AMENDMENT NO. 1 TO AMENDED AND RESTATED OWNERSHIP LIMIT WAIVER AGREEMENT (VORNADO)
AMENDMENT
NO. 1 TO
AMENDED
AND RESTATED OWNERSHIP LIMIT WAIVER AGREEMENT (VORNADO)
THIS
AMENDMENT NO 1 TO AMENDED AND RESTATED OWNERSHIP LIMIT WAIVER AGREEMENT (this
“Amendment”),
dated as of April 21, 2009, is between Lexington Realty Trust, a Maryland real
estate investment trust (the “Company”), and
Vornado Realty L.P. (“VRT”), a Delaware
limited partnership (together Vornado Realty Trust and with any entity at least
99% of the voting securities of which are owned by VRT or Vornado Realty Trust,
“Vornado”) and amends, as set forth below, that certain Amended and Restated
Ownership Limit Waiver Agreement (Vornado), dated as of October 27, 2008,
between the Company and VRT (the “Agreement”). Capitalized
terms used, but not otherwise defined, in this Amendment shall have the meanings
given to them in the Agreement or in the hereinafter-mentioned
Declaration.
RECITALS
A. Article
IX of the Company’s Declaration of Trust (the “Declaration”)
contains (1) a restriction prohibiting any Person from Beneficially Owning or
Constructively Owning outstanding shares of beneficial interest in the Company
which are classified as Common Stock or Preferred Stock (the “Equity Stock”) in
excess of 9.8% of the value of the outstanding Equity Stock of the Company (the
“Ownership
Limit”) and (2) a restriction setting forth that any sale, transfer,
gift, hypothecation, pledge, assignment, devise or other disposition of Equity
Stock of the Company that, if effective, would result in any Person Beneficially
Owning or Constructively Owning Equity Stock in excess of the Ownership Limit
shall be void ab initio as to the Transfer of that number of shares of Equity
Stock which would be otherwise Beneficially or Constructively Owned by such
Person in excess of the Ownership Limit; and the intended transferee shall
acquire no rights in such excess shares of Equity Stock.
B. The
Company and Vornado entered into the Agreement in connection with the an
increase in Vornado’s ownership of the Company on October 27, 2008.
C. The
Company and Vornado wish to make certain clarifications to the Agreement so that
VRT Equity Stock includes any Equity Stock issued in respect of Vornado’s
ownership of the Company by reason of or in connection with certain stock
dividends declared.
D. Pursuant
to subparagraph (a)(9) of Article IX of the Declaration, the Company’s Board of
Trustees has adopted resolutions approving this Amendment.
AGREEMENT
1. Section
1 of the Agreement is hereby
amended by deleting it in its entirety and replacing it with the
following:
1.1 The
Company exempts Vornado, effective as of the date hereof and subject to the
terms herein, from the Ownership Limit solely (A) (i) to the extent of Vornado’s
Beneficial Ownership or Constructive Ownership of the lesser of (1) 16,149,594 shares of Equity Stock; and (2) any lesser number of shares of
Equity Stock of the Company owned by Vornado from time to time after the
Settlement Date, plus (ii) the number of shares of Equity
Stock of the Company applicable to Vornado’s Beneficial Ownership or
Constructive Ownership of any Equity Stock of the Company that is owned by
Winthrop Realty Trust or WRT Realty L.P. (together (“Winthrop”), but in no event more than the lesser
of (1) 3,500,000 shares of Equity Stock of the Company and (2) any lesser number
of shares of Equity Stock
of the Company owned by Winthrop from time to time following the Settlement
Date, plus (iii) the number of shares of Equity
Stock of the Company issued by the Company to Vornado or Winthrop by
reason of or in connection with any stock dividend declared and paid pursuant to
Revenue Procedure 2008-68 or any similar Revenue Procedure or private letter
ruling with respect to shares of Equity Stock exempt under this Agreement where
the value of Vornado’s Beneficial or Constructive Ownership expressed as a
percentage of the value of all shares of Equity Stock of the Company does not
exceed 23% following such stock dividend (a “Permitted Stock
Dividend”), and (B) upon
and subject to Vornado’s compliance with Section 2.2 below and its continued
compliance with the covenants referred to therein. This exemption shall not
apply to any other shares of Equity Stock of the Company Beneficially Owned or
Constructively Owned by Vornado.
1.2 For
avoidance of doubt, (x) following any sale, assignment, transfer or other
disposition by Vornado of shares of Equity Stock of the Company, the exemption
granted by the Company hereunder shall exempt Vornado from the Ownership Limit
only with respect to the maximum aggregate number of shares of Equity Stock of
the Company, as the case may be, owned by Vornado immediately after such sale,
assignment, transfer or disposition and after each such sale, assignment,
transfer or disposition by Vornado anytime thereafter, (y) under no
circumstances shall this exemption apply to any Equity Stock of the Company
acquired by Vornado or Winthrop at any time after the the date hereof, with the
exception of shares of Equity Stock of the Company issued by the Company to Vornado or
Winthrop by reason of or in connection with a Permitted Stock Dividend or
that are acquired by Vornado through a distribution by Winthrop of the 3,500,000
shares of Equity Stock owned by Winthrop on the Settlement Date (or such lesser
number, or such larger number pursuant to clause 1.1(A)(iii) above, as
applicable), (z) Permitted Stock Dividends shall not include any shares of
Equity Stock issued pursuant to a direct share purchase or dividend reinvestment
plan.
2. Except
as modified by this Amendment, the Agreement is hereby ratified and affirmed in
all respects. Nothing herein shall be held to alter, vary or
otherwise affect the terms, conditions and provision of the Agreement, other
than as stated above.
3. All questions concerning the
construction, validity and interpretation of this Amendment shall be governed by
and construed in accordance with the domestic laws of the State of Maryland,
without giving effect to any choice of law or conflict of law provision (whether
of the State of Maryland or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of
Maryland.
[Signature
Page Follows]
- 2
-
Each of the parties has caused this
Amendment to be signed by its duly authorized officers as of the date set forth
in the introductory paragraph hereof.
| THE COMPANY | VORNADO | |||||
| Lexington Realty Trust | Vornado Realty L.P. | |||||
| By: | Vornado Realty Trust General Partner | |||||
| By: |
/s/ X. Xxxxxx
Eglin
|
By: |
/s/ Xxxx X.
Xxxx
|
|||
|
Name: X. Xxxxxx
Eglin
|
Name: Xxxx X.
Xxxx
|
|||||
|
Title: Chief Executive
Officer
|
Title:
SVP
|
|||||
