LEXINGTON REALTY TRUST, Issuer, CERTAIN SUBSIDIARIES OF LEXINGTON REALTY TRUST, Subsidiary Guarantors, and Trustee SIXTH SUPPLEMENTAL INDENTURE Dated as of January 26, 2010
EXECUTION
COPY
Issuer,
CERTAIN
SUBSIDIARIES OF LEXINGTON REALTY TRUST,
Subsidiary
Guarantors,
and
U.S.
BANK NATIONAL ASSOCIATION,
Trustee
Dated as
of January 26, 2010
6.00%
Convertible Guaranteed Notes due 2030
THIS
SIXTH SUPPLEMENTAL INDENTURE (this “Sixth Supplemental Indenture”), is entered into
as of January 26, 2010, among LEXINGTON REALTY TRUST, a Maryland real estate
investment trust (the “Issuer”), CERTAIN SUBSIDIARIES OF THE ISSUER SIGNATORIES
HERETO (including subsidiaries of the Issuer subsequently becoming guarantors,
the “Subsidiary Guarantors” or “Guarantors”) and U.S. BANK NATIONAL ASSOCIATION,
a national banking association duly organized and existing under the laws of the
United States, as Trustee hereunder (the “Trustee”), having its Corporate Trust
Office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
WHEREAS,
The Lexington Master Limited Partnership, a former subsidiary of the Issuer (the
“MLP”), as issuer, the Issuer, as parent guarantor, the Guarantors and the
Trustee entered into that certain Indenture dated as of January 29, 2007 (the
“Original Indenture”), relating to the Issuer’s unsecured debt securities
authenticated and delivered under the Original Indenture;
WHEREAS,
pursuant to Section 901(1) of the Original Indenture, the MLP, the Issuer, the
Guarantors and the Trustee amended certain provisions of the Original Indenture
to evidence the succession of the Issuer to the MLP and the assumption by the
Issuer of the covenants of the MLP, therein and in the Securities pursuant to
that Fourth Supplemental Indenture dated as of December 31, 2008 among the
Issuer, the Guarantors and the Trustee (the “Fourth Supplemental
Indenture”);
WHEREAS,
pursuant to Section 901 of the Original Indenture, the Issuer, the Guarantors
and the Trustee may enter into supplemental indentures to establish the form or
terms of a series of Securities issued pursuant to the Original
Indenture;
WHEREAS,
pursuant to Section 301 of the Original Indenture, the Issuer, the Guarantors
and the Trustee desire to establish the terms of a series of Securities entitled
the “6.00% Convertible Guaranteed Notes due 2030” of the Issuer in respect of
which the Guarantors shall be guarantors (the “Notes”); and
WHEREAS,
the Issuer, the Guarantors and the Trustee have duly authorized the execution
and delivery of this instrument to establish the terms of the Notes set forth
herein and have done all things necessary to make this instrument (together with
the Original Indenture and the Fourth Supplemental Indenture, the “Indenture”) a
valid agreement of the parties hereto, in accordance with its
terms.
NOW,
THEREFORE, in consideration of the promises and the covenants and agreements
contained herein, and for other good and valuable consideration the receipt of
which is hereby acknowledged, and for the equal and proportionate benefit of the
Holders of the Notes, the Issuer, the Guarantors and the Trustee agree as
follows:
ARTICLE
ONE
DEFINITIONS
Section
1.01. Definitions. (a)
Capitalized terms used in this instrument and not otherwise defined herein shall
have the meanings assigned to such terms in the Original Indenture or in the
form of Note attached as Exhibit A hereto.
“Additional Interest” has the
meaning provided in Section 2.05(b) hereof.
“Additional Notes” has the
meaning provided in Section 2.02 hereof.
“Additional Shares” has the
meaning specified in Section 2.10.
“Applicable Conversion Period”
means, with respect to any Note:
(i) if
the relevant Conversion Date occurs prior to the date that is 15 Business Days
prior to the Stated Maturity and a Cash Settlement or Combination Settlement
applies, the 10 consecutive Trading-Day period beginning on and including the
second Trading Day after the related Conversion Date; and
(ii) if
the relevant Conversion Date occurs on or after the date that is 15 Business
Days prior to the Stated Maturity, and regardless of the Settlement Method, the
10 consecutive Trading Days beginning on and including the 12th Scheduled
Trading Day immediately preceding the Stated Maturity.
“Applicable Consideration” has
the meaning specified in Section 2.11 hereof.
“Business Day” means, with
respect to any Note, any day, other than a Saturday, Sunday or any other day on
which banking institutions in The City of New York are authorized or obligated
by law or executive order to close.
“Cash Settlement” has the
meaning set forth in Section 12.12 hereof.
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“Change of Control” means the
occurrence at any time of any of any of the following events: (1) consummation
of any transaction or event (whether by means of a share exchange or tender
offer applicable to Lexington Common Shares, a liquidation, consolidation,
recapitalization, reclassification, combination or merger of the Issuer or a
sale, lease or other transfer of all or substantially all of the Issuer’s
consolidated assets) or a series of related transactions or events pursuant to
which all of the outstanding Lexington Common Shares are exchanged for or
converted into the right to receive cash, securities or other property; (2) any
“person” or “group” (as such terms are used for purposes of Sections 13(d) and
14(d) of the Exchange Act, whether or not applicable), other than the Issuer or
any Operating Partnership or any of their respective majority-owned Subsidiaries
or any employee benefit plan of the Issuer or such Subsidiaries, is or becomes
the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of more than 50% of the total voting power in the
aggregate of all classes of shares of beneficial interest of the Issuer then
outstanding entitled to vote generally in elections of trustees; (3) during any
period of 12 consecutive months after the date of original issuance of the
Notes, persons who at the beginning of such 12-month period constituted the
Board of Trustees of the Issuer, together with any new persons whose election,
appointment, designation or nomination was approved by a vote of a majority of
the persons then still comprising the Board of Trustees of the Issuer who were
either members of the Board of Trustees of the Issuer at the beginning of such
period or whose election, appointment, designation or nomination for election
was previously so approved, cease for any reason to constitute a majority of the
Board of Trustees of the Issuer; or (4) the Issuer or a wholly-owned Subsidiary
of the Issuer ceases to be the general partner of all of the Operating
Partnerships. Notwithstanding the foregoing, even if any of the events specified
in the preceding clauses (1) through (4) have occurred, except as specified in
clause (x), a Change of Control shall not be deemed to have occurred if either:
(x) the Closing Sale Price of Lexington Common Share for any five Trading Days
within (i) the period of 10 consecutive Trading Days ending immediately after
the later of the Change of Control or the public announcement of the Change of
Control, in the case of a Change of Control relating to an acquisition of shares
of beneficial interest, or (ii) the period of 10 consecutive Trading Days ending
immediately after the Change of Control, in the case of a Change of Control
relating to a merger, consolidation or asset sale, lease or other transfer,
equals or exceeds 105% of the Conversion Price applicable to the Notes in effect
on each of those Trading Days; provided, however, that the
exception to the definition of “Change of Control” specified in this clause (x)
shall not apply in the context of a Change of Control for purposes of Section
2.10 or Section 2.11(d); or (y) at least 90% of the consideration paid for
Lexington Common Shares (excluding cash payments for fractional shares and cash
payments made pursuant to dissenters’ appraisal rights) in a merger,
consolidation or other transaction otherwise constituting a Change of Control
consists of shares of common stock (or depositary receipts or other certificates
representing or evidencing common equity interests) traded on a national
securities exchange or quoted on an established automated over-the-counter
trading market in the United States (or will be so traded or quoted immediately
following such merger, consolidation or other transaction) and as a result of
the merger, consolidation or other transaction the Notes become exchangeable or
convertible into such shares of common stock (or depositary receipts or other
certificates representing or evidencing common equity interests). For the
purposes of this definition, “person” includes any syndicate or group that would
be deemed to be a “person” under Section 13(d)(3) of the Exchange
Act.
“Change of Control Purchase
Date” has the meaning provided in Section 2.09 hereof.
“Change of Control Purchase
Notice” has the meaning provided in Section 2.09 hereof.
“Change of Control Purchase
Price” has the meaning provided in Section 2.09 hereof.
“Closing Sale Price” means,
with respect to the Lexington Common Shares or other capital stock or similar
equity interests or other publicly traded securities on any date, the closing
sale price per share (or, if no closing sale price is reported, the average of
the closing bid and ask prices or, if more than one in either case, the average
of the average closing bid and the average closing ask prices) on such date as
reported on the principal United States securities exchange on which the
Lexington Common Shares or such other capital stock or similar equity interests
or other securities are traded or, if the Lexington Common Shares or such other
capital stock or similar equity interests or other securities are not listed on
a United States national or regional securities exchange, as reported by Pink
Sheets LLC or another established over-the-counter trading market in the United
States. The Closing Sale Price shall be determined without regard to after-hours
trading or extended market making. In the absence of the foregoing, the Issuer
shall determine the Closing Sale Price on such basis as it considers
appropriate.
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“Code” means the Internal
Revenue Code of 1986, as amended, and the regulations thereunder.
“Combination Settlement” has
the meaning set forth in Section 12.12 hereof.
“Conversion Agent” means the
office or agency designated by the Issuer where the Notes may be presented for
conversion.
“Conversion Price” means, as
of any date of determination, for $1,000 principal amount of Notes, the quotient
of $1,000 divided by the Conversion Rate in effect as of such date, rounded to
the nearest $0.01, with $0.005 rounded upward.
“Conversion Obligation” has
the meaning provided in Section 2.12 hereof.
“Conversion Rate” means the
number of Lexington Common Shares into which each $1,000 principal amount of
Notes are convertible into, as the same shall be adjusted from time to time in
accordance with the provisions hereof and of the Notes, which initially shall be
141.1383 Lexington Common Shares for each $1,000 principal amount of
Notes.
“Daily Conversion Value”
means, for each of the 10 consecutive Trading Days during the Applicable
Conversion Period, 1/10 of the product of (i) the Conversion Rate on such day
and (ii) the Daily VWAP of Lexington Common Shares on such day.
“Daily Settlement Amount” has
the meaning provided in Section 2.12 hereof.
“Daily VWAP” means for each of
the 10 consecutive Trading Days during the Applicable Conversion Period, the per
share volume-weighted average price as displayed under the heading “Bloomberg
VWAP” on Bloomberg page “LXP.N <equity> AQR” (or any successor thereto) in
respect of the period from the scheduled open of trading until the scheduled
close of trading of the primary trading session on such Trading Day (or if such
volume-weighted average price is unavailable, the market value of one Lexington
Common Share on such Trading Day, determined using a volume-weighted average
method, by a nationally recognized independent investment banking firm retained
for this purpose by us). Daily VWAP will be determined without regard to after
hours trading or any other trading outside of the regular trading session
trading hours
“Declaration of Trust of the
Issuer” means the Amended and Restated Declaration of Trust of the
Issuer, dated as of December 31, 2006, as the same may be amended, supplemented
or otherwise modified from time to time.
“Depositary” has the meaning
provided in Section 2.03 hereof.
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“Effective Date” has the
meaning specified in Section 2.10.
“Exchange Act” means the
Securities Exchange Act of 1934, as amended.
“Expiration Time” has the
meaning specified in Section 2.14.
“Guarantee” means the full and
unconditional guarantee provided by each of the Guarantors in respect of the
Notes as made applicable to the Notes in accordance with the provisions of
Section 2.20 hereof.
“Guarantor” means each
Subsidiary of the Issuer in existence on the date hereof that is a Lexington
Credit Agreement Obligor, and any future Subsidiary Guarantor that is required
to guarantee the Securities under the terms of the Original Indenture; provided, however, that, in
the event any Subsidiary Guarantor is released pursuant to Section 1404 of the
Original Indenture, such entity shall no longer be deemed a
“Guarantor.”
“Initial Purchasers” means
each of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated; ▇.▇. ▇▇▇▇▇▇
Securities Inc.; KeyBanc Capital Markets Inc.; Barclays Capital Inc.; BB&T
Capital Markets, a division of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇▇, LLC; and RBS Securities
Inc. (each, an “Initial Purchaser”).
“interest” means, when used
with reference to the Notes, any interest payable under the terms of the Notes,
including Additional Interest, if any.
“Indenture” has the meaning
provided in the preamble of this instrument.
“Interest Payment Date” has
the meaning provided in Section 2.05 hereof.
“Issuer” has the meaning
specified in the first paragraph of this instrument until a successor Person
shall have become such pursuant to the applicable provisions of the Indenture,
and thereafter “Issuer” shall mean such successor Person.
“Issuer Notice” has the
meaning provided in Section 2.09 hereof.
“Lexington Common Shares”
means shares of beneficial interest, par value $0.0001 per share, of the Issuer
classified as “common stock.”
“Lexington Credit Agreement”
means the Credit Agreement, dated as of February 13, 2009, among the Issuer and
the Operating Partnerships, collectively as borrowers, each of the lenders party
thereto, and KeyBanc, National Association, as agent, as the same may be
amended, supplemented or otherwise modified from time to time, and any successor
credit agreement thereto (whether by renewal, replacement, refinancing or
otherwise) that the Issuer in good faith designates to be its principal credit
agreement (taking into account the maximum principal amount of the credit
facility provided thereunder, the recourse nature of the agreement and such
other factors as the Issuer deems reasonable in light of the circumstances),
such designation (or the designation that at a given time there is no principal
credit agreement) to be made by an Officers’ Certificate delivered to the
Trustee.
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“Lexington Credit Agreement
Obligor” means every Subsidiary of the Issuer that is a borrower or
guarantor under the Lexington Credit Agreement from time to time; provided that, to the extent
that any or all of such Subsidiaries cease to be borrowers or guarantors under
the Lexington Credit Agreement, such Subsidiaries shall cease to be Lexington
Credit Agreement Obligors.
“Market Disruption Event”
means (i) a failure by the primary United States national or regional securities
exchange or market on which Lexington Common Shares are listed or admitted to
trading to open for trading during its regular trading session or (ii) the
occurrence or existence prior to 1:00 p.m., New York City time, on any Scheduled
Trading Day for Lexington Common Shares for more than one half-hour period in
the aggregate during regular trading hours of any suspension or limitation
imposed on trading (by reason of movements in price exceeding limits permitted
by the relevant stock exchange or market or otherwise) in Lexington Common
Shares or in any options, contracts or future contracts relating to Lexington
Common Shares.
“Notes” has the meaning
provided in Section 2.01 hereof which shall be substantially in the form
attached as Exhibit A hereto.
“Operating Partnership” means
each of Lepercq Corporate Income Fund L.P., Lepercq Corporate Income Fund II
L.P. and Net 3 Acquisition L.P. and their respective successors.
“Optional Repurchase Date” has
the meaning provided in Section 2.08 hereof.
