwriters for reoffering to the public.
2. AUTOMATIC AND DEMAND REGISTRATIONS.
(a) Issuance Registration. The parties acknowledge that pursuant to the
Original Agreement, the Company filed a registration statement on January 18, 2007 (the “Initial
Registration Statement”) with the SEC on the appropriate form for a continuous offering to be made
pursuant to Rule 415 providing for the delivery to the Holders of Common Shares issued pursuant to
such registration statement upon the tendering of Partnership Units for redemption or exchange.
The Initial Registration Statement was effective upon filing. If such registration statement
ceases to be effective for any reason at any time prior to the delivery of all Common Shares
registered thereunder, then the Company shall use its commercially reasonable efforts to obtain the
prompt withdrawal of any order suspending the effectiveness thereof. The Company shall be
responsible for all Registration Expenses in connection with any registration pursuant to this
Section 2(a). The Company shall promptly supplement and amend such registration statement and the
prospectus included therein if required by the rules, regulations or instructions applicable to the
registration statement used for such registration statement or by the Securities Act. Except as
otherwise provided in this Agreement, any registration statement filed pursuant to this Section
2(a) shall not eliminate any right to registration provided under other sections of this Agreement.
(b) Right to Request Registration . At any time on or after the date
hereof, a Holder may request pursuant to this Section 2(b) registration under the Securities Act of
the resale of all or part of the Shareholder’s Registrable Common Shares (“Demand Registration”);
provided, that the Holder shall not be entitled to request any Demand Registrations while the Shelf
Registration Statement is effective and available for registration and resale of the Registrable
Common Shares.
(c) Number of Demand Registrations . Subject to the provisions of Section
2(b) and the notice requirements of Section 10, the Shareholder shall be entitled to request an
aggregate of two Demand Registrations per year, and shall not be entitled to request that less than
25% of the Registrable Common Shares be included in any Demand Registration.
(d) Restrictions on Demand Registrations . The Company shall not be
obligated to effect any Demand Registration within six months after the effective date of a
previous Demand Registration or a previous Shelf Registration Statement (as hereinafter defined)
wherein the Shareholder was permitted to register, and sold, at least 25% of the Registrable Common
Shares requested to be included therein. In no event shall the Company be obligated to effect more
than two (2) Demand Registrations hereunder or under the Other Registration Rights Agreement in any
single twelve (12) month period, with the first such period measured from the date of the first
Demand Registration and ending on the same date twelve months
following such Demand Registration,
whether or not a Business Day; provided, however , that if (i) the Company is requested to
effect a Demand Registration under this Agreement which is not otherwise designated by the
Shareholder to be a “shelf” registration statement and (ii) is also requested to effect one or more
Demand Registrations (as such term is defined in the Other Registration Rights Agreement) pursuant
to the Other Registration Rights Agreement within any eighteen (18) month period during which the
Company is eligible to file a registration statement on Form S-3 or on a successor form, then the
Company shall only be obligated with respect to such latter registration statement during such
period to register that percentage of the Registrable Common Shares equal to the product obtained
by dividing (i) the number of Registrable Common Shares held by the Shareholder by (ii) the total
number of Registrable Common Shares covered under this Agreement and the Other Registration Rights
Agreement. The Company may (i) postpone for up to ninety (90) days the filing or the effectiveness
of a Registration Statement for a Demand Registration if, based on the good faith judgment of the
Company’s board of directors, such postponement or withdrawal is necessary in order to avoid
premature disclosure of a matter the board has determined would be reasonably expected to result in
a material adverse effect to the Company’s business, financial condition, results of operations or
prospects or the loss of a material opportunity to be disclosed at such time or (ii) postpone the
filing of a Demand Registration in the event the Company shall be required to prepare audited
financial statements as of a date other than its fiscal year end (unless the shareholders
requesting such registration agree to pay the expenses of such an audit); provided, however, that
in no event shall the Company withdraw a Registration Statement under clause (i) after such
Registration Statement has been declared effective; and provided, further, however, that in any of
the events described in clause (i) or (ii) above, the Shareholder shall be entitled to withdraw
such request and, if such request is withdrawn, such Demand Registration shall not count as one of
the permitted Demand Registrations. The Company shall provide written notice to the Shareholder of
(x) any postponement or withdrawal of the filing or effectiveness of a Registration Statement
pursuant to this Section 2(e), (y) the Company’s decision to file or seek effectiveness of such
Registration Statement following such withdrawal or postponement and (z) the effectiveness of such
Registration Statement. The Company may defer the filing of a particular Registration Statement
pursuant to this Section 2(d) only once.