“Optional Repurchase Notice”
has the meaning provided in Section 2.08 hereof.
“Optional Repurchase Price”
has the meaning provided in Section 2.08 hereof.
“Person” means any individual,
firm, corporation, partnership, association, joint venture, tribunal, limited
liability company, trust, government or political subdivision or agency or
instrumentality thereof, or any other entity or organization.
“Physical Settlement” has the
meaning set forth in Section 12.12 hereof.
“PORTALSM Market” means The PORTAL
Market operated by the Nasdaq Stock Market or any successor
thereto.
“Purchase Agreement” means the
Purchase Agreement dated January 20, 2010, among the Issuer, the Operating
Partnerships party thereto and the Initial Purchasers.
“Redemption Date” means, with
respect to any Note or portion thereof to be redeemed in accordance with the
provisions of Section 2.07 hereof, the date fixed for such redemption in
accordance with the provisions of Section 2.07 hereof.
“Redemption Price” has the
meaning provided in Section 2.07 hereof.
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“Reference Dividend” has the
meaning specified in Section 2.14, subject to adjustment as provided in Section
2.14.
“Regular Record Date” has the
meaning provided in Section 2.05 hereof.
“Restricted Securities” has
the meaning specified in Section 2.25.
“Rule 144 Obligations” has the
meaning specified in Section 2.05(b)(ii) hereof.
“Rule 144A” means Rule 144A as
promulgated under the Securities Act as it may be amended from time to time
hereafter.
“Scheduled Trading Day” means
a day that is scheduled to be a Trading Day on the primary United States
national securities exchange or market on which Lexington Common Shares are
listed or admitted for trading. If Lexington Common Shares are not so listed or
admitted for trading, “Scheduled Trading Day” means a Business Day.
“Securities Act” means the
Securities Act of 1933, as amended.
“Settlement Method” means Cash
Settlement, Combination Settlement, or Physical Settlement.
“Specified Dollar Amount” has
the meaning set forth in Section 12.12 hereof.
“Share Price” has the meaning
specified in Section 2.10 hereof.
“Spin-Off” has the meaning
specified in Section 2.14 hereof.
“Trading Day” means a day
during which trading in securities generally occurs on the New York Stock
Exchange or, if Lexington Common Shares are not then listed on the New York
Stock Exchange, on the principal other United States national or regional
securities exchange on which Lexington Common Shares are then
traded.
“Trading Price” means, with
respect to the Notes on any date of determination, the average of the secondary
market bid quotations per $1,000 principal amount of Notes obtained by the
Trustee for a $2,000,000 principal amount of Notes at approximately 3:30 p.m.,
New York City time, on such determination date from two independent nationally
recognized securities dealers selected by the Issuer, which may include one or
more of the Initial Purchasers or any successor to such entities. If
at least two such bids cannot reasonably be obtained by the Trustee, but one
such bid can reasonably be obtained by the Trustee, then one bid shall be
used. If the Trustee cannot reasonably obtain at least one bid for a
$2,000,000 principal amount of Notes from a nationally recognized securities
dealer or, in the reasonable judgment of the Issuer, the bid quotations are not
indicative of the secondary market value of the Notes, then the Trading Price
per $1,000 principal amount of Notes shall be deemed to be less than 98% of the
product of the Closing Sale Price of Lexington Common Shares and the Conversion
Rate on such determination date.
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“Trust Indenture Act” means
the Trust Indenture Act of 1939, as amended by the Trust Indenture Reform Act of
1990, as in force at the date as of which the Original Indenture was executed;
provided, however, that in the event
the Trust Indenture Act is amended after such date, “Trust Indenture Act” means,
to the extent required by any such amendment, the Trust Indenture Act of 1939 as
so amended.
(b) References
to “interest” in the Indenture shall be deemed to include Additional Interest,
if any, payable in respect of the Notes, except to the extent otherwise provided
or where the context otherwise requires.
ARTICLE
TWO
TERMS
Section
2.01. Title. The
Notes shall constitute a series of Securities designated as the “6.00%
Convertible Guaranteed Notes due 2030” of the Issuer in respect of which the
Guarantors shall be guarantors.
Section
2.02. Aggregate Principal
Amount. The aggregate principal amount of Notes which may be
authenticated and delivered under the Indenture is initially limited in
aggregate principal amount to $100,000,000 (or up to $115,000,000 if the Initial
Purchasers’ option to purchase additional Notes described in the Purchase
Agreement is exercised), except for Notes authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Notes
pursuant to Sections 304, 305, 306, 906, 1107 or 1203 of the Original Indenture
and except for any Notes which, pursuant to Section 303 of the Original
Indenture, are deemed never to have been authenticated and delivered thereunder;
provided that the Issuer may from time to time, without the consent of the
Holders of the Notes, subject to compliance with the terms of the Indenture,
increase the principal amount of the Notes by issuing additional Securities in
the future (the “Additional Notes”) having the same terms and ranking equally
and ratably with the Notes in all respects and with the same CUSIP number as the
Notes, except for the difference in the issue price and interest accrued prior
to the issue date of such Additional Notes, provided that such Additional Notes
constitute part of the same issue as the Notes for U.S. federal income tax
purposes. Any Additional Notes shall be treated as a single series
with the Notes under the Indenture and shall have the same terms as to status,
redemption, repurchase, exchange and otherwise as the Notes. For
clarity, the limitations in this Section 2.02, including the limitation on the
aggregate principal amount of the Notes which may be authenticated and delivered
under the Indenture, shall not apply or be construed to apply to any series of
Securities, other than the Notes, that may be authenticated and delivered under
the Indenture.
Section
2.03. Registered Securities in
Book-Entry Form. The Notes shall be issuable initially in the
form of one or more global Securities registered in the name of The Depository
Trust Company’s nominee, and shall be deposited with, or on behalf of, The
Depository Trust Company, New York, New York (the “Depositary”). The
Notes may be surrendered for registration of transfer and for conversion
pursuant to Section 305 of the Original Indenture at the office or agency of the
Issuer (including the Trustee) maintained for such purpose in the Borough of
Manhattan, The City of New York, or at any other office or agency maintained by
the Issuer for such purpose.
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Section
2.04. Stated Maturity of
Principal. The Stated Maturity of the principal of the Notes
shall be January 15, 2030.
Section
2.05. (a) Interest. The
Notes shall bear interest at the rate of 6.00% per annum from, and including,
January 26, 2010 or from the most recent Interest Payment Date to which interest
has been paid or provided for, as the case may be, and shall be payable
semi-annually in arrears on January 15 and July 15 of each year (each, an
“Interest Payment Date”), commencing on July 15, 2010, until the principal
thereof is paid or duly made available for payment, to the Persons in whose
names such Notes are registered at the close of business on the January 1 or
July 1 (whether or not a Business Day) immediately preceding the applicable
Interest Payment Date (each, a “Regular Record Date”). Interest
payable on each Interest Payment Date shall equal the amount of interest accrued
for the period commencing on and including the immediately preceding Interest
Payment Date in respect of which interest has been paid (or commencing on and
including January 26, 2010, if no interest has been paid) and ending on and
including the day preceding such Interest Payment Date. Interest on
the Notes shall be computed on the basis of a 360-day year consisting of twelve
30-day months.
Notwithstanding
anything to the contrary contained herein, if the Issuer shall redeem the Notes
in accordance with the provisions of Section 2.07 hereof, or if a Holder shall
surrender a Note for repurchase by the Issuer in accordance with the provisions
of 2.08 or 2.09 hereof, subject to the next succeeding sentence, accrued and
unpaid interest (including Additional Interest, if any) shall be payable to the
Holder that shall have surrendered such Note for redemption or repurchase, as
the case may be. However, if the Redemption Date or Optional
Repurchase Date or Change of Control Purchase Date, as the case may be, for a
Note falls after the Regular Record Date and on or prior to the related Interest
Payment Date, accrued and unpaid interest (including Additional Interest, if
any) due on such Interest Payment Date shall be payable instead to the Person in
whose name such Note is registered at the close of business on the related
Regular Record Date.
(b) Additional
Interest. The Issuer shall be required to pay additional
interest on the Notes (“Additional Interest”) if:
(i) at
any time during the six-month period beginning on, and including, the date which
is six months after the date of original issuance of the Notes, the Issuer fails
to timely file any document or report that the Issuer is required to file with
the Securities and Exchange Commission pursuant to Section 13 or 15(d) of the
Exchange Act, as applicable (other than current reports on Form 8-K), or the
Notes are not otherwise freely tradable by Holders other than an Affiliate of
the Issuer (as a result of restrictions pursuant to U.S. securities law or the
terms of this Indenture or the Notes). Additional Interest under this
Section 2.05(b)(i) will accrue on the Notes at the rate of 0.50% per annum of
the principal amount of Notes outstanding for each day during such period for
which the Issuer’s failure to file continues; provided that the Issuer will
have fourteen (14) days, in the aggregate, to cure any such late filings before
any Additional Interest shall accrue; or
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(ii) as
of the 365th day after the last date of original issuance of the Notes (x) the
restrictive legend on the Notes has not been removed, or (y) the Notes are not
freely tradable pursuant to Rule 144 under the Securities Act without volume
restrictions by Holders other than an Affiliate of the Issuer (without
restrictions pursuant to U.S. securities law or the terms of the Indenture or
the Notes) (collectively, the “Rule 144 Obligations”). Additional
Interest under this Section 2.05(b)(ii) will accrue on the Notes at the rate of
0.50% per annum of the principal amount of Notes outstanding for each day until
the Issuer has satisfied its Rule 144 Obligations.
Additional
Interest will be payable in arrears on each Interest Payment Date following
accrual in the same manner as described in Section 2.05(a) hereof.
Section
2.06. Place of Payment. The principal of
and the interest on the Notes shall be payable at the office or agency of the
Issuer (including the Trustee) maintained for such purpose in the Borough of
Manhattan, The City of New York in the in the manner specified in the
Indenture.
Section
2.07. Redemption. The Issuer shall
not have the right to redeem any Notes prior to January 15, 2017, except to
preserve the Issuer’s status as a real estate investment trust for U.S. federal
income tax purposes. If, at any time, the Issuer determines it is
necessary to redeem the Notes in order to preserve its status as a real estate
investment trust for U.S. federal income tax purposes, the Issuer may, upon not
less than 30 nor more than 60 days’ prior written notice by mail to the Holders
of the Notes, redeem the Notes in whole or in part, for cash equal to 100% of
the principal amount of the Notes to be redeemed plus accrued and unpaid
interest (and Additional Interest, if any) to, but not including, the Redemption
Date. In such case, the Issuer shall provide the Trustee with an
Officers’ Certificate evidencing that the Board of Trustees of the Issuer has,
in good faith, made the determination that it is necessary to redeem the Notes
in order to preserve the Issuer’s status as a real estate investment trust for
U.S. federal income tax purposes.
The
Issuer shall have the right to redeem the Notes, in whole or in part at any time
or from time to time, on or after January 15, 2017 upon not less than 30 nor
more than 60 days’ prior written notice by mail to the Holders of the Notes, at
a redemption price (“Redemption Price”) for cash equal to 100% of the principal
amount of the Notes to be redeemed plus accrued and unpaid interest (and
Additional Interest, if any) to, but not including, the Redemption
Date. If less than all the Notes are to be redeemed, the Trustee
shall select the Notes to be redeemed (in principal amounts of $1,000 and
integral multiples thereof) on a pro rata basis or by such
other method the Trustee considers fair and appropriate. The Trustee
shall make the selection at least 30 days but not more than 60 days before the
Redemption Date from Outstanding Notes not previously called for
redemption. Notes and portions of the principal amount thereof
selected for redemption shall be in integral multiples of $1,000. The
Trustee shall notify the Issuer promptly of the Notes or portions of the
principal amount thereof to be redeemed. If the Trustee selects a
portion of a Note for partial redemption and a Holder converts a portion of the
same Note in accordance with the provisions of Section 2.11 hereof before
termination of the conversion right with respect to the portion of the Note so
selected, the converted portion of such Note shall be deemed to be from the
portion selected for redemption. Notes that have been converted
pursuant to Section 2.11 hereof during a selection of Notes to be redeemed shall
be treated by the Trustee as Outstanding for the purpose of such
selection.
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In the
event of any redemption of the Notes in part, the Issuer shall not be required
to: (i) issue or register the transfer or conversion of any Note pursuant to
Section 305 of the Original Indenture during a period beginning at the opening
of business 15 days before any selection of Notes for redemption and ending at
the close of business on the earliest date on which the relevant notice of
redemption is deemed to have been given to all Holders of Notes to be so
redeemed, or (ii) register the transfer or conversion pursuant to Section 305 of
the Original Indenture of any Note so selected for redemption, in whole or in
part, except the unredeemed portion of any Note being redeemed in
part.
In
addition to those matters set forth in Section 1104 of the Original Indenture, a
notice of redemption sent to the Holders of Notes to be redeemed in accordance
with the provisions of the two preceding paragraphs shall state:
(a) the
name and address of the Trustee, the Paying Agent and Conversion
Agent;
(b) the
then current Conversion Rate;
(c) that
Notes called for redemption may be converted pursuant to Section 2.11 hereof at
any time prior to the close of business on the second Business Day immediately
preceding the Redemption Date; and
(d) that
Holders who wish to convert Notes pursuant to Section 305 of the Original
Indenture must comply with the procedures relating thereto specified in Section
2.13 hereof.
Section
2.08. Repurchase
Rights. A Holder of Notes
shall have the right to require the Issuer to repurchase such Holder’s Notes, in
whole or in part (in principal amounts of $1,000 or an integral multiple
thereof), on each of January 15, 2017, January 15, 2020 and January 15, 2025
(each, an “Optional Repurchase Date”) for cash equal to 100% of the principal
amount of the Notes to be repurchased plus accrued and unpaid interest (and
Additional Interest, if any) to, but not including, the Optional Repurchase Date
(such amount, the “Optional Repurchase Price”), subject to satisfaction by or on
behalf of the Holder of the requirements set forth below.
On or
before the 20th Business Day prior to each Optional Repurchase Date, the Issuer
shall provide a written notice by first-class mail to the Trustee, any Paying
Agent and all Holders (and to beneficial owners as required by applicable
law). The notice shall include a form of Optional Repurchase Notice
to be completed by the Holder and shall state:
(a) the
date by which the Optional Repurchase Notice must be delivered to the Paying
Agent;
(b) the
Optional Repurchase Date;
(c) the
Optional Repurchase Price;
-11-
(d) the
name and address of the Trustee, the Paying Agent and the Conversion
Agent;
(e) that
Notes must be surrendered to the Paying Agent to collect payment of the Optional
Repurchase Price and the procedures that holders must follow to require the
Issuer to repurchase their Notes;
(f) that
the Optional Repurchase Price for any Note as to which an Optional Repurchase
Notice has been duly given shall be paid within two Business Days after the
later of the Optional Repurchase Date or the time at which such Notes are
surrendered for repurchase;
(g) that,
unless the Issuer defaults in making payment of the Optional Repurchase Price,
interest on Notes surrendered for repurchase shall cease to accrue on and after
the Optional Repurchase Date;
(h) that
Notes in respect of which an Optional Repurchase Notice is provided by a Holder
shall not be convertible in accordance with their terms and pursuant to Section
2.11 hereof even if otherwise convertible unless such Holder validly withdraws
such Optional Repurchase Notice in accordance with the provisions of this
Section 2.08; and
(i)
the CUSIP number of the Notes.