(f) Selection of Underwriters . If any of the Registrable Common Shares
covered by a Demand Registration or a Shelf Registration Statement pursuant to Section 4 hereof is
to be sold in an underwritten offering, the Shareholder, if it is the Holder who instructed the
Demand Registration or Shelf Registration Statement, or in the case of a transaction representing a
“shelf takedown”, the Holder initiating such transaction, shall have the right to select the
managing underwriter(s) to administer the offering subject to the approval of the Company, which
will not be unreasonably withheld; provided, however , that the Company
shall have the right to select the managing underwriter, subject to the approval of the Holder,
which shall not be unreasonably withheld, in the event of any underwritten offering pursuant to a
Demand Registration or “shelf takedown” where the Company is bearing the expenses of such Demand
Registration or “shelf takedown”.
(g) Effective Period of Demand Registrations . After any Demand
Registration filed pursuant to this Agreement has become effective, the Company shall use its best
efforts to keep such Demand Registration effective until such time as the Registrable Common Shares
registered thereon have been disposed of pursuant thereto. If the Company shall withdraw any
Demand Registration pursuant to subsection (e) of this Section 2 before any of the Shareholders
Registrable Common Shares covered by the withdrawn Demand Registration are unsold (a “Withdrawn
Demand Registration”), the Shareholder shall be entitled to a replacement Demand Registration that
(subject to the provisions of this Article 2) the Company shall use its best efforts to keep
effective until such time as the Registrable Common Shares registered thereon has been disposed of pursuant thereto. Such additional Demand Registration
otherwise shall be subject to all of the provisions of this Agreement.
(h) Other Company Securities . In no event shall the Company agree to
register Common Shares or any other securities for issuance by the Company or for resale by any
Persons other than the Shareholder in any registration statement filed pursuant to Section 2(b),
without the express written consent of the Shareholder, which consent shall be entirely
discretionary. Shareholder acknowledges that pursuant to the Original Agreement, it has previously
agreed to the filing of the Shelf Registration Statement with
multiple selling shareholders and
agrees that the Additional Shares may be included for resale in an amendment to the Shelf
Registration Statement.
(i) Conversion to Form S-3 . In the event that at any time a Demand
Registration Statement is in effect and the Company is eligible to register on Form S-3 or any
successor thereto then available, the Company shall as promptly as reasonably practicable convert
such registration statement to Form S-3 or such successor form.
3. PIGGYBACK REGISTRATIONS.
(a) Right to Piggyback. At any time after the Redemption Date, whenever the Company
proposes to register any of its common equity securities under the Securities Act (other than the
Initial Registration Statement, or a registration statement on Form S-8 or on Form S-4 or any
similar successor forms thereto), whether for its own account or for the account of one or more
stockholders of the Company, and the registration form to be used may be used for any registration
of Registrable Common Shares (a “Piggyback Registration”), the Company shall give prompt written
notice (in any event within 10 business days after its receipt of notice of any exercise of other
demand registration rights) to the Holder of its intention to effect such a registration and,
subject to Sections 3(b) and 3(c), shall include in such registration all Registrable Common Shares
of the Shareholder with respect to which the Company has received written requests for inclusion
therein within 20 days after the receipt of the Company’s notice. The Company may postpone or
withdraw the filing or the effectiveness of a Piggyback Registration at any time in its sole
discretion.
(b) Priority on Primary Registrations. If a Piggyback Registration is an underwritten
primary registration on behalf of the Company, and the managing underwriters advise the Company in
writing that in their opinion the number of securities requested to be included in such
registration exceeds the number that can be sold in such offering and/or that the number of shares
of Registrable Common Shares proposed to be included in any such registration would adversely
affect the price per share of the Company’s equity securities to be sold in such offering, the
underwriting shall be allocated among the Company and all Holders pro rata on the basis of the
Common Shares and Registrable Common Shares offered for such registration by the Company and each
Holder, respectively, electing to participate in such registration.
(c) Priority on Secondary Registrations. If a Piggyback Registration is an
underwritten secondary registration on behalf of a holder of the Company’s securities other than
Registrable Common Shares (“Non-Holder Securities”), and the managing underwriters advise the
Company in writing that in their opinion the number of securities requested to be included in such
registration exceeds the number that can be sold in such offering and/or that the number of shares
of Registrable Common Shares proposed to be included in any such registration would adversely
affect the price per share of the Company’s equity securities to be sold in such offering, the
underwriting shall be allocated among the holders of Non-Holder Securities and all Holders pro rata
on the basis of the Non-Holder Securities and Registrable Common Shares offered for such
registration by the holder of Non-Holder Securities and each Holder, respectively, electing to
participate in such registration.