The
Issuer shall also disseminate a press release through PR Businesswire, Dow ▇▇▇▇▇
& Company, Inc. or Bloomberg Business News containing the information
specified in such notice or publish such information in a newspaper of general
circulation in The City of New York, or through such other public medium as the
Issuer shall deem appropriate at such time. In addition, the Issuer
shall post any such press release on its website or disseminate it through any
other appropriate public medium.
A Holder
may exercise its rights specified in this Section 2.08 by delivery of a written
notice of repurchase (an “Optional Repurchase Notice”) to the Paying Agent
during the period beginning at any time from the opening of business on the date
that is 20 Business Days prior to the applicable Optional Repurchase Date until
the close of business on the second Business Day prior to such Optional
Repurchase Date, stating:
(a) if
such Notes are in certificated form, the certificate number(s) of the Notes
which the Holder shall deliver to be repurchased;
(b) the
portion of the principal amount of the Notes to be repurchased, in integral
multiples of $1,000, provided that the remaining principal amount of Notes is in
an authorized denomination; and
(c) that
such Notes shall be repurchased by the Issuer pursuant to the applicable
provisions hereof and the Notes.
-12-
The
Paying Agent shall promptly notify the Issuer in writing of the receipt by it of
any Optional Repurchase Notice.
Book-entry
transfer of Notes in book-entry form in compliance with appropriate procedures
of the Depositary or delivery of Notes in certificated form, together with all
necessary endorsements, to the Paying Agent at the offices of the Paying Agent
shall be a condition to the receipt by the Holder of the Optional Repurchase
Price therefor. Holders electing to require the Issuer to repurchase
Notes must effect such transfer or delivery to the Paying Agent on or prior to
the Optional Repurchase Date to receive payment of the Optional Repurchase Price
on or within two Business Days after the Optional Repurchase
Date. The Issuer shall pay the Optional Repurchase Price within two
Business Days after the later of the Optional Repurchase Date or the time of
such transfer or delivery of the Notes.
An
Optional Repurchase Notice may be withdrawn in whole or in part by a Holder by
means of a written notice of withdrawal delivered to the office of the Paying
Agent prior to the close of business on the second Business Day prior to the
Optional Repurchase Date specifying:
(a) the
Holder’s name;
(b) the
principal amount of Notes in respect of which the Optional Repurchase Notice is
being withdrawn, which must be an integral multiple of $1,000;
(c) if
the Notes subject to the notice of withdrawal are in certificated form, the
certificate number(s) of all Notes subject to the notice of withdrawal;
and
(d) the
principal amount of Notes, if any, that remains subject to the Optional
Repurchase Notice, which must be an integral multiple of $1,000.
If Notes
subject to the notice of withdrawal are in book-entry form, the above notices
must also comply with the applicable procedures of the Depositary.
On or
before 10:00 a.m. (New York City time) on the Optional Repurchase Date, the
Issuer shall deposit with the Paying Agent (or if the Issuer or an Affiliate of
the Issuer is acting as the Paying Agent, shall segregate and hold in trust)
money sufficient to pay the aggregate Optional Repurchase Price of the Notes to
be purchased pursuant to this Section 2.08. If the Paying Agent
holds, in accordance with the terms of the Indenture, money sufficient to pay
the Optional Repurchase Price of such Notes on the Optional Repurchase Date,
then on and after such date, such Notes shall cease to be Outstanding and
interest on such Notes shall cease to accrue, and all rights of the Holder of
such Notes shall terminate (other than the right to receive the Optional
Repurchase Price after delivery or transfer of the Notes). Such shall
be the case whether or not book-entry transfer of the Notes in book-entry form
is made and whether or not Notes in certificated form, together with the
necessary endorsements, are delivered to the Paying Agent.
Notwithstanding
the foregoing, no Notes may be purchased by the Issuer in accordance with the
provisions of this Section 2.08 if there has occurred and is continuing an Event
of Default with respect to the Notes (other than a default in the payment of the
Optional Repurchase Price).
-13-
To the
extent legally required in connection with a repurchase of Notes, the Issuer
shall comply with the provisions of Rule 13e-4 and other tender offer rules
under the Exchange Act then applicable, if any, and shall file a Schedule TO or
any other schedule required under the Exchange Act.
The
Issuer may arrange for a third party to purchase Notes for which the Issuer has
received a valid Optional Repurchase Notice that has not been properly
withdrawn, in the manner and otherwise in compliance with the requirements set
forth herein and in the Notes. If a third party purchases any Notes
under such circumstances, then interest shall continue to accrue on the Notes
and such Notes shall continue to be Outstanding after the Optional Repurchase
Date for all purposes of the Indenture and, subject to compliance with
applicable law, shall be fungible with all other Notes then
Outstanding.
Section
2.09. Repurchase at Option of
Holders upon a Change of Control. If a Change of
Control occurs at any time prior to January 15, 2017, a Holder of Notes shall
have the right to require the Issuer to repurchase such Holder’s Notes, in whole
or in part (in principal amounts of $1,000 or an integral multiple thereof) for
cash equal to 100% of the principal amount of the Notes to be repurchased, plus
accrued and unpaid interest (and Additional Interest, if any) to, but not
including, the Change of Control Purchase Date (such amount, the “Change of
Control Purchase Price”), subject to satisfaction by or on behalf of the Holder
of the requirements set forth below. If a Change of Control occurs on
or after January 15, 2017, Holders of Notes shall not have any right to require
the Issuer to repurchase their Notes, except in accordance with Section
2.08.
Within 20
days after the occurrence of a Change of Control, the Issuer shall mail a
written notice of Change of Control and of the repurchase right arising as a
result of the Change of Control (the “Issuer Notice”) by first-class mail to the
Trustee, any Paying Agent and to each Holder (and to beneficial owners as
required by applicable law). The notice shall include a form of
Change of Control Purchase Notice to be completed by the Holder and shall
state:
(a) the
events causing a Change of Control and the date of such Change of
Control;
(b) the
date by which the Change of Control Purchase Notice must be delivered to the
Paying Agent;
(c) the
date on which the Issuer shall repurchase Notes upon a Change of Control, which
must be not less than 15 days nor more than 30 days after the date of the Issuer
Notice (such date, the “Change of Control Purchase Date”);
(d) the
Change of Control Purchase Price;
(e) the
name and address of the Trustee, the Paying Agent and the Conversion
Agent;
-14-
(f) that
Notes in respect of which a Change of Control Purchase Notice is provided by a
Holder shall not be convertible pursuant to Section 2.11 hereof unless such
Holder validly withdraws such Change of Control Purchase Notice in accordance
with the provisions of this Section 2.09;
(g) that
Notes must be surrendered to the Paying Agent to collect payment of the Change
of Control Purchase Price and the procedures that Holders must follow to require
the Issuer to repurchase their Notes;
(h) that
the Change of Control Purchase Price for any Note as to which a Change of
Control Purchase Notice has been duly given shall be paid within two Business
Days after the later of the Change of Control Purchase Date or the time at which
such Notes are surrendered for repurchase;
(i) that,
unless the Issuer defaults in making payment of the Change of Control Purchase
Price, interest on Notes surrendered for repurchase shall cease to accrue on and
after the Change of Control Purchase Date; and
(j) the
CUSIP number of the Notes.
The
Issuer shall also disseminate a press release through PR Businesswire, Dow ▇▇▇▇▇
& Company, Inc. or Bloomberg Business News announcing the occurrence of such
Change of Control or publish such information in a newspaper of general
circulation in The City of New York, or through such other public medium as the
Issuer shall deem appropriate at such time. In addition, the Issuer
shall post any such press release on its website or disseminate it through any
other appropriate medium.
A Holder
may exercise its rights specified in this Section 2.09 upon delivery of a
written notice of such Holder’s exercise of its repurchase right (a “Change of
Control Purchase Notice”) to the Paying Agent at any time prior to the close of
business on the third Business Day prior to the Change of Control Purchase Date,
stating:
(a) if
such Notes are in certificated form, the certificate number(s) of the Notes
which the Holder shall deliver to be repurchased;
(b) the
portion of the principal amount of the Notes to be repurchased, in multiples of
$1,000, provided that the remaining principal amount of Notes is in an
authorized denomination; and
(c) that
such Note shall be repurchased pursuant to the applicable provisions hereof and
of the Notes.
The
Paying Agent shall promptly notify the Issuer in writing of the receipt by it of
any Change of Control Purchase Notice.
-15-
Book-entry
transfer of Notes in book-entry form in compliance with appropriate procedures
of the Depositary or delivery of Notes in certificated form (together with all
necessary endorsements) to the Paying Agent at the offices of the Paying Agent
shall be a condition to the receipt by the Holder of the Change of Control
Purchase Price therefor. Holders electing to require the Issuer to
repurchase Notes must effect such transfer or delivery to the Paying Agent on or
prior to the Change of Control Purchase Date to receive payment of the Change of
Control Purchase Price on or within two Business Days after the Change of
Control Purchase Date. The Issuer shall pay the Change of Control
Purchase Price within two Business Days after the later of the Change of Control
Purchase Date or the time of such transfer or delivery of the
Notes.
A Change
of Control Purchase Notice may be withdrawn in whole or in part by a Holder by
means of a written notice of withdrawal delivered to the office of the Paying
Agent prior to the close of business on the third Business Day prior to the
Change of Control Purchase Date specifying:
(a) the
Holder’s name;
(b) if
the Notes subject to the notice of withdrawal are in certificated form, the
certificate number(s) of all Notes subject to the notice of
withdrawal;
(c) the
principal amount of Notes in respect of which the Change of Control Purchase
Notice is being withdrawn, which must be an integral multiple of $1,000;
and
(d) the
principal amount of Notes, if any, that remains subject to the Change of Control
Purchase Notice, which must be an integral multiple of $1,000.
If Notes
subject to the notice of withdrawal are in book-entry form, the above notices
must also comply with the applicable procedures of the Depositary.
On or
before 10:00 a.m. (New York City time) on the Change of Control Purchase Date,
the Issuer shall deposit with the Paying Agent (or if the Issuer or an Affiliate
of the Issuer is acting as the Paying Agent, shall segregate and hold in trust)
money sufficient to pay the aggregate Change of Control Purchase Price of the
Notes to be purchased pursuant to this Section 2.09. If the Paying
Agent holds, in accordance with the terms of the Indenture, money sufficient to
pay the Change of Control Purchase Price of such Notes on the Change of Control
Purchase Date, then, on and after such date, such Notes shall cease to be
Outstanding and interest on such Notes shall cease to accrue and all rights of
the Holders of such Notes shall terminate (other than the right to receive the
Change of Control Purchase Price after delivery or transfer of the
Notes). Such shall be the case whether or not book-entry transfer of
the Notes in book-entry form is made and whether or not Notes in certificated
form, together with the necessary endorsements, are delivered to the Paying
Agent.
Notwithstanding
the foregoing, no Notes may be repurchased by the Issuer in accordance with the
provisions of this Section 2.09 if there has occurred and is continuing an Event
of Default with respect to the Notes (other than a default in the payment of the
Change of Control Purchase Price).
To the
extent legally required in connection with a repurchase of Notes, the Issuer
shall comply with the provisions of Rule 13e-4 and other tender offer rules
under the Exchange Act then applicable, if any, and will file a Schedule TO or
any other schedule required under the Exchange Act.
-16-
The
Issuer may arrange for a third party to purchase Notes for which the Issuer has
received a valid Change of Control Purchase Notice that has not been properly
withdrawn, in the manner and otherwise in compliance with the requirements set
forth herein and in the Notes. If a third party purchases any Notes
under such circumstances, then interest shall continue to accrue on the Notes
and such Notes shall continue to be Outstanding after the Change of Control
Purchase Date for all purposes of the Indenture and, subject to compliance with
applicable law, shall be fungible with all other Notes then
Outstanding.
Section
2.10. Adjustment to Conversion
Rate Upon Certain Change of Control Transactions. If a Change of
Control occurs prior to January 15, 2017 as a result of a transaction or event
described in clauses (1) or (2) of the definition of Change of Control and a
Holder elects to convert its Notes in connection with such Change of Control
pursuant to Section 2.11(d), the Issuer shall increase the applicable Conversion
Rate for such Notes surrendered for conversion by a number of additional
Lexington Common Shares (the “Additional Shares”) as specified
below. A conversion of Notes shall be deemed for these purposes to be
“in connection with” such a Change of Control if the notice of conversion of the
Notes is received by the Conversion Agent on any date from and including the
date that is the Effective Date (as defined below) of such Change of Control up
to and including the 30th Business Day following the Effective Date of such
Change of Control or, if applicable, the related Change of Control Repurchase
Date.
The
number of Additional Shares shall be determined by reference to the table below
and is based on the date on which such Change of Control transaction becomes
effective (the “Effective Date”) and the price (the “Share Price”) paid per
Lexington Common Share in such Change of Control transaction. If
holders of Lexington Common Shares receive only cash in a Change of Control
transaction described in clause (1) of the definition of such term, the Share
Price shall be the cash amount paid per Lexington Common Share. In
all other cases, the Share Price shall be the average of the Closing Sale Prices
of Lexington Common Shares on the 10 consecutive Trading Days up to but
excluding the Effective Date.
The Share
Prices set forth in the first row of the table (i.e., the column headers) shall
be adjusted as of any date on which Conversion Rate of the Notes is
adjusted. The adjusted Share Prices shall equal the Share Prices
applicable immediately prior to such adjustment multiplied by a fraction, the
numerator of which is the Conversion Rate immediately prior to the adjustment
giving rise to the Share Price adjustment and the denominator of which is the
Conversion Rate as so adjusted. In addition, the number of Additional
Shares shall be subject to adjustment in the same manner as the Conversion Rate
in accordance with the provisions of Section 2.14 hereof.
The
following table sets forth the Share Price and number of Additional Shares to be
received per $1,000 principal amount of Notes:
-17-
|
Share
Price
|
||||||||||||||||||||||||||||||||||||||||||||||||||||
|
Effective Date
|
$ | 6.03 | $ | 6.50 | $ | 7.00 | $ | 7.50 | $ | 8.00 | $ | 10.00 | $ | 12.50 | $ | 15.00 | $ | 17.50 | $ | 20.00 | $ | 25.00 | $ | 30.00 | $ | 40.00 | ||||||||||||||||||||||||||
|
January
20, 2010
|
24.6991 | 20.1474 | 16.2437 | 13.2898 | 11.0286 | 5.9437 | 3.4070 | 2.2910 | 1.7195 | 1.3451 | 0.8791 | 0.5962 | 0.2795 | |||||||||||||||||||||||||||||||||||||||
|
January
15, 2011
|
24.6991 | 19.6445 | 15.9922 | 12.9199 | 10.7901 | 5.6155 | 3.0362 | 1.9682 | 1.4522 | 1.1251 | 0.7268 | 0.4880 | 0.2219 | |||||||||||||||||||||||||||||||||||||||
|
January
15, 2012
|
24.6991 | 19.3406 | 15.8316 | 12.6831 | 10.6646 | 5.1545 | 2.5869 | 1.6055 | 1.1637 | 0.8956 | 0.5713 | 0.3788 | 0.1656 | |||||||||||||||||||||||||||||||||||||||
|
January
15, 2013
|
24.6991 | 19.3999 | 15.4202 | 12.2948 | 10.3682 | 4.5325 | 2.0433 | 1.2017 | 0.8466 | 0.6404 | 0.3965 | 0.2529 | 0.0969 | |||||||||||||||||||||||||||||||||||||||
|
January
15, 2014
|
24.6991 | 19.0586 | 14.6032 | 12.1585 | 9.9862 | 3.6753 | 1.4281 | 0.7986 | 0.5513 | 0.4126 | 0.2488 | 0.1519 | 0.0483 | |||||||||||||||||||||||||||||||||||||||
|
January
15, 2015
|
24.6991 | 18.7885 | 14.1682 | 11.7223 | 8.4294 | 2.4124 | 0.7319 | 0.3911 | 0.2648 | 0.1923 | 0.1037 | 0.0522 | 0.0057 | |||||||||||||||||||||||||||||||||||||||
|
January
15, 2016
|
24.6991 | 17.9351 | 12.7690 | 8.1824 | 5.1496 | 0.7999 | 0.1855 | 0.1062 | 0.0698 | 0.0452 | 0.0154 | 0.0023 | 0.0000 | |||||||||||||||||||||||||||||||||||||||
|
January
15, 2017
|
24.6991 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | |||||||||||||||||||||||||||||||||||||||
The
actual Share Prices and Effective Dates may not be set forth in the table, in
which case:
(a) if
the Share Price is between two Share Price amounts in the table or the Effective
Date is between two dates in the table, the Additional Shares shall be
determined by straight-line interpolation between the number of Additional
Shares set forth for the higher and lower Share Price amounts and the two dates,
as applicable, based on a 365-day year;
(b) if
the Share Price is in excess of $40.00 per Lexington Common Share (subject to
adjustment as specified in the second preceding paragraph), no Additional Shares
shall be issued upon a conversion of Notes;
(c) if
the Share Price is less than $6.03 per Lexington Common Share (subject to
adjustment as specified in the second preceding paragraph), no Additional Shares
shall be issued upon a conversion of Notes.
Notwithstanding
the foregoing, in no event shall the Conversion Rate (including any Additional
Shares) issuable upon a conversion of Notes exceed 165.8374 shares per $1,000
principal amount of Notes, subject to adjustment in the same manner as the
Conversion Rate pursuant to Section 2.14 hereof. All calculations
under this Section 2.10 shall be the responsibility of the Issuer.
Section
2.11. Conversion
Rights.
Subject
to the restrictions on ownership of Lexington Common Shares as set forth in
Section 2.15 hereof and to the conditions set forth herein, Holders may
surrender their Notes for conversion into cash, Lexington Common Shares or a
combination of cash and Lexington Common Shares, at the Issuer’s option, at the
applicable Conversion Rate prior to the close of business on the second Business
Day immediately preceding the Stated Maturity of the Notes either (x) at any
time on or after January 15, 2029 or (y) under any of the other circumstances
set forth in this Section 2.11.
-18-
(a) Conversion Upon Satisfaction of
Market Price Condition. A Holder may surrender any of its
Notes for conversion during any calendar quarter beginning after March 31, 2010
(and only during such calendar quarter) if, and only if, the Closing Sale Price
of Lexington Common Shares for at least 20 Trading Days (whether or not
consecutive) in the period of 30 consecutive Trading Days ending on the last
Trading Day of the preceding calendar quarter as determined by the Issuer is
more than 130% of the Conversion Price per Lexington Common Share in effect on
the applicable Trading Day. The Board of Trustees of the Issuer shall
make appropriate adjustments, in its good faith determination, to account for
any adjustment to the Conversion Rate that becomes effective, or any event
requiring an adjustment to the Conversion Rate where the ex-dividend date of the
event occurs, during that 30 consecutive Trading-Day period.
(b) Conversion Upon Satisfaction of
Trading Price Condition. A Holder may surrender any of its
Notes for conversion during the five consecutive Trading-Day period following
any five consecutive Trading Days in which the Trading Price per $1,000
principal amount of Notes (as determined following a reasonable request by a
Holder of the Notes) was less than 98% of the product of the Closing Sale Price
of Lexington Common Shares multiplied by the applicable Conversion
Rate.
The
Trustee shall have no obligation to determine the Trading Price of the Notes
unless the Issuer shall have requested such determination, and the Issuer shall
have no obligation to make such request unless a Holder provides the Issuer with
reasonable written evidence that the Trading Price per $1,000 principal amount
of the Notes would be less than 98% of the product of the Closing Sale Price of
Lexington Common Shares and the Conversion Rate, whereupon the Issuer shall
instruct the Trustee in writing to determine the Trading Price of the Notes
beginning on the next Trading Day and on each successive Trading Day until the
Trading Price is greater than or equal to 98% of the product of the Closing Sale
Price of Lexington Common Shares and the Conversion Rate.
(c) Conversion Upon Notice of
Redemption. A Holder may surrender for conversion any of the
Notes called for redemption at any time prior to the close of business on the
second Business Day prior to the Redemption Date, even if the Notes are not
otherwise convertible at such time. The right to convert Notes called
for redemption pursuant to this clause (c) shall expire after the close of
business on the second Business Day prior to the Redemption Date unless the
Issuer defaults in making the payment due upon redemption.
(d) Conversion Upon Specified
Transactions. If the Issuer elects to:
(i) distribute
to all holders of Lexington Common Shares rights entitling them to purchase, for
a period expiring within 45 days, Lexington Common Shares at less than the
Closing Sale Price of Lexington Common Shares on the Trading Day immediately
preceding the declaration date of the distribution; or
-19-
(ii) distribute
to all holders of Lexington Common Shares assets, debt securities or rights to
purchase securities of the Issuer or the Operating Partnerships, which
distribution has a per share value exceeding 15% of the Closing Sale Price of
Lexington Common Shares on the Trading Day immediately preceding the declaration
date of such distribution,
the
Issuer shall notify the Holders of the Notes in writing at least 25 Business
Days prior to the ex-dividend date for such distribution. Following
the giving of such notice, Holders may surrender their Notes for conversion at
any time until the earlier of the close of business on the Business Day prior to
the ex-dividend date or an announcement that such distribution shall not take
place; provided,
however, that a Holder may not exercise this right to convert if the
Holder may participate, on an as-converted basis, in the distribution without a
conversion of Notes. The ex-dividend date is the first date upon
which a sale of the Lexington Common Shares does not automatically transfer the
right to receive the relevant distribution from the seller of Lexington Common
Shares to its buyer.
In
addition, if the Issuer is party to a consolidation, merger, binding share
exchange or a sale, lease or other transfer of all or substantially all of the
consolidated assets of the Issuer pursuant to which all of the outstanding
Lexington Common Shares would be exchanged for cash, securities or other
property that is not otherwise a Change of Control, a Holder may surrender Notes
for conversion at any time from and including the date that is 25 Business Days
prior to the anticipated effective time of the transaction up to and including
five Business Days after the actual date of such transaction. The
Issuer shall notify Holders as promptly as practicable following the date the
Issuer publicly announces such transaction (but in no event less than 25
Business Days prior to the anticipated effective time of such
transaction).
If a
Change of Control occurs as a result of a transaction described in clauses (1)
or (2) of the definition of “Change of Control”, a Holder shall have the right
to convert its Notes at any time from and including the Effective Date of such
transaction up to and including the 30th Business Day following the Effective
Date of the transaction, provided that, if a Holder has already delivered an
Optional Repurchase Notice or a Change of Control Purchase Notice with respect
to a Note, such Holder may not surrender such Note for conversion until it has
withdrawn such notice in accordance with the applicable provisions of Section
2.08 or 2.09 hereof, as the case may be. The Issuer shall notify
Holders as promptly as practicable following the date that the Issuer publicly
announces such Change of Control (but in no event later than five Business Days
prior to the Effective Date of such Change of Control).
If the
Issuer is a party to a consolidation, merger, binding share exchange or a sale,
lease or other transfer of all or substantially all of the consolidated assets
of the Issuer pursuant to which all of the Lexington Common Shares are exchanged
for cash, securities or other property, then from and after the effective time
of the transaction, any conversion of Notes, including the Daily Conversion
Value and any shares deliverable in connection with such conversion, shall be
based on the kind and amount of cash, securities or other property (the
“Applicable Consideration”) that the Holder would have received if such Holder
had converted its Notes for Lexington Common Shares immediately prior to the
effective time of the transaction. For purposes of the foregoing,
where a consolidation, merger, binding share exchange or a sale, lease or other
transfer of all or substantially all of the consolidated assets of the Issuer
involves a transaction that causes Lexington Common Shares to be converted into
the right to receive more than a single type of consideration based upon any
form of shareholder election, the Applicable Consideration shall be deemed to be
the weighted average of the types and amounts of consideration received by the
holders of Lexington Common Shares that affirmatively make such an
election. At the time of any transaction described in this paragraph,
the Issuer or the successor or purchasing Person, as the case may be, shall
execute with the Trustee a supplemental indenture (which shall comply with the
Trust Indenture Act as in force at the date of execution of such supplemental
indenture) providing that each Note shall be convertible into the Applicable
Consideration. Such supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided in this Sixth Supplemental Indenture.
-20-
The
Issuer shall cause notice of the execution of such supplemental indenture to be
mailed to each Holder of Notes, at its address appearing on the Security
Register, within 20 days after execution thereof. Failure to deliver
such notice shall not affect the legality or validity of such supplemental
indenture.
The above
provisions shall similarly apply to successive reclassifications, changes,
consolidations, mergers, binding share exchanges, combinations, sales and
transfers.
If a
Change of Control occurs prior to January 15, 2017 as a result of a transaction
described in clauses (1) or (2) of the definition thereof, the Issuer shall
adjust the Conversion Rate for Notes tendered for conversion in connection with
such a Change of Control transaction, as described in Section 2.10
hereof.
(e) Conversion Upon Delisting of
Lexington Common Shares. A Holder of Notes may surrender any
of its Notes for conversion at any time beginning on the first Business Day
after the Lexington Common Shares have ceased to be listed on a U.S. national or
regional securities exchange for a 30 consecutive Trading Day
period. The Issuer shall promptly notify the Trustee in writing upon
the delisting of the Lexington Common Shares.
(f) Partial Conversion and Withdrawal of
Purchase Notices. A Holder may convert fewer than all of its
Notes so long as the Notes converted are an integral multiple of $1,000
principal amount and the remaining principal amount of Notes is in an authorized
denomination. If a Holder has delivered an Optional Repurchase Notice
or a Change of Control Purchase Notice with respect to a Note, such Holder may
not surrender such Note for conversion until it has withdrawn such notice in
accordance with the applicable provisions of Section 2.08 or 2.09 hereof, as the
case may be.
Section
2.12. Conversion
Settlement. (a) Upon a conversion of Notes, the Issuer shall
deliver to each converting holder, in respect of each $1,000 principal amount of
Notes tendered for conversion, at the Issuer’s election, in full satisfaction of
the Issuer’s Conversion Obligation, (1) Lexington Common Shares, together with
cash in lieu of fractional shares, if any (a “Physical Settlement”), (2) a cash
payment without delivery of any Lexington Common Shares (a “Cash Settlement”) or
(3) a combination of cash and Lexington Common Shares, together with cash in
lieu of fractional shares, if any (a “Combination Settlement”), in each case, as
set forth below (the amounts so deliverable upon conversion of the Notes, the
“Conversion Obligation”):
-21-
For
conversions of Notes (other than conversions following a notice of
redemption):
(i) that
occur prior to the date that is 15 Business days prior to the Stated Maturity,
by the close of business on the Business Day following the Conversion Date, the
Issuer shall notify converting Holders of the relevant Settlement Method and, if
the Issuer elects a Combination Settlement, the dollar amount of the Conversion
Obligation (the “Specified Dollar Amount”) that will be settled in
cash;
(ii) that
occur on or after the date that is 15 Business Days prior to the Stated
Maturity, the Issuer shall notify all Holders of the relevant Settlement Method
and, if applicable, the related Specified Dollar Amount, by notice on or prior
to the date that is 15 Business Days prior to the Stated Maturity (which shall
apply to all conversions on or following the date that is 15 Business Days prior
to the Stated Maturity).
For
conversions of Notes that occur following delivery by the Issuer of a notice of
redemption, as described in Section 2.11(c) hereof, the Issuer will notify
converting Holders of the relevant Settlement Method and, if the Issuer elects
Combination Settlement, the related Specified Dollar Amount.
If the
Issuer does not specify a Settlement Method as set forth above, then Combination
Settlement shall apply, and the related Specified Dollar Amount used in the
settlement calculation set forth in paragraph (d) below will be
$1,000. Any such notice of a Settlement Method may not be
revoked.
If the
Issuer has elected a Physical Settlement with respect to any Notes tendered for
conversion, the Issuer shall deliver, for each $1,000 principal amount of Notes,
a number of Lexington Common Shares equal to the Conversion Rate, together with
cash in lieu of fractional shares, on the third Business Day following the
Conversion Date.
If the
Issuer has elected a Cash Settlement with respect to any Notes tendered for
conversion, the Issuer shall deliver, for each $1,000 principal amount of Notes,
a cash payment equal to the sum of the Daily Conversion Values for each Trading
Day during the relevant Applicable Conversion Period. The Issuer
shall make such payment on the third Business Day following the last day of the
Applicable Conversion Period.
If the
Issuer has elected or is deemed to have elected a Combination Settlement with
respect to any Notes tendered for conversion, the Issuer shall deliver, for each
$1,000 principal amount of Notes, the sum of the Daily Settlement Amounts for
each Trading Day during the relevant Applicable Conversion Period.