(d) Selection of Underwriters. If any Piggyback Registration is an underwritten
primary offering, the Company shall have the right to select the managing underwriter or
underwriters to administer any such offering.
(e) Other Registrations. If the Company has previously filed a Registration Statement
with respect to shares of Registrable Common Shares pursuant to Sections 2 (other than Section
2(a)) or 4 hereof or pursuant to this Section 3, and if such previous registration has not been
withdrawn or abandoned, the Company shall not be obligated to cause to become effective any other
registration of such same shares of Registrable Common Shares or any of its securities under the
Securities Act, whether on its own behalf or at the request of any holder or holders of such
securities.
4. SHELF REGISTRATIONS.
(a) The parties acknowledge that pursuant to the Original Agreement, the Company
filed a registration statement on January 18, 2007, with the SEC on the appropriate form for the
resale pursuant to Rule 415 from time to time by the Shareholder of the Original Shares held by the
Shareholder (the “Initial Shelf Registration Statement”). The Company will use commercially
reasonable efforts to file (at the earliest possible date, but no later than thirty (30) Business
Days after the date first set forth above) a new registration statement with the SEC on the
appropriate form for the resale pursuant to Rule 415 from time to time by the Shareholder of the
Additional Shares held by the Shareholder (the “Additional Shelf Registration Statement,” and
together with the Initial Shelf Registration Statement, the “Shelf Registration Statement”). The
Company shall use its commercially reasonable efforts to keep the Shelf Registration Statement
effective until the earliest to occur of the date on which all of the Registrable Common Shares
cease to be Registrable Common Shares.
(b) If at any time the Company is not eligible to use a Shelf Registration
Statement, a Holder may during such time exercise Demand Registration rights, regardless of any
registration statement filed by the Company under Section 4(a).
(c) A filing pursuant to this Section 4 shall not relieve the Company of any
obligation to effect registration of Registrable Common Shares pursuant to Section 2 or Section 3,
except as provided therein.
5. REGISTRATION PROCEDURES.
Whenever the Holder requests that any of its Registrable Common Shares be registered pursuant
to this Agreement, the Company shall use its best efforts to effect the registration and the sale
of such Registrable Common Shares in accordance with the intended methods of disposition thereof,
and pursuant thereto the Company shall as expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement with respect to such
Registrable Common Shares and use its best efforts to cause such Registration Statement to become
effective as soon as practicable thereafter; and before filing a Registration Statement or
Prospectus or any amendments or supplements thereto, furnish to the Shareholder and the underwriter
or underwriters, if any, copies of all such documents proposed to be filed, including documents
incorporated by reference in the Prospectus and, if requested by the Shareholder, the exhibits
incorporated by reference, and the Shareholder shall have the opportunity to object to any
information pertaining to the Shareholder that is contained therein and the Company will make the
corrections reasonably requested by the Shareholder with respect to such information prior to
filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(b) prepare and file with the SEC such amendments and supplements to such
Registration Statement and the Prospectus used in connection therewith as may be necessary to keep
such Registration Statement effective for such period as is necessary to complete the distribution
of the securities covered by such Registration Statement and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such Registration
Statement during such period in accordance with the intended methods of disposition by the sellers
thereof set forth in such Registration Statement;
(c) furnish to each seller of Registrable Common Shares such number of copies of
such Registration Statement, each amendment and supplement thereto, the Prospectus included in such
Registration Statement (including each preliminary Prospectus) and such other documents as such
seller may reasonably request in order to facilitate the disposition of the Registrable Common
Shares owned by such seller;
(d) use its commercially reasonable efforts to remain eligible to file registration
statements on Form S-3 or any successor thereto then available, and if applicable to utilize “well
known seasoned issuer status”, and to register or qualify such Registrable Common Shares under such
other securities or blue sky laws of such jurisdictions as any seller reasonably requests and do
any and all other acts and things which may be reasonably necessary or advisable to enable such
seller to consummate the disposition in
such jurisdictions of the Registrable Common Shares owned
by such seller (provided, that the Company will not be required to (i) qualify generally to do
business in any jurisdiction where it would not otherwise be required to qualify but for this
subparagraph (d), (ii) subject itself to taxation in any such jurisdiction or (iii) consent to
general service of process in any such jurisdiction);
(e) notify each seller of such Registrable Common Shares, at any time when a
Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence
of any event as a result of which the Prospectus included in such Registration Statement contains
an untrue statement of a material fact or omits any fact necessary to make the statements therein
not misleading, and prepare a supplement or amendment to such Prospectus so that such Prospectus
shall not contain an untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading;
(f) in the case of an underwritten offering, enter into such customary agreements
together with the Operating Partnership (including underwriting agreements in customary form) and
take all such other actions as the underwriters, if any, reasonably request in order to expedite or
facilitate the disposition of such Registrable Common Shares (including, without limitation,
effecting a stock split or a combination of shares and making members of senior management of the
Company available to participate in, and cause them to cooperate with the underwriters in
connection with, “road-show” and other customary marketing activities (including one-on-one
meetings with prospective purchasers of the Registrable Common Shares)) and cause to be delivered
to the underwriters and the sellers, if any, opinions of counsel to the Company and the Operating
Partnership in customary form, as well as closing certificates and other customary documents
covering such matters as are customarily covered by opinions for and certificates in an