The
“Daily Settlement Amount” for each Trading Day during the Applicable Conversion
Period shall consist of:
-22-
(i) cash
in an amount equal to the lesser of (x) 1/10 of the Specified Dollar Amount
specified by the Issuer in the notice regarding the chosen Settlement Method
(the “Daily Specified Dollar Amount”) and (y) the Daily Conversion Value on such
Trading Day; and
(ii) if
the Daily Conversion Value on such Trading Day exceeds the Daily Specified
Dollar Amount, a number of Lexington Common Shares (together with cash in lieu
of any fractional shares) equal to (x) the difference between such Daily
Conversion Value and the Daily Specified Dollar Amount, divided by (x) the Daily
VWAP on such Trading Day.
The
Issuer shall deliver such cash and Lexington Common Shares on the third Business
Day following the last day of the Applicable Conversion Period; provided,
however, that the Issuer will deliver the cash and Lexington Common Shares
related to a conversion following a notice of redemption, as described in
Section 2.11(c) hereof, during the 10-day period following the Redemption
Date.
(b) Upon
conversion of any Notes, Holders shall not receive any separate cash payment for
accrued and unpaid interest, except to the extent specified
below. The Issuer’s delivery to the Holder of Lexington Common
Shares, cash or a combination of cash and Lexington Common Shares, as
applicable, together with any cash payment for any fractional shares, into which
a Note is convertible shall be deemed to satisfy in full the Issuer’s obligation
to pay (i) the principal amount of the Notes so converted and (ii) accrued and
unpaid interest to, but not including, the Conversion Date. As a
result, accrued and unpaid interest to, but not including, the Conversion Date
shall be deemed to be paid in full rather than cancelled, extinguished or
forfeited. Notes surrendered for conversion during the period from
the close of business on any Record Date to the open of business on the
immediately following interest payment date must be accompanied by funds equal
to the amount of interest payable on the Notes so converted; provided that no such payment
need be made (i) for conversions following the Record Date immediately preceding
the Stated Maturity or (ii) to the extent of any overdue interest, if any
overdue interest exists at the time of conversion with respect to such
Note.
(c) The
Issuer shall not issue fractional shares upon conversion of Notes. If
multiple Notes shall be surrendered for conversion at one time by the same
Holder, the number of full Lexington Common Shares which shall be issuable upon
conversion shall be computed on the basis of the aggregate principal amount of
the Notes (or specified portions thereof to the extent permitted hereby) so
surrendered. If any fractional share would be issuable upon the
conversion of any Notes, the Issuer shall make payment therefor in cash in lieu
of fractional shares based on:
(i) if
Physical Settlement applies, on the last reported sale price of Lexington Common
Shares on the relevant Conversion Date; and
(ii) if
Combination Settlement applies, the Daily VWAP of Lexington Common Shares on the
final Trading Day of the Applicable Conversion Period.
-23-
(d) Solely
for purposes of determining the payments and deliveries due upon conversion
under this Section 2.12 and for purposes of the definitions of “Applicable
Exchange Period,” “Daily VWAP” and “Scheduled Trading Day,”
“Trading Day” means a day on
which (i) there is no Market Disruption Event and (ii) trading in
Lexington Common Shares generally occurs on the New York Stock Exchange or, if
Lexington Common Shares are not then listed on the New York Stock Exchange, on
the principal other United States national or regional securities exchange on
which Lexington Common Shares are then listed or, if Lexington Common Shares are
not then listed on a United States national or regional securities exchange, on
the principal other market on which Lexington Common Shares are then traded. If
Lexington Common Shares (or other security for which a Daily VWAP must be
determined) are not so listed or traded, “Trading Day” means a Business
Day.
Section
2.13. Conversion
Procedures. To convert Notes,
a Holder must satisfy the requirements set forth in this Section
2.13.
To
convert the Notes, a Holder must (a) (i) complete and manually sign the
irrevocable conversion notice on the reverse of the Note (or complete and
manually sign a facsimile of such notice) and deliver such notice to the
Conversion Agent at the office maintained by the Conversion Agent for such
purpose, (ii) surrender the Notes to the Conversion Agent and (iii) furnish
appropriate endorsements and transfer documents if required by the Conversion
Agent, the Issuer or the Trustee, with respect to Notes which are in
certificated form, or, (b) if the Notes are in book-entry form, comply with the
appropriate procedures of the Depositary and, in the case of certificated Notes
and Notes in book-entry form, pay any transfer or similar tax, if
required. The date on which the Holder satisfies all such
requirements shall be deemed to be the date on which the applicable Notes shall
have been tendered for conversion.
Notes in
respect of which a Holder has delivered an Optional Repurchase Notice or Change
of Control Purchase Notice may be converted only if such notice is withdrawn in
accordance with the terms of Section 2.08 or Section 2.09, as the case may
be.
In case
any Note shall be surrendered for partial conversion, the Issuer shall execute
and the Trustee shall authenticate and deliver to, or upon the written order of,
the Holder of the Note so surrendered, without charge to such holder, a new Note
or Notes in authorized denominations in an aggregate principal amount equal to
the portion of the surrendered Notes not surrendered for
conversion. A Holder may convert fewer than all of such Holder’s
Notes so long as the Notes converted are an integral multiple of $1,000
principal amount and the remaining principal amount of the Notes is in an
authorized denomination.
Upon
surrender of a Note for conversion by a Holder, such Holder shall deliver to the
Issuer cash equal to the amount that the Issuer is required to deduct and
withhold under applicable law in connection with the conversion; provided, however, if the
Holder does not deliver such cash, the Issuer may deduct and withhold from the
amount of consideration otherwise deliverable to such Holder the amount required
to be deducted and withheld under applicable law.
-24-
Upon
conversion of a Note, a Holder shall not receive any cash payment representing
accrued and unpaid interest on such Note (unless such conversion occurs after a
Regular Record Date and on or prior to the Interest Payment Date to which it
relates). Instead, upon a conversion of Notes, the Issuer shall
deliver to tendering Holders only the consideration specified in Section
2.12. Delivery of Lexington Common Shares and/or cash upon a
conversion of Notes shall be deemed to satisfy the Issuer’s obligation to pay
the principal amount of the Notes and any accrued and unpaid interest, except as
otherwise provided herein. Accordingly, upon a conversion of Notes,
except as otherwise provided herein, any accrued and unpaid interest shall be
deemed paid in full rather than cancelled, extinguished or
forfeited. In no event shall the Conversion Rate be adjusted to
account for accrued and unpaid interest on the Notes.
Holders
of Notes at the close of business on a Regular Record Date for an interest
payment shall receive payment of interest payable on the corresponding Interest
Payment Date notwithstanding the conversion of such Notes at any time after the
close of business on the applicable Regular Record Date. Notes
tendered for conversion by a Holder after the close of business on any Regular
Record Date for an interest payment and on or prior to the corresponding
Interest Payment Date must be accompanied by payment of an amount equal to the
interest that such Holder is to receive on such Notes on such Interest Payment
Date; provided,
however, that no such payment shall be required to be made (1) if such
Notes have been called for redemption on a Redemption Date that is after such
Regular Record Date and on or prior to the second Business Day following such
Interest Payment Date or (2) with respect to overdue interest (including
Additional Interest), if any overdue interest exists at the time of conversion
with respect to such Notes.
Upon
conversion of a Note, the Issuer, if it elects Physical Settlement or
Combination Settlement, shall pay any documentary, stamp or similar issue or
transfer tax due on the issue of Lexington Common Shares upon the conversion, if
any, unless the tax is due because the Holder requests the shares to be issued
or delivered to a person other than the Holder, in which case the Holder must
pay the tax due prior to the delivery of such shares. Certificates
representing or evidencing Lexington Common Shares shall not be issued or
delivered unless all taxes and duties, if any, payable by the Holder have been
paid.
A Holder
of Notes, as such, shall not be entitled to any rights of a holder of Lexington
Common Shares. Such Holder shall only acquire such rights upon the
delivery by the Issuer, at its option, of Lexington Common Shares in accordance
with the provisions of Section 2.12 in connection with the conversion by a
Holder of Notes.
The
Issuer shall, prior to issuance of any Notes hereunder, and from time to time as
may be necessary, reserve out of its authorized but unissued Lexington Common
Shares a sufficient number of Lexington Common Shares to permit the conversion
of the Notes at the applicable Conversion Rate, assuming an election by the
Issuer of Physical Settlement. Any Lexington Common Shares delivered
upon a conversion of Notes shall be newly issued shares or treasury shares,
shall be duly and validly issued and fully paid and nonassessable and shall be
free from preemptive rights and free of any lien or adverse claim.
-25-
The
Issuer shall endeavor promptly to comply with all federal and state securities
laws regulating the issuance and delivery of Lexington Common Shares, if any,
upon a conversion of Notes and, prior to delivering any Lexington Common Shares
upon a conversion of the Notes, shall cause to have listed or quoted all such
Lexington Common Shares on each U.S. national securities exchange or
over-the-counter or other domestic market on which the Lexington Common Shares
are then listed or quoted.
Except as
set forth herein, no other payment or adjustment for interest shall be made upon
conversion of Notes.
Section
2.14. Conversion Rate
Adjustments. The Conversion
Rate shall be adjusted from time to time as follows:
(a) If
the Issuer issues Lexington Common Shares as a dividend or distribution on
Lexington Common Shares to all holders of Lexington Common Shares, or if the
Issuer effects a share split or share combination, the Conversion Rate shall be
adjusted based on the following formula:
|
|
CR1
=
|
CR0 x
(OS1/OS0)
|
where
|
|
CR0
=
|
the
Conversion Rate in effect immediately prior to the adjustment relating to
such event
|
|
|
CR1
=
|
the
new Conversion Rate in effect taking such event into
account
|
|
|
OS0
=
|
the
number of Lexington Common Shares outstanding immediately prior to such
event
|
|
|
OS1
=
|
the
number of Lexington Common Shares outstanding immediately after such
event.
|
Any
adjustment made pursuant to this paragraph (a) shall become effective on the
date that is immediately after (x) the date fixed for the determination of
shareholders entitled to receive such dividend or other distribution or (y) the
date on which such split or combination becomes effective, as
applicable. If any dividend or distribution described in this
paragraph (a) is declared but not so paid or made, the new Conversion Rate shall
be readjusted to the Conversion Rate that would then be in effect if such
dividend or distribution had not been declared.
(b) If
the Issuer issues to all holders of Lexington Common Shares any rights,
warrants, options or other securities entitling them for a period of not more
than 45 days after the date of issuance thereof to subscribe for or purchase
Lexington Common Shares, or issues to all holders of Lexington Common Shares
securities convertible into Lexington Common Shares for a period of not more
than 45 days after the date of issuance thereof, in either case at an exercise
price per Lexington Common Share or a conversion price per Lexington Common
Share less than the Closing Sale Price of Lexington Common Shares on the
Business Day immediately preceding the time of announcement of such issuance,
the Conversion Rate shall be adjusted based on the following
formula:
-26-
|
|
CR1
=
|
CR0 x
((OS0+X)/(OS0+Y))
|
where
|
|
CR0=
|
the
Conversion Rate in effect immediately prior to the adjustment relating to
such event
|
|
|
CR1
=
|
the
new Conversion Rate taking such event into
account
|
|
|
OS0
=
|
the
number of Lexington Common Shares outstanding immediately prior to such
event
|
|
|
X
=
|
the
total number of Lexington Common Shares issuable pursuant to such rights,
warrants, options, other securities or convertible
securities
|
|
|
Y
=
|
the
number of Lexington Common Shares equal to the quotient of (A) the
aggregate price payable to exercise such rights, warrants, options, other
securities or convertible securities and (B) the average of the Closing
Sale Prices of Lexington Common Shares for the 10 consecutive Trading Days
prior to the Business Day immediately preceding the date of announcement
for the issuance of such rights, warrants, options, other securities or
convertible securities.
|
If the
application of the foregoing formula would result in a decrease in the
Conversion Rate, no adjustment to the Conversion Rate shall be
made.
For
purposes of this paragraph (b), in determining whether any rights, warrants,
options, other securities or convertible securities entitle the holders to
subscribe for or purchase, or exercise a conversion right for, Lexington Common
Shares at less than the applicable Closing Sale Price of Lexington Common
Shares, and in determining the aggregate exercise or conversion price payable
for such Lexington Common Shares, there shall be taken into account any
consideration received by the Issuer for such rights, warrants, options, other
securities or convertible securities and any amount payable on exercise or
conversion thereof, with the value of such consideration, if other than cash, to
be determined by the Board of Trustees of the Issuer. If any right,
warrant, option, other security or convertible security described in this
paragraph (b) is not exercised or converted prior to the expiration of the
exercisability or convertibility thereof, the new Conversion Rate shall be
readjusted to the Conversion Rate that would then be in effect if such right,
warrant, option, other security or convertible security had not been so
issued.
(c) If
the Issuer distributes shares of its capital stock, evidences of indebtedness or
other assets or property to all holders of Lexington Common Shares,
excluding:
(i) dividends,
distributions, rights, warrants, options, other securities or convertible
securities referred to in paragraph (a) or (b) above,
-27-
(ii) dividends
or distributions paid exclusively in cash, and
(iii) Spin-Offs
described below in this paragraph (c),
then the
Conversion Rate shall be adjusted based on the following formula:
|
|
CR1
=
|
CR0 x
(SP0/(SP0-FMV))
|
where
|
|
CR0
=
|
the
Conversion Rate in effect immediately prior to the adjustment relating to
such event
|
|
|
CR1
=
|
the
new Conversion Rate taking such event into
account
|
|
|
SP0
=
|
the
average of the Closing Sale Prices of Lexington Common Shares for the 10
consecutive Trading Days prior to the Business Day immediately preceding
the earlier of the record date or the ex-dividend date for such
distribution
|
|
|
FMV
=
|
the
fair market value (as determined in good faith by the Board of Trustees of
the Issuer) of the shares of capital stock, evidences of indebtedness,
assets or property distributed with respect to each outstanding Lexington
Common Share on the earlier of the record date or the ex-dividend date for
such distribution.
|
An
adjustment to the Conversion Rate made pursuant to the immediately preceding
paragraph shall be made successively whenever any such distribution is made and
shall become effective on the day immediately after the date fixed for the
determination of holders of Lexington Common Shares entitled to receive such
distribution.
If the
Issuer distributes to all holders of Lexington Common Shares, capital stock of
any class or series, or similar equity interest, of or relating to a subsidiary
or other business unit of the Issuer (a “Spin-Off”), the Conversion Rate shall
be adjusted based on the following formula:
|
|
CR1
=
|
CR0 x
((FMV0+MP0)/MP0)
|
where
|
|
CR0
=
|
the
Conversion Rate in effect immediately prior to the adjustment relating to
such event
|
|
|
CR1
=
|
the
new Conversion Rate taking such event into
account
|
|
|
FMV0
=
|
the
value, based on the average of the Closing Sale Prices of the capital
stock or similar equity interest distributed to holders of Lexington
Common Shares over the first 10 consecutive Trading Days after the
effective date of the Spin-Off applicable to one Lexington Common
Share
|
-28-
|
|
MP0
=
|
the
average of the Closing Sale Prices of Lexington Common Shares over the
first 10 consecutive Trading Days after the effective date of the
Spin-Off.
|
An
adjustment to the Conversion Rate made pursuant to the immediately preceding
paragraph shall occur on the 10th Trading Day after the effective date of the
Spin-Off.
If any
such dividend or distribution described in this paragraph (c) is declared but
not paid or made, the new Conversion Rate shall be readjusted to be the
Conversion Rate that would then be in effect if such dividend or distribution
had not been declared.
(d) If
the Issuer makes any cash dividend or distribution during any of its quarterly
fiscal periods (without regard to when paid) to all holders of Lexington Common
Shares in an aggregate amount that, together with other cash dividends or
distributions made in respect of that quarterly fiscal period, exceeds the
product of $0.10 (the “Reference Dividend”) multiplied by the number of
Lexington Common Shares outstanding on the record date for such distribution,
the Conversion Rate shall be adjusted based on the following
formula:
|
|
CR1
=
|
CR0 x
((SP0-RD)/(SP0-C))
|
where
|
|
CR0
=
|
the
Conversion Rate in effect immediately prior to the adjustment relating to
such event
|
|
|
CR1
=
|
the
new Conversion Rate taking such event into
account
|
|
|
SP0
=
|
the
average of the Closing Sale Prices of Lexington Common Shares for the 10
consecutive Trading Days prior to the business day immediately preceding
the earlier of the record date or the day prior to the ex-dividend date
for such distribution
|
|
|
RD
=
|
the
Reference Dividend
|
|
|
C
=
|
the
amount in cash per Lexington Common Share that the Issuer distributes to
holders of Lexington Common Shares in respect of such quarterly fiscal
period.
|
An
adjustment to the Conversion Rate made pursuant to this paragraph (d) shall
become effective on the date immediately after the date fixed for the
determination of holders of Lexington Common Shares entitled to receive such
dividend or distribution. If any dividend or distribution described
in this paragraph (d) is declared but not so paid or made, the new Conversion
Rate shall be readjusted to the Conversion Rate that would then be in effect if
such dividend or distribution had not been declared.
-29-
Notwithstanding
the foregoing, if an adjustment to the Conversion Rate is required to be made as
a result of a dividend or distribution that is not a quarterly dividend or
distribution either in whole or in part, the Reference Dividend shall be deemed
to be zero for purposes of determining the adjustment to the Conversion Rate as
a result of such dividend or distribution.
The
Reference Dividend shall be subject to adjustment in a manner that is inversely
proportional to adjustments to the Conversion Rate; provided that no adjustment
shall be made to the Reference Dividend for any adjustment made to the
Conversion Rate pursuant to this paragraph (d).
(e) If
the Issuer or any of its subsidiaries makes a payment in respect of a tender
offer or exchange offer for Lexington Common Shares to the extent that the cash
and value of any other consideration included in the payment per Lexington
Common Share exceeds the Closing Sale Price of a Lexington Common Share on the
Trading Day next succeeding the last date on which tenders or exchanges may be
made pursuant to such tender or exchange offer (the “Expiration Time”), the
Conversion Rate shall be adjusted based on the following formula:
|
|
CR1
=
|
CR0 x
((AC + (SP1 x
OS1))/(SP1 x
OS0))
|
where
|
|
CR0
=
|
the
Conversion Rate in effect immediately prior to the adjustment relating to
such event
|
|
|
CR1
=
|
the
new Conversion Rate taking such event into
account
|
|
|
AC
=
|
the
aggregate value of all cash and any other consideration (as determined in
good faith by the Board of Trustees of the Issuer) paid or payable for
Lexington Common Shares purchased in such tender or exchange
offer
|
|
|
OS0
=
|
the
number of Lexington Common Shares outstanding immediately prior to the
date such tender or exchange offer
expires
|
|
|
OS1
=
|
the
number of Lexington Common Shares outstanding immediately after such
tender or exchange offer expires (after giving effect to the purchase or
exchange of shares pursuant to such tender or exchange
offer)
|
|
|
SP1
=
|
the
average of the Closing Sale Prices of Lexington Common Shares for the 10
consecutive Trading Days commencing on the Trading Day next succeeding the
date such tender or exchange offer
expires.
|
-30-
If the
application of the foregoing formula would result in a decrease in the
Conversion Rate, no adjustment to the Conversion Rate shall be
made.
Any
adjustment to the Conversion Rate made pursuant to this paragraph (e) shall
become effective on the date immediately following the Expiration
Time. If the Issuer or one of its subsidiaries is obligated to
purchase Lexington Common Shares pursuant to any such tender or exchange offer
but is permanently prevented by applicable law from effecting any such purchase
or all such purchases are rescinded, the new Conversion Rate shall be readjusted
to be the Conversion Rate that would be in effect if such tender or exchange
offer had not been made.
(f) Notwithstanding
the foregoing, in the event of an adjustment to the Conversion Rate pursuant to
paragraph (d) or (e) above, in no event shall the Conversion Rate exceed ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Shares per $1,000 principal amount of Notes, subject to
adjustment pursuant to paragraphs (a), (b) and (c) above.
(g) If
the Issuer has in effect a rights plan while any Notes remain Outstanding,
Holders of Notes shall receive, upon a conversion of Notes in respect of which
the Issuer has elected to deliver Lexington Common Shares, in addition to such
Lexington Common Shares, rights under any shareholder rights agreement that the
Issuer may then have in effect unless, prior to conversion, the rights have
expired, terminated or been redeemed or unless the rights have separated from
the Lexington Common Shares. If the rights provided for in the rights
plan adopted by the Issuer have separated from the Lexington Common Shares in
accordance with the provisions of the applicable shareholder rights agreement so
that Holders of Notes would not be entitled to receive any rights in respect of
Lexington Common Shares into which Notes are convertible, the Conversion Rate
shall be adjusted at the time of separation as if the Issuer had distributed to
all holders of Lexington Common Shares capital stock, evidences of indebtedness
or other assets or property pursuant to paragraph (c) above, subject to
readjustment upon the subsequent expiration, termination or redemption of the
rights.
In
addition to the adjustments pursuant to paragraphs (a) through (g) above, the
Issuer may increase the Conversion Rate in order to avoid or diminish any income
tax to holders of Lexington Common Shares resulting from any dividend or
distribution of capital stock (or rights to acquire Lexington Common Shares) or
from any event treated as such for income tax purposes. The Issuer
may also, from time to time, to the extent permitted by applicable law, increase
the Conversion Rate by any amount for any period if the Issuer has determined
that such increase would be in the best interests of the Issuer. If
the Issuer makes such determination, it shall be conclusive and Issuer shall
mail to Holders of the Notes a notice of the increased Conversion Rate and the
period during which it shall be in effect at least fifteen (15) days prior to
the date the increased Conversion Rate takes effect in accordance with
applicable law.
If, in
connection with any adjustment to the Conversion Rate as set forth in this
Section 2.14, a Holder shall be deemed for U.S. federal tax purposes to have
received a distribution or other income from the Issuer, the Issuer may set off
any withholding tax it or the Issuer reasonably believes it is required to
collect with respect to any such deemed distribution or payment against cash
payments of interest in accordance with the provisions of Section 2.05 hereof or
from cash and Lexington Common Shares, if any, otherwise deliverable to a Holder
upon a conversion of Notes in accordance with the provisions of Section 2.12
hereof or a redemption or repurchase of a Note in accordance with the provisions
of Section 2.07, 2.08 or 2.09 hereof.
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The
Issuer shall not make any adjustment to the Conversion Rate if Holders of the
Notes are permitted to participate, on an as-converted basis, in the
transactions described above without converting their Notes.
Notwithstanding
anything to the contrary contained herein, in addition to the other events set
forth herein on account of which no adjustment to the Conversion Rate shall be
made, the applicable Conversion Rate shall not be adjusted for:
(i) the
issuance of any Lexington Common Shares pursuant to any public or private
follow-on offering of such shares;
(ii) the
issuance of any Lexington Common Shares pursuant to any present or future plan
providing for the reinvestment of dividends or interest payable on securities of
the Issuer and the investment of additional optional amounts in Lexington Common
Shares under any plan;
(iii) the
issuance of any Lexington Common Shares or options or rights to purchase those
shares pursuant to any present or future employee, trustee or consultant benefit
plan, employee agreement or arrangement or program of the Issuer;
(iv) the
issuance of any Lexington Common Shares pursuant to any option, warrant, right,
or exercisable, exchangeable or convertible security outstanding as of the date
the Notes were first issued;
(v) a
change in the par value of Lexington Common Shares;
(vi) accumulated
and unpaid dividends or distributions;
(vii) as
a result of a tender offer solely to holders of less than ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Shares; and
(viii) the
issuance of limited partnership units by the Operating Partnerships for cash or
property and the issuance of Lexington Common Shares for cash or property or the
payment of cash upon redemption thereof; provided that the acquisition
of property upon issuance of the limited partnership units will not result in
any anti-dilution adjustments pursuant to this Section 2.14.
No
adjustment in the Conversion Rate shall be required unless the adjustment would
require an increase or decrease of at least 1% of the Conversion
Price. If the adjustment is not made because the adjustment does not
change the Conversion Price by at least 1%, then the adjustment that is not made
shall be carried forward and taken into account in any future
adjustment. All required calculations shall be made to the nearest
cent or 1/1000th of a share, as the case may be. Notwithstanding the
foregoing, if the Notes are called for redemption, all adjustments not
previously made shall be made on the 10th
Business Day preceding the applicable Redemption Date.
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Whenever
the Conversion Rate is adjusted as herein provided, the Issuer shall as promptly
as reasonably practicable file with the Trustee and any Conversion Agent other
than the Trustee an Officers’ Certificate setting forth the Conversion Rate
after such adjustment and setting forth a brief statement of the facts requiring
such adjustment. Promptly after delivery of such certificate, the
Issuer shall prepare a notice of such adjustment of the Conversion Rate setting
forth the adjusted Conversion Rate and the date on which each adjustment becomes
effective and shall mail such notice of such adjustment of the Conversion Rate
to the Holders of the Notes upon request within 20 Business Days of the
Effective Date of such adjustment. Failure to deliver such notice
shall not affect the legality or validity of any such adjustment.
For
purposes of this Section 2.14, the number of Lexington Common Shares at any time
outstanding shall not include shares held in the treasury of the Issuer but
shall include shares issuable in respect of scrip certificates issued in lieu of
fractions of Lexington Common Shares.
Notwithstanding
anything in this Section 2.14 to the contrary, in no event shall the Conversion
Rate be adjusted so that the Conversion Price would be less than
$0.01.
Section
2.15. Ownership Limit;
Withholding. Notwithstanding any other provision of the Notes
or the instructions contained herein, no Person may own, or be deemed to own by
virtue of the attribution rules of the Code, more than 9.8% in value of
Lexington Common Shares or the issued and outstanding shares of any of the
Issuer’s other classes or series of shares of beneficial interest. In
case of requests for waivers or modifications of such limit by Persons that are
not individuals or treated as individuals under the Code, the Board of Trustees
of the Issuer is required to waive or modify such limit if, among other things,
evidence satisfactory to it is presented that such ownership would not
jeopardize the Issuer’s status as a real estate investment trust for U.S.
federal income tax purposes. Notwithstanding any other provision of the Notes or
the instructions contained herein, no Holder of Notes shall be entitled to
convert such Notes for Lexington Common Shares to the extent that receipt of
such shares would cause such Holder (together with such Holder’s affiliates) to
exceed the ownership limit contained in the Declaration of Trust of the Issuer
as in effect from time to time.
At the
Maturity of the principal of the Notes, whether at Stated Maturity or upon
earlier redemption or repurchase of Notes or otherwise, and as otherwise
required by law, the Issuer may deduct and withhold from the amount of
consideration otherwise deliverable to such Holder the amount required to be
deducted and withheld under applicable law.
Section
2.16. Merger, Consolidation or
Sale. Solely for purposes of the Notes, Section 801 and
Section 803 of the Indenture are hereby modified and amended to include, in
addition to clauses (1), (2) and (3), the following additional
clause:
“(4) if
as a result of such transaction the Notes become convertible into common stock
or other securities issued by a third party, such third party shall assume or
fully and unconditionally guarantee all obligations under the Notes and the
Indenture.”
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Section
2.17. Satisfaction and
Discharge. The provisions of Sections 401, 402, 403 and 404 of
the Original Indenture shall not be applicable to the Notes. This Indenture shall be
discharged and shall cease to be of further effect as to all Notes when either
(i) all Notes theretofore authenticated and delivered (except lost, stolen or
destroyed Notes which have been replaced or paid as provided in Section 306 of
the Original Indenture) have been delivered to the Trustee for the Notes for
cancellation or (ii) (A) all Notes have not theretofore been delivered to the
Trustee for cancellation, after the Notes have become due and payable, whether
on the date of the Stated Maturity of the principal amount of the Notes, any
Redemption Date, Optional Repurchase Date or Change of Control Repurchase Date
or upon conversion or otherwise, cash or Lexington Common Shares in accordance
with the terms hereof and the Issuer has irrevocably deposited or caused to be
deposited with such Trustee as trust funds in trust an amount of cash in any
combination of currency or currency unit in which the Notes are payable (except
as otherwise specified pursuant to Section 301 of the Original Indenture for the
Notes) and/or Lexington Common Shares sufficient to pay and discharge the entire
indebtedness on such Notes for principal and accrued and unpaid interest
(including Additional Interest, if any), if any, and pay all other sums payable
on, and securities deliverable in respect of, the Notes and under the Indenture
in respect of such Notes; (B) no Event of Default or event which with the giving
of notice or the lapse of time, or both, would become an Event of Default shall
have occurred and be continuing on the date of such deposit and no Event of
Default under Section 501(6) of the Original Indenture shall have occurred and
be continuing on the 123rd day after such date; (C) the Issuer has paid, or
caused to be paid, all sums payable by it under the Indenture in respect of the
Notes; and (D) the Issuer has delivered irrevocable instructions to the Trustee
for the Notes under the Indenture to apply the deposited money and the Lexington
Common Shares toward the payment of such Notes. In addition, the
Issuer must deliver an Officers’ Certificate and an Opinion of Counsel to the
Trustee for the Notes stating that all conditions precedent to satisfaction and
discharge have been satisfied.
Section
2.18. Events of Default; Waiver of
Past Defaults.