underwritten public offering as the underwriters may request and addressed to the underwriters and
the sellers; provided, however, that notwithstanding anything else contained in this
Agreement, the Company shall not be obligated to effect an aggregate of more than three
underwritten offerings or participate in more than two “road shows” (which, for the purposes of
this sentence shall not include presentations that involve only telephonic or internet-based
marketing and do not require any travel by the Company’s management) in any twenty-four (24) month
period, and not more than one underwritten offering every six (6) months under this Agreement or
under the Other Registration Rights Agreement; and provided further, however, that if an
underwritten public offering (including a public sale to a registered broker-dealer) is effected at
the request of Apollo, the Shareholder shall have the right to participate in such offering and
Apollo shall have the right to participate in any underwritten public offering effected at the
request of the Shareholder under this Agreement; and if the managing underwriters or broker-dealers
of any such underwritten offering advise Apollo in writing that in their opinion the number of
Registrable Common Shares proposed to be included in any such offering exceeds the number of
securities that can be sold in such offering and/or that the number of Registrable Common Shares
proposed to be included in any such offering would materially adversely affect the price per share
of the Company’s equity securities to be sold in such offering, Apollo and the Shareholder shall
include in such offering only the number of Registrable Common Shares that, in the opinion of such
managing underwriters (or registered broker-dealer), can be sold. If the number of shares that can
be sold exceeds the number of Registrable Common Shares proposed to be sold, such excess shall be
allocated pro rata among the holders of Common Shares desiring to participate in such offering
based on the amount of such Common Shares initially requested to be registered by such holders or
as such holders may otherwise agree.
Only Apollo and the Shareholder and their affiliates holding Registrable Common Shares shall
be entitled to participate in any public underwritten offerings pursuant to this Agreement with
respect to Registrable Common Shares (which for purposes of this paragraph (f) includes Registrable
Common Shares as defined in the Other Registration Rights Agreement).
If either of the Shareholder or Apollo determines not to participate in an underwritten
offering with respect to which it is entitled hereunder to participate in hereunder or under the
Other Registration Rights Agreement, then the non-participating party shall agree to such lockup
period with respect to its Common Shares as the managing underwriters or broker dealer deems
reasonably necessary for purposes of effecting the public offering.
(g) make available, for inspection by any seller of Registrable Common Shares, any
underwriter participating in any disposition pursuant to such Registration Statement, and any
attorney, accountant or other agent retained by any such seller or underwriter, all financial and
other records, pertinent corporate documents and properties of the Company, and cause the Company’s
officers, directors, employees and independent accountants to supply all information reasonably
requested by any such seller, underwriter, attorney, accountant or agent in connection with such
Registration Statement;
(h) to use its best efforts to cause all such Registrable Common Shares to be
listed on each securities exchange on which securities of the same class issued by the Company are
then listed or, if no such similar securities are then listed, on Nasdaq or a national securities
exchange selected by the Company;
(i) provide a transfer agent and registrar for all such Registrable Common Shares
not later than the effective date of such Registration Statement;
(j) if requested, cause to be delivered, immediately prior to the effectiveness of
the Registration Statement (and, in the case of an underwritten offering, at the time of delivery
of any Registrable Common Shares sold pursuant thereto), letters from the Company’s independent
certified public accountants addressed to the Shareholder (unless the Shareholder does not provide
to such accountants the appropriate representation letter required by rules governing the
accounting profession) and each underwriter, if any, stating that such accountants are independent
public accountants within the meaning of the Securities Act and the applicable rules and
regulations adopted by the SEC thereunder, and otherwise in customary form and covering such
financial and accounting matters as are customarily covered by letters of the independent certified
public accountants delivered in connection with primary or secondary underwritten public offerings,
as the case may be;
(k) make generally available to its shareholders a consolidated earnings statement
(which need not be audited) for the 12 months beginning after the effective date of a Registration
Statement as soon as reasonably practicable after the end of such period, which earnings statement
shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act;
(l) promptly notify the Shareholder and the underwriter or underwriters, if any:
(i) when the Registration Statement, any pre-effective amendment, the Prospectus
or any Prospectus supplement or post-effective amendment to the Registration Statement has been
filed and, with respect to the Registration Statement or any post-effective amendment, when the
same has become effective;
(ii) of any SEC comments applicable to the Registration Statement or Prospectus or
written request from the SEC for any amendments or supplements to the Registration Statement or
Prospectus;
(iii) of the notification to the Company by the SEC of its initiation of any
proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness
of the Registration Statement;
(iv) of the receipt by the Company of any notification with respect to the
suspension of the qualification of any Registrable Common Shares for sale under the applicable
securities or blue sky laws of any jurisdiction;
(v) of the existence of, any fact or the happening of any event that makes any
statement of material fact made in any registration statement filed pursuant to this Agreement or
related prospectus untrue in any material respect, or that requires the making of any changes in
such registration statement so that, in the case of the registration statement, it will not contain
any untrue statement of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and that, in the case of the
prospectus, such prospectus 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 that a post-effective amendment to a
registration statement filed pursuant to this Agreement will be filed with the SEC.