(a) Section
501 of the Original Indenture is modified and amended for purposes of the Notes
by deleting “or” at the end of Section 501(8) and by replacing the “.” at the
end of Section 501(9) with a “;” and by:
(i)
adding new paragraphs as follows:
“(10)
default in the delivery when due of cash, Lexington Common Shares or a
combination of cash and Lexington Common Shares on the terms set forth herein
and in the Notes, upon exercise of a Holder’s conversion right in accordance
with the terms hereof and of the Notes and the continuation of such default for
10 days; or
(11)
failure of the Issuer to provide an Issuer Notice within 20 days after the
occurrence of a Change of Control as provided in Section 2.09 of the Sixth
Supplemental Indenture, and such failure continues for 5 Business Days.”
and
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(ii)
deleting Section 501(5) of the Original Indenture in its entirety and replace it
with the following:
“(5)
default in the payment of an aggregate principal amount exceeding $25,000,000 of
any evidence of recourse indebtedness of the Issuer or any of the Guarantors,
such default having continued after the expiration of any applicable grace
period or having resulted in the acceleration of the maturity of that recourse
indebtedness, but only if that recourse indebtedness is not discharged or such
acceleration is not rescinded or annulled, in each case, within 30 days after
written notice to the Issuer from the Trustee (or to the Issuer and the Trustee
from Holders of at least 25% in principal amount of the Outstanding
Notes);”.
(b) Section
513 of the Original Indenture is modified and amended for purposes of the Notes
to add the following as clause (3):
“(3) in
respect of the failure by the Issuer to convert any Notes in accordance with the
provisions of this Indenture.”
Section
2.19. Modification. Section
902 of the Original Indenture, as modified by this Section 2.19, shall apply
solely to the Notes, and Section 902 of the Original Indenture, other than as
modified by this Section 2.19, shall not apply to the Notes. As
modified by this Section 2.19 with respect to the Notes, Section 902 of the
Original Indenture is as follows:
“With the
consent of the Holders of a majority in principal amount of all Outstanding
Notes affected by such supplemental indenture (voting together as a single
class), by Act of said Holders delivered to the Issuer and the Trustee, the
Issuer, when authorized by or pursuant to a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Notes under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Note affected thereby:
(a) change
the Stated Maturity of the principal of, or any installment interest (including
Additional Interest, if any) on, the Notes;
(b) reduce
the principal amount of, the rate of interest (including Additional Interest, if
any) on, or change the timing or reduce the amount payable on the redemption of,
the Notes;
(c) make
any change that impairs or adversely affects the rights of a Holder to convert
Notes in accordance herewith;
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(d) change
the Place of Payment, or the coin or currency, for payment of principal of, or
interest (including Additional Interest, if any) on, the Notes;
(e) reduce
or alter the method of computation of any amount payable upon redemption,
repayment or purchase of any Notes by the Issuer (or the time when such
redemption, repayment or purchase may be made);
(f) impair
the right to institute suit for the enforcement of any payment on or with
respect to Notes or the delivery of cash, Lexington Common Shares or a
combination of Lexington Common Shares as required by the Indenture upon a
conversion of Notes;
(g) release
the Guarantee of any Guarantor (except as otherwise provided in the Indenture)
or make any changes to such Guarantees in a manner adverse to the
Holders;
(h) reduce
the percentage in principal amount of the Outstanding Notes, the consent of
whose Holders is required for any such supplemental indenture, or the consent of
whose Holders is required for any waiver with respect to the Outstanding Notes
(or compliance with specified provisions of the Indenture or specified defaults
and consequences thereunder) or to reduce the quorum or voting requirements set
forth in the Indenture; or
(i) modify
any of the provisions of this Section 902, Section 513 or Section 1013 of the
Original Indenture, except to increase the required percentage to effect such
action or to provide that specified other provisions of the Indenture which may
not be modified or waived without the consent of the Holders of each Outstanding
Note affected thereby.
It shall
not be necessary for any Act of Holders under this Section 2.19 to approve the
particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.
A
supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.”
Section
2.20. Full and Unconditional
Guarantee by the Subsidiary Guarantors. The provisions of
ARTICLE FOURTEEN of the Original Indenture shall be applicable to the Notes,
with each of the Subsidiary Guarantors being guarantors of the
Notes.
Section
2.21. [Intentionally
Omitted]
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Section
2.22. Calculations in Respect of
the Notes. Except as otherwise specifically stated herein or
in the Notes, all calculations to be made in respect of the Notes shall be the
obligation of the Issuer. All calculations made by the Issuer or its
agent as contemplated pursuant to the terms hereof and of the Notes shall be
made in good faith and, absent manifest error, shall be final and binding on the
Issuer and the Holders. The Issuer shall provide a schedule of
calculations to the Trustee, and the Trustee shall be entitled conclusively to
rely upon the accuracy of the calculations by the Issuer without independent
verification. The Trustee shall forward calculations made by the
Issuer to any Holder of Notes upon written request within 20 Business Days after
the effective date of any adjustment.
The
Trustee shall not at any time be under any duty or responsibility to any holder
of Notes to determine or calculate the Conversion Rate or whether any facts
exist which may require any adjustment of the Conversion Rate, or with respect
to the nature or extent or calculation of any such adjustment when made, or with
respect to the method employed, or herein or in any supplemental indenture
provided to be employed, in making the same. The Trustee shall not be
accountable with respect to the validity or value (or the kind or amount) of any
Lexington Common Shares, or of any capital stock, other securities or other
assets or property, which may at any time be issued or delivered upon the
exchange or conversion of any Notes; and the Trustee makes no representations
with respect thereto. The Trustee shall not be responsible for any
failure of the Issuer to issue, transfer or deliver any Lexington Common Shares
or stock certificates or other securities or property or cash upon the surrender
of any Notes for the purpose of exchange or conversion or to comply with any of
the duties, responsibilities or covenants of the Issuer contained in this
Article 2. Without limiting the generality of the foregoing, the
Trustee shall not be under any responsibility to determine the correctness of
any provisions relating either to the kind or amount of shares of capital stock
or other securities or other assets or property (including cash) receivable by
holders of Notes upon the exchange or conversion of their Notes after any event
referred to herein or to any adjustment to be made with respect thereto, but may
accept as conclusive evidence of the correctness of any such provisions, and
shall be protected in relying upon, the Officers’ Certificate (which the Issuer
shall be obligated to file with the Trustee prior to the execution of any such
supplemental indenture) with respect thereto.
Section
2.23. Authorized
Denominations. The Notes shall be issued in denominations of
$1,000 and integral multiples thereof and payments of principal and interest
(including Additional Interest) on the Notes shall be made in U.S.
dollars.
Section
2.24. Conversion Agent, Paying
Agent and Securities Registrar. U.S. Bank National Association
is hereby appointed as Conversion Agent, Paying Agent and the Security Registrar
for the Notes. The Security Register for the Notes shall be
maintained by the Security Registrar in the Borough of Manhattan, The City of
New York. The rights, privileges, protections, immunities and
benefits given to the Trustee pursuant to the Indenture, including, without
limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities with respect to the
Notes.
Section
2.25. Restrictions on
Transfer. (a) Every Note (and all Notes issued in exchange therefor or in
substitution thereof) that bears or is required under this Section 2.25(a) to
bear the legend set forth in this Section 2.25(a) (together with any Lexington
Common Shares issued upon conversion of such Notes, collectively, the
“Restricted Securities”) shall be subject to the restrictions on transfer set
forth in this Section 2.25(a) (including those set forth in the legend below)
unless such restrictions on transfer shall be waived by written consent of the
Issuer, and the Holder of each such Restricted Security, by such Holder’s
acceptance thereof, agrees to be bound by all such restrictions on
transfer. As used in this Section 2.25(a), the term “transfer” means
any sale, pledge, loan, transfer or other disposition whatsoever of any
Restricted Security or any interest therein.
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Until the
expiration of the holding period applicable to sales of Restricted Securities
under Rule 144(b)(1) under the Securities Act (or any successor provision), any
certificate evidencing a Restricted Security shall bear a legend in
substantially the following form, unless such Restricted Security has been sold
pursuant to a registration statement that has been declared effective under the
Securities Act (and which continues to be effective at the time of such
transfer) or sold pursuant to Rule 144 under the Securities Act or any similar
provision then in force, or unless otherwise agreed by the Issuer in writing,
with written notice thereof to the Trustee:
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR
SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER:
(1)
REPRESENTS THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IS AWARE THAT THE TRANSFER IS BEING MADE IN RELIANCE
ON RULE 144A UNDER THE SECURITIES ACT AND IS PURCHASING THIS SECURITY IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT;
(2)
AGREES THAT IT SHALL NOT, WITHIN TWO YEARS AFTER THE LATER OF THE ORIGINAL
ISSUANCE OF THIS SECURITY AND THE LAST DATE ON WHICH LEXINGTON REALTY TRUST OR
AN AFFILIATE THEREOF WAS THE OWNER OF THIS SECURITY, RESELL OR OTHERWISE
TRANSFER THIS SECURITY OR THE LEXINGTON COMMON SHARES ISSUABLE UPON CONVERSION
OF SUCH SECURITY EXCEPT (A) TO LEXINGTON REALTY TRUST OR ANY OF THEIR RESPECTIVE
SUBSIDIARIES, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT, (C) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (D) PURSUANT TO
ANY OTHER EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, OR (E) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH RESALE OR
TRANSFER; AND
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(3)
AGREES THAT IT SHALL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED
PURSUANT TO CLAUSE 2(B) ABOVE A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN TWO
YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS SECURITY AND THE LAST
DATE ON WHICH LEXINGTON REALTY TRUST OR AN AFFILIATE THEREOF WAS THE OWNER OF
THIS SECURITY, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE
REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS SECURITY
TO THE TRUSTEE. IF THE PROPOSED TRANSFER IS PURSUANT TO CLAUSE 2(C)
ABOVE, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE
LEXINGTON MASTER LIMITED PARTNERSHIP, SUCH CERTIFICATIONS, LEGAL OPINIONS OR
OTHER INFORMATION AS LEXINGTON REALTY TRUST OR THE TRUSTEE MAY REASONABLY
REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THIS LEGEND SHALL BE REMOVED UPON THE EARLIER OF THE
TRANSFER OF THIS SECURITY PURSUANT TO CLAUSE 2(C) OR 2(D) ABOVE OR THE
EXPIRATION OF TWO YEARS FROM THE LATER OF THE ORIGINAL ISSUE DATE OF THIS
SECURITY AND THE LAST DATE ON WHICH LEXINGTON REALTY TRUST OR AN AFFILIATE
THEREOF WAS THE OWNER OF THIS SECURITY.
Each
share certificate representing Lexington Common Shares issued upon conversion of
Notes bearing a legend will bear a comparable legend (except that the legend
will indicate that the two-year period commenced on the original issuance of the
Notes) until it is removed in conformity with applicable securities
laws.
Any Notes
that are Restricted Securities and as to which such restrictions on transfer
shall have expired in accordance with their terms or as to conditions for
removal of the foregoing legend set forth therein have been satisfied may, upon
surrender of such Note for exchange to the Securities Registrar in accordance
with the provisions of this Section 2.25, be exchanged for a new Note or Notes,
of like tenor and aggregate principal amount, which shall not bear the
restrictive legend required by this Section 2.25(a). If such
Restricted Security surrendered for conversion is represented by a global Note
bearing the legend set forth in this Section 2.25(a), the principal amount of
the legended global Note shall be reduced by the appropriate principal amount
and the principal amount of a global Note without the legend set forth in this
Section 2.25(a) shall be increased by an equal principal amount. If a
global Note without the legend set forth in this Section 2.25(a) is not then
outstanding, the Issuer shall execute and the Trustee shall authenticate and
deliver an unlegended global Note to the Depositary.
In the
event Rule 144(b)(1) under the Securities Act (or any successor provision) is
amended to shorten the two year period under Rule 144(b)(1), then, the
references in the restrictive legends set forth above to “ONE YEAR,” and in the
corresponding transfer restrictions described above, and in the Notes and the
Lexington Common Shares shall be deemed to refer to such shorter period, from
and after receipt by the Trustee of an Officers’ Certificate and an Opinion of
Counsel to that effect. As soon as reasonably practicable after the
public announcement of the effectiveness of any such amendment to shorten the
one year period under Rule 144(b)(1), unless such changes would otherwise be
prohibited by, or would cause a violation of, the federal securities laws
applicable at the time, the Issuer shall provide the Trustee an Officers’
Certificate and an Opinion of Counsel as to the effectiveness of such amendment
and the effectiveness of such change to the restrictive legends and transfer
restrictions.
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(a) Any
Restricted Securities, prior to the expiration of the holding period applicable
to sales thereof under Rule 144(b)(1) under the Securities Act (or any successor
provision), purchased or owned by the Issuer or any Affiliate thereof may not be
resold by the Issuer or such Affiliate and shall be surrendered to the Trustee
for cancellation. Upon expiration of the holding period applicable
Restricted Securities under Rule 144(b)(1) under the Securities Act (or any
successor provision), the Notes may, to the extent permitted by applicable law,
be reissued or sold or may be surrendered to the Trustee for
cancellation. Any Notes surrendered for cancellation may not be
reissued or resold and shall be cancelled promptly by the Trustee.
(b) The
Trustee shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this instrument or
under applicable law with respect to any transfer of any interest in any Note
other than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly
required by, the terms of this instrument, and to examine the same to determine
substantial compliance as to form with the express requirements
hereof.
Section
2.26. Rule 144A Information
Requirement. If at any time within the period prior to the
expiration of the holding period applicable to sales thereof under Rule
144(b)(1) under the Securities Act (or any successor provision), the Issuer is
not subject to Section 13 or 15(d) under the Exchange Act, the Issuer covenants
and agrees that it will make available to any holder or beneficial holder of
Notes or any Lexington Common Shares issued upon conversion thereof which
continue to be Restricted Securities in connection with any sale thereof and any
prospective purchaser of Notes or such Lexington Common Shares designated by
such holder or beneficial holder, the information required pursuant to Rule
144A(d)(4) under the Securities Act upon the request of any holder or beneficial
holder of the Notes or such Lexington Common Shares, all to the extent required
to enable such holder or beneficial holder to sell its Notes or Lexington Common
Shares without registration under the Securities Act within the limitation of
the exemption provided by Rule 144A unless a resale shelf registration statement
in respect of the Notes and the Lexington Common Shares is
available.
Section
2.27. Provision of Financial
Information. (a) So long as the Notes are outstanding and
whether or not required by the Commission, the Issuer will furnish to the
Trustee within 15 days of the time periods specified in the Commission’s rules
and regulations: (i) all annual and quarterly financial information that would
be required to be contained in filings with the Commission on Forms 10-K and
10-Q if the Issuer were required to file those filings, including a related
“Management’s Discussion and Analysis of Financial Condition and Results of
Operations” and, with respect to the annual information only, a report on the
annual financial statements by the certified independent accountants of the
Issuer; and (ii) all current reports that would be required to be filed with the
Commission on Form 8-K if the Issuer were required to file such
reports.