The Company shall file all reports required to be filed by it under the Securities Act and the
Exchange Act and the rules and regulations adopted by the SEC thereunder, and take such further
action as the Shareholder may reasonably request, all to the extent required to enable the
Shareholder to be eligible to sell Registrable Common Shares pursuant to Rule 144 (or any similar
rule then in effect).
In connection with any registration pursuant to which any of a Holder’s Registrable Common
Shares is to be sold, the Company may require that the Holder furnish to the Company any other
information regarding the Holder and the distribution of such securities as the Company may from
time to time reasonably request in writing.
The Holders agree by having their stock treated as Registrable Common Shares hereunder that,
upon notice of the happening of any event described in l(v) above (a “Suspension Notice”), the
Holders will forthwith discontinue disposition of Registrable Common Shares until the Shareholder
is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished
with a supplemented or amended Prospectus as contemplated by Section 5(e) hereof, and, if so
directed by the Company, the Holders will deliver to the Company (at the Company’s expense) all
copies, other than permanent file copies then in the Holder’s possession, of the Prospectus
covering such Registrable Common Shares current at the time of receipt of such notice; provided,
however, that such postponement of sales of Registrable Common Shares shall not exceed ninety (90)
days in the aggregate in any one year; provided, further, however, that not later than the last day
of such ninety (90) day period or such shorter period as may apply, the Company shall have provided
to the Holders a supplemented or amended Prospectus as contemplated by Section 5(e) hereof. If the
Company shall give any notice to suspend the disposition of Registrable Common Shares pursuant to a
Prospectus, the Company shall extend the period of time during which the Company is required to
maintain the Registration Statement effective pursuant to this Agreement by the number of days
during the period from and including the date of the giving of such notice to and including the
date the Shareholder either is advised by the Company that the use of the Prospectus may be resumed
or receives the copies of the supplemented or amended Prospectus contemplated by Section 5(e). In
any event, the Company shall not be entitled to deliver more than one (1) Suspension Notice in any
one year.
6. REGISTRATION EXPENSES.
(a) All expenses incident to the Company’s performance of or compliance with this
Agreement, including, without limitation, all registration and filing fees, underwriting discounts
and commissions, NASD fees, fees and expenses of compliance with securities or blue sky laws,
listing application fees, printing expenses, transfer agent’s and registrar’s fees, cost of
distributing Prospectuses in preliminary and final form as well as any supplements thereto, and
fees and disbursements of counsel for the Company and all independent certified public accountants
and other Persons retained by the Company (all such expenses being herein called “Registration
Expenses”), shall be borne by the Shareholder; provided, however , that the Company
shall bear the expenses, exclusive of underwriting discounts and commissions, incident to the
Initial Registration Statement, the Shelf Registration Statement filed pursuant to Section 4(a),
including up to three “shelf takedowns” or offerings pursuant to Rule 430A under the Securities
Act, if applicable, and up to three Demand Registrations pursuant to Section 2(b), but in no event
shall the Company be obligated to bear the expense of more than three offerings (exclusive of the
expenses incident to the Initial Registration Statement and the Shelf Registration Statement filed
pursuant to Section 4(a)) pursuant to this Section 6(a) (or four offerings if the Shareholder is
unable, through its commercially reasonable efforts, to dispose of all its Registrable Common
Shares after such three offerings). The Company shall pay its internal expenses (including,
without limitation, all salaries and
expenses of its officers and employees performing legal or
accounting duties), and the expense of any annual audit or quarterly review, and the expense of any
liability insurance.
7. INDEMNIFICATION.
(a) The Company and the Operating Partnership shall indemnify, to the fullest
extent permitted by law, each Holder, its officers, directors, trustees, partners, and Affiliates
and each Person who controls such Holder (within the meaning of the Securities Act) against all
losses, claims, damages, expenses and liabilities, joint or several, actions or proceedings, to
which each such indemnified party may become subject under the Securities Act or otherwise, insofar
as such losses, claims, damages, expenses or liabilities (or actions or proceedings in respect
thereof) arise out of or based upon any untrue or alleged untrue statement of material fact
contained in any Registration Statement, Prospectus or any amendment thereof or supplement thereto
or any omission or alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading or any violation or alleged violation by the Company
of the Securities Act, the Exchange Act or applicable “blue sky” laws and the Company and the
Operating Partnership will reimburse each such Holder and each such director, trustee, officer,
partner, agent, employee or affiliate, underwriter and controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating or defending any such loss,
claim, damage, expense, liability action or proceeding, except insofar as the same are made in
reliance and in conformity with information relating to the Shareholder furnished in writing to the
Company by the Shareholder expressly for use therein or caused by the Shareholder’s failure to
deliver to the Shareholder’s immediate purchaser a copy of the Registration Statement or Prospectus
or any amendments or supplements thereto (if the same was required by applicable law to be so
delivered) after the Company has furnished the Shareholder with a sufficient number of copies of
the same. In connection with an underwritten offering, the Company shall indemnify such
underwriters, their officers and directors and each Person who controls such underwriters (within
the meaning of the Securities Act) to the same extent as provided above with respect to the
indemnification of the Shareholder.
(b) In connection with any Registration Statement in which the Shareholder is
participating, the Shareholder shall furnish to the Company in writing such information and
affidavits as the Company reasonably requests for use in connection with any such Registration
Statement or Prospectus and, shall indemnify, to the fullest extent permitted by law, the Company,
its officers, directors, Affiliates, and each Person who controls the Company (within the meaning
of the Securities Act) against all losses, claims, damages, expenses and liabilities joint or
several, actions or proceedings, to which each such indemnified party may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages, expenses or liabilities (or
actions or proceedings in respect thereof) arise out of or based upon any untrue or alleged untrue
statement of material fact contained in the Registration Statement, Prospectus or preliminary
Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements therein not
misleading, and the Holder will reimburse each of the Company and each such director, trustee, officer,
partner, agent, employee or affiliate, underwriter and controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating or defending any such loss,
claim, damage, expense, liability action or proceeding, but only to the extent that the same are
made in reliance and in conformity with information relating to the Shareholder furnished in
writing to the Company by the Shareholder expressly for use therein or caused by the Shareholder’s
failure to deliver to the Shareholder’s immediate purchaser a copy of the Registration Statement or
Prospectus or any amendments or supplements thereto (if the same was required by applicable law to
be so delivered) after the Company has furnished the Shareholder with a sufficient number of copies
of the same.
(c) Any Person entitled to indemnification hereunder shall (i) give prompt written
notice to the indemnifying party of any claim with respect to which it seeks indemnification and
(ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying
party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified
party. If such defense is assumed, the indemnifying party shall not be subject to any liability for
any settlement made by the indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not
entitled to, or elects not to, assume the
defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for
all parties indemnified by such indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party there may be one or more legal or equitable defenses
available to such indemnified party which are in addition to or may conflict with those available
to another indemnified party with respect to such claim. Failure to give prompt written notice
shall not release the indemnifying party from its obligations hereunder.
(d) The indemnification provided for under this Agreement shall remain in full
force and effect regardless of any investigation made by or on behalf of the indemnified party or
any officer, director or controlling Person of such indemnified party and shall survive the
transfer of securities.
(e) If the indemnification provided for in or pursuant to this Section 7 is due in
accordance with the terms hereof, but is held by a court to be unavailable or unenforceable in
respect of any losses, claims, damages, liabilities or expenses referred to herein, then each
applicable indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified Person as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in connection with the
statements or omissions which result in such losses, claims, damages, liabilities or expenses as
well as any other relevant equitable considerations. The relative fault of the indemnifying party
on the one hand and of the indemnified Person on the other 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 party or by the indemnified party, and by such party’s relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or omission. In no event
shall the liability of any selling Holder be greater in amount than the amount of net proceeds
received by such Holder upon such sale or the amount for which such indemnifying party would have
been obligated to pay by way of indemnification if the indemnification provided for under Section
7(a) or 7(b) hereof had been available under the circumstances.
(f) In the event that advances are not made pursuant to this Section 8 or payment
has not otherwise been timely made, each indemnified party shall be entitled to seek a final
adjudication in an appropriate court of competent jurisdiction of the entitlement of the
indemnified party to indemnification or advances hereunder.
The Company, the Operating Partnership and the Holders agree that they shall be precluded from
asserting that the procedures and presumptions of this Section 7 are not valid, binding and
enforceable. The Company, the Operating Partnership and the Holders further agree to stipulate in
any such court that the Company, the Operating Partnership and the Holders are bound by all the provisions of this
Section 7 and are precluded from making any assertion to the contrary.
To the extent deemed appropriate by the court, interest shall be paid by the indemnifying
party to the indemnified party at a reasonable interest rate for amounts which the indemnifying
party has not timely paid as the result of its indemnification and contribution obligations
hereunder.
In the event that any indemnified party is a party to or intervenes in any proceeding to which
the validity or enforceability of this Section 7 is at issue or seeks an adjudication to enforce
the rights of any indemnified party under, or to recover damages for breach of, this Section 7, the
indemnified party, if the indemnified party prevails in whole in such action, shall be entitled to
recover from the indemnifying party and shall be indemnified by the indemnifying party against, any
expenses incurred by the indemnified party. If it is determined that the indemnified party is
entitled to indemnification for part (but not all) of the indemnification so requested, expenses
incurred in seeking enforcement of such partial indemnification shall be reasonably prorated among
the claims, issues or matters for which the indemnified party is entitled to indemnification and
for such claims, issues or matters for which the indemnified party is not so entitled.
The indemnity agreements contained in this Section 7 shall be in addition to any other rights
(to indemnification, contribution or otherwise) which any indemnified party may have pursuant to
law or
contract and shall remain operative and in full force and effect regardless of any
investigation made or omitted by or on behalf of any indemnified party and shall survive the
transfer of any Registrable Common Shares by any Holder.
8. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
No Person may participate in any registration hereunder that is underwritten unless such
Person (a) agrees to sell such Person’s securities on the basis provided in any underwriting
arrangements approved by the Person or Persons entitled hereunder to approve such arrangements and
(b) completes and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting arrangements.
9. RULE 144.
The Company covenants that it will file the reports required to be filed by it under the
Securities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder,
and it will take such further action as the Shareholder may reasonably request to make available
adequate current public information with respect to the Company meeting the current public
information requirements of Rule 144(c) under the Securities Act (to the extent such information is
available), to the extent required to enable the Shareholder to sell Registrable Common Shares
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, or (ii) any
similar rule or regulation hereafter adopted by the SEC. Upon the request of the Shareholder, the
Company will deliver to the Shareholder a written statement as to whether it has complied with such
information and requirements.
10. MISCELLANEOUS.
(a) Notices . All notices, requests and other communications to any party
hereunder shall be in writing (including facsimile or similar writing) and shall be given,
If to the Company:
Lexington Realty Trust
Xxx Xxxx Xxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000-0000
Fax: 000-000-0000
Attention: X. Xxxxxx Xxxxx
Xxx Xxxx Xxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000-0000
Fax: 000-000-0000
Attention: X. Xxxxxx Xxxxx
Xxxxxx X. Xxxxxxxxx
with a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
00 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
Attention: Xxxx Xxxxxxxxxxx
00 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
Attention: Xxxx Xxxxxxxxxxx
If to the Shareholder:
Vornado Realty L.P. or Vornado LXP LLC
Address: 000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
ATTN: Xxxxx Xxxxxx
Address: 000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
ATTN: Xxxxx Xxxxxx
With a copy to
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Facsimile No. (000) 000-0000
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Facsimile No. (000) 000-0000
or such other address or facsimile number as such party (or transferee) may hereafter specify for
the purpose by notice to the other parties. Each such notice, request or other communication shall
be effective (a) if given by facsimile, when such facsimile is transmitted to the facsimile number
specified in this Section and the appropriate facsimile confirmation is received or (b) if given by
any other means, when delivered at the address specified in this Section.
(b) No Waivers. No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise of any other right,
power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive
of any rights or remedies provided by law.
(c) Expenses. Except as otherwise provided for herein or otherwise agreed
to in writing by the parties, all costs and expenses incurred in connection with the preparation of
this Agreement shall be paid by the Company.
(d) Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns; provided, however, that neither party may assign its rights or obligations under
this Agreement without the prior written consent of the other party, except that the Shareholder
may assign its rights hereunder to (x) any Affiliate, including but not limited to VNK L.L.C. and
Vornado Xxxxxxx L.L.C. and (y) with respect to the Additional Shares, Citigroup Global Markets,
Inc. or its successors or assigns (the “Lender”) under the loan agreement, dated as of November
[3], 2008, between Citigroup Global Markets, Inc. and Vornado LXP LLC; provided, that if the Lender
exercises remedies in connection with such loan agreement, the Lender may assign its rights
hereunder to any one or two Affiliates with respect to all, but not less than all, of the
Additional Shares.
(e) Governing Law. This Agreement shall be construed in accordance with
and governed by the law of the State of New York, without regard to principles of conflicts of law.
(f) Jurisdiction. Any suit, action or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this Agreement or the
transactions contemplated hereby may be brought in any federal or state court located in the County
and State of New York, and each of the parties hereby consents to the jurisdiction of such courts
(and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and
irrevocably waives, to the fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of the venue of any such suit, action or proceeding in any such court
or that any such suit, action or proceeding which is brought in any such court has been brought in
an inconvenient forum. Process in any such suit, action or proceeding may be served on any party
anywhere in the world, whether within or without the jurisdiction of any such court. Without
limiting the foregoing, each party agrees that service of process on such party as provided in
Section 10(a) shall be deemed effective service of process on such party.
(g) Waiver of Jury Trial.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
(h) Counterparts; Effectiveness. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
(i) Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter of this Agreement and supersedes all prior
agreements and understandings, both oral and written, between the parties with respect to the
transactions contemplated herein. No provision of this Agreement or any other agreement
contemplated hereby is intended to confer on any Person other than the parties hereto any rights or
remedies.
(j) Captions. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation hereof.
(k) Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired or invalidated so
long as the economic or legal substance of the transactions contemplated hereby is not affected in
any manner materially adverse to any party. Upon such a determination, the parties shall negotiate
in good faith to modify this Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner in order that the transactions contemplated hereby be
consummated as originally contemplated to the fullest extent possible.
(l) Amendments. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, terminated (other than by their terms), modified
or supplemented, and waivers or consents to departures from the provisions hereof may not be given
without the prior written consent of the parties hereto.
(m) Aggregation of Shares. All Registrable Common Shares held by or
acquired by any Affiliated Persons will be aggregated together for the purpose of determining the
availability of any rights under this Agreement.
(n) Equitable Relief. The parties hereto agree that legal remedies may be
inadequate to enforce the provisions of this Agreement and that equitable relief, including
specific performance and injunctive relief, may be used to enforce the provisions of this
Agreement.
(o) No Inconsistent Agreements. None of the Company or the Operating
Partnership has entered and neither of them will enter into any agreement that is inconsistent with
the rights granted to the Shareholder in this Agreement or that otherwise conflicts with the
provisions hereof. The rights granted to the Shareholder 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 Operating
Partnership’s other issued and outstanding securities under any such agreements. From and after the
date of this Agreement, neither the Company nor the Operating Partnership will enter into any
agreement with any holder or prospective holder of any securities of the Company or the Operating
Partnership which would grant such holder or prospective holder more favorable rights than those
granted to the Shareholder hereunder or substantially similar or equivalent rights to those granted
to the Shareholder. Notwithstanding the foregoing, the provisions of this Section 10(o) shall not
apply to the Other Registration Rights Agreements.
(p) No Adverse Action Affecting the Registrable Common Shares. Neither the
Company nor the Operating Partnership shall take any action with respect to the Registrable Common
Shares with an intent to adversely affect or that does adversely affect the ability of any of the
Holders to include such Registrable Common Shares in a registration undertaken pursuant to this
Agreement or their offer and sale. Notwithstanding the foregoing, the provisions of this Section
10(p) shall not apply to the Other Registration Rights Agreements.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, this Registration Rights Agreement has been duly executed by each of the
parties hereto as of the date first written above.
| VORNADO REALTY L.P. |
||||
| By: | VORNADO REALTY TRUST, | |||
| Sole General Partner | ||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: Xxxx X. Xxxx | ||||
| Title: Senior Vice President | ||||
| VORNADO LXP LLC |
||||
| By: | VORNADO REALTY L.P., | |||
| Sole Member | ||||
| By: | VORNADO REALTY TRUST, | |||
| Sole General Partner | ||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Senior Vice President | |||
| LEXINGTON REALTY TRUST |
||||
| By: | /s/ X. Xxxxxx Eglin | |||
| Name: | X. Xxxxxx Eglin | |||
| Title: | Chief Executive Officer | |||