(b) If
the Issuer is not subject to Sections 13 and 15(d) of the Exchange Act, the
Issuer will (A) furnish to the holders of the Notes, without cost to such
holders, a copy of the information and reports referred to in clause (a) above
within 15 days of the time periods specified in the Commission’s rules and
regulations, and (B) upon written request and payment of the reasonable cost of
duplication and delivery, promptly supply to any prospective holder of the debt
securities a copy of the information and reports referred to in clause
(a).
-40-
In
addition, whether or not required by the Commission, the Issuer will file a copy
of the information and reports referred to above with the Commission for public
availability within the time periods specified in the Commission’s rules and
regulations (unless the Commission will not accept such a filing).
The
Issuer will be deemed to have satisfied the obligation to deliver the foregoing
financial information if the information is filed on the Commission’s ▇▇▇▇▇
system in the timeframes otherwise applicable for delivery to the Trustee, to
Holders or prospective Holders, as the case may be; provided, however, the Trustee
shall have no responsibility whatsoever to determine if such filings have taken
place.
Delivery
of such reports, information and documents to the Trustee shall be for
information purposes only and the Trustee’s receipt of such shall not, in the
absence of gross negligence, bad faith or willful misconduct on its part,
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Issuer’s
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers’ Certificates).
ARTICLE
THREE
FORM OF
NOTES
Section
3.01. Form of
Notes. The Notes and the Trustee’s certificate of
authentication to be borne by such Notes shall be substantially in the form set
forth in Exhibit A hereto. Any of the Notes may have such letters,
numbers or other marks of identification and such notations, legends,
endorsements or changes as the officers executing the same may approve
(execution thereof to be conclusive evidence of such approval) and as are not
inconsistent with the provisions of the Indenture, or as may be required by the
Depositary or by the National Association of Securities Dealers, Inc. in order
for the Notes to be tradable on The PORTALSM Market
or as may be required for the Notes to be tradable on any other market developed
for trading of securities pursuant to Rule 144A or as may be required to comply
with any applicable law or with any rule or regulation made pursuant thereto or
with any rule or regulation of any securities exchange or automated quotation
system on which the Notes may be listed, or to conform to usage, or to indicate
any special limitations or restrictions to which any particular Notes are
subject.
ARTICLE
FOUR
MISCELLANEOUS
Section
4.01. Relation to Original
Indenture. This Sixth Supplemental Indenture supplements the
Original Indenture, as amended and supplemented, and shall be a part and subject
to all the terms thereof. Except as supplemented hereby, all of the
terms, provisions and conditions of the Original Indenture, as amended and
supplemented, and the Securities issued thereunder shall continue in full force
and effect.
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Section
4.02. Concerning the
Trustee. The Trustee shall not be responsible for any recital
herein (other than the second and fourth recitals as they appear and as they
apply to the Trustee) as such recitals shall be taken as statements of the
Issuer, or the validity of the execution by the Issuer of this Sixth
Supplemental Indenture. The Trustee makes no representations as to
the validity or sufficiency of this instrument.
Section
4.03. Effect of
Headings. The Article and Section headings herein are for
convenience of reference only and shall not affect the construction
hereof.
Section
4.04. Counterparts. This
instrument may be executed in counterparts, each of which shall be deemed an
original, but all of which shall together constitute one and the same
instrument.
Section
4.05. Governing
Law. This instrument shall be governed by and construed in
accordance with the laws of the State of New York.
Section
4.06. Account Opening
Information. (a) For accounts opened in the
U.S.: To help the government fight the funding of terrorism
and money laundering activities, Federal law requires all financial institutions
to obtain, verify, and record information that identifies each person who opens
an account. When an account is opened, the Trustee will request
information that will allow it to identify relevant parties.
(b) For non-U.S.
accounts: To help in the fight against the funding of
terrorism and money laundering activities, the Trustee, along with all financial
institutions, is required to obtain, verify, and record information that
identifies each person who opens an account. When an account is
opened, the Trustee will request information that will allow it to identify
relevant parties.
[signature
pages follow]
-42-
IN
WITNESS WHEREOF, the parties hereto have caused this Sixth Supplemental
Indenture to be duly executed as of the day and year first above
written.
|
ISSUER:
|
||
|
as
Issuer of the Notes
|
||
|
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
|
|
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
||
|
Title: Executive
Vice President
|
||
|
SUBSIDIARY
GUARANTORS:
|
||
|
LEPERCQ
CORPORATE INCOME FUND L.P.,
|
||
|
a
Delaware limited partnership, as a
Subsidiary
Guarantor |
||
|
By:
|
Lex
GP-1 Trust, its general partner, a Delaware
statutory trust |
|
|
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
|
|
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
||
|
Title: Vice
President
|
||
|
LEPERCQ
CORPORATE INCOME FUND II L.P.,
|
||
|
a
Delaware limited partnership, as a
Subsidiary
Guarantor |
||
|
By:
|
Lex
GP-1 Trust, its general partner, a Delaware
statutory trust |
|
|
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
|
|
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
||
|
Title: Vice
President
|
||
|
NET
3 ACQUISITION L.P., a Delaware limited
partnership, as a Subsidiary Guarantor |
||
|
By:
|
Lex
GP-1 Trust, its general partner, a Delaware
statutory trust |
|
|
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
|
|
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
||
|
Title: Vice
President
|
||
|
LEX
GP-1 TRUST,
|
||
|
as
a Subsidiary Guarantor
|
||
|
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
|
|
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
||
|
Title: Vice
President
|
||
|
LEX
LP-1 TRUST,
|
||
|
as
a Subsidiary Guarantor
|
||
|
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
|
|
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
||
|
Title: Vice
President
|
||
|
LEXINGTON
OLIVE BRANCH MANAGER LLC, a Delaware limited liability company, as a
Subsidiary
Guarantor |
||
|
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
|
|
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
||
|
Title: Vice
President
|
||
|
LEXINGTON
REALTY ADVISORS, INC., a Delaware corporation, as a Subsidiary
Guarantor
|
||
|
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
|
|
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
||
|
Title: Vice
President
|
||
|
LEXINGTON
SOUTHFIELD LLC, a Delaware limited
liability
company, as a Subsidiary Guarantor
|
|
|
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
|
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
|
|
Title: Vice
President
|
|
|
LEXINGTON
WAXAHACHIE MANAGER LLC, its
sole
general partner, a Delaware limited liability
company,
as a Subsidiary Guarantor
|
|
|
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
|
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
|
|
Title: Vice
President
|
|
|
LXP
I TRUST, a Delaware statutory trust, as a
Subsidiary
Guarantor
|
|
|
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
|
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
|
|
Title: Vice
President
|
|
|
LEXINGTON
WESTPORT MANAGER LLC, a
Delaware
limited liability company, as a Subsidiary
Guarantor
|
|
|
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
|
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
|
|
Title: Vice
President
|
|
|
LEXINGTON
COLLIERVILLE MANAGER LLC, a
Delaware
limited liability company, as a Subsidiary
Guarantor
|
|
|
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
|
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
|
|
Title: Vice
President
|
|
|
LEXINGTON
▇▇▇▇▇▇ MANAGER LLC, a Delaware
limited
liability company, as a Subsidiary Guarantor
|
|
|
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
|
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
|
|
Title: Vice
President
|
|
|
LEXINGTON
▇▇▇▇▇▇▇▇ MANAGER LLC, a
Delaware
limited liability company, as a Subsidiary
Guarantor
|
|
|
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
|
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
|
|
Title: Vice
President
|
|
|
LEXINGTON
FORT STREET TRUSTEE LLC, a
Delaware
limited liability company, as a Subsidiary
Guarantor
|
|
|
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
|
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
|
|
Title: Vice
President
|
|
|
LEXINGTON
HONOLULU MANAGER LLC, a
Delaware
limited liability company, as a Subsidiary
Guarantor
|
|
|
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
|
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
|
|
Title: Vice
President
|
|
|
LEXINGTON
LAC LENEXA GP LLC, a Delaware
limited
liability company, as a Subsidiary Guarantor
|
|
|
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
|
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
|
|
Title: Vice
President
|
|
|
LEXINGTON
MLP WESTERVILLE MANAGER
LLC,
a Delaware limited liability company, as a
Subsidiary
Guarantor
|
|
|
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
|
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
|
|
Title: Vice
President
|
|
|
LEXINGTON
TOY TRUSTEE LLC, a Delaware
limited
liability company, as a Subsidiary Guarantor
|
|
|
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
|
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
|
|
Title: Vice
President
|
|
|
LEX-PROPERTY
HOLDINGS LLC, a Delaware
limited
liability company, as a Subsidiary Guarantor
|
|
|
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
|
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
|
|
Title: Vice
President
|
|
|
LSAC
CROSSVILLE MANAGER LLC, a Delaware
limited
liability company, as a Subsidiary Guarantor
|
|
|
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
|
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
|
|
Title: Vice
President
|
|
|
LSAC
GENERAL PARTNER LLC, a Delaware limited
liability
company, as a Subsidiary Guarantor
|
|
|
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
|
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
|
|
Title: Vice
President
|
|
|
LSAC
OPERATING PARTNERSHIP L.P., a Delaware
limited
partnership, as a Subsidiary Guarantor
|
|
|
By:
|
LSAC
General Partner LLC, a Delaware limited
liability
company, its general partner
|
|
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
|
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
|
|
Title: Vice
President
|
|
|
MLP
UNIT PLEDGE GP LLC, a Delaware limited
liability
company, as a Subsidiary Guarantor
|
|
|
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
|
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
|
|
Title: Vice
President
|
|
|
MLP
UNIT PLEDGE L.P., a Delaware limited
partnership,
as a Subsidiary Guarantor
|
|
|
By:
|
MLP
Unit Pledge GP LLC, a Delaware limited
liability
company, its general partner
|
|
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
|
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
|
|
Title: Vice
President
|
|
|
▇▇▇▇▇▇▇
21 AT GP LLC
|
|
|
▇▇▇▇▇▇▇
ALTENN GP LLC
|
|
|
▇▇▇▇▇▇▇
▇▇▇▇▇ GP LLC
|
|
|
▇▇▇▇▇▇▇
BASOT GP LLC
|
|
|
▇▇▇▇▇▇▇
BEDCAR GP LLC
|
|
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ GP LLC
|
|
|
▇▇▇▇▇▇▇
CLIFMAR GP LLC
|
|
|
▇▇▇▇▇▇▇
DALHILL GP LLC
|
|
|
▇▇▇▇▇▇▇
ELWAY GP LLC
|
|
|
▇▇▇▇▇▇▇
GERSANT GP LLC
|
|
|
▇▇▇▇▇▇▇
JACWAY GP LLC
|
|
|
▇▇▇▇▇▇▇
JLE WAY GP LLC
|
|
|
▇▇▇▇▇▇▇
JOHAB GP LLC
|
|
|
▇▇▇▇▇▇▇
LANMAR GP LLC
|
|
|
▇▇▇▇▇▇▇
LIROC GP LLC
|
|
|
▇▇▇▇▇▇▇
ORPER GP LLC
|
|
|
▇▇▇▇▇▇▇
SABLEMART GP LLC
|
|
|
▇▇▇▇▇▇▇
SALISTOWN GP LLC
|
|
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ GP LLC
|
|
|
▇▇▇▇▇▇▇
SPOKMONT GP LLC
|
|
|
▇▇▇▇▇▇▇
STATMONT GP LLC
|
|
|
▇▇▇▇▇▇▇
SUNWAY GP LLC
|
|
|
▇▇▇▇▇▇▇
SUPERWEST GP LLC
|
|
|
▇▇▇▇▇▇▇
WALANDO GP LLC
|
|
|
▇▇▇▇▇▇▇
WASHTEX GP LLC
|
|
|
NK-CINN
▇▇▇▇▇▇▇▇ PROPERTY MANAGER LLC
|
|
|
NK-LUMBERTON
PROPERTY MANAGER LLC
|
|
|
NK-ODW/COLUMBUS
PROPERTY MANAGER LLC
|
|
|
LEX
GP HOLDING LLC
|
|
|
▇▇▇▇▇▇▇
MLP UNIT LLC
|
|
|
Each,
a Delaware limited liability company
|
|
|
By:
|
MLP
Manager Corp., their Manager
|
|
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
|
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
|
|
Title: Vice
President
|
|
|
TRIUSTEE:
|
|
|
U.S.
BANK NATIONAL ASSOCIATION,
|
|
|
as
Trustee
|
|
|
By:
|
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
|
Title:
Vice President
|
|
Exhibit
A
[FORM OF
NOTE]
[Include
only for Global Notes]
THIS NOTE
IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. UNLESS AND
UNTIL IT IS CONVERTED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED FORM, THIS
NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF
THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS NOTE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW
YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, CONVERSION OR PAYMENT AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
[Include
only for Notes that are Restricted Securities]
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR
SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF,
THE HOLDER:
(1)
REPRESENTS THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IS AWARE THAT THE TRANSFER IS BEING MADE IN RELIANCE
ON RULE 144A UNDER THE SECURITIES ACT AND IS PURCHASING THIS SECURITY IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT;
(2)
AGREES THAT IT SHALL NOT, WITHIN TWO YEARS AFTER THE LATER OF THE ORIGINAL
ISSUANCE OF THIS SECURITY AND THE LAST DATE ON WHICH LEXINGTON REALTY TRUST OR
AN AFFILIATE THEREOF WAS THE OWNER OF THIS SECURITY, RESELL OR OTHERWISE
TRANSFER THIS SECURITY OR THE LEXINGTON COMMON SHARES ISSUABLE UPON CONVERSION
OF SUCH SECURITY EXCEPT (A) TO LEXINGTON REALTY TRUST OR ANY OF THEIR RESPECTIVE
SUBSIDIARIES, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT, (C) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (D) PURSUANT TO
ANY OTHER EXEMPTION UNDER THE SECURITIES ACT, OR (E) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT AND WHICH
CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH RESALE OR TRANSFER;
AND
A-1
(3)
AGREES THAT IT SHALL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED
PURSUANT TO CLAUSE 2(B) ABOVE A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN TWO YEARS AFTER
THE LATER OF THE ORIGINAL ISSUE DATE OF THIS SECURITY AND THE LAST DATE ON WHICH
LEXINGTON REALTY TRUST OR AN AFFILIATE THEREOF WAS THE OWNER OF THIS SECURITY,
THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF
RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS SECURITY TO THE TRUSTEE.
IF THE PROPOSED TRANSFER IS PURSUANT TO CLAUSE 2(C) ABOVE, THE HOLDER MUST,
PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND LEXINGTON REALTY TRUST, SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS LEXINGTON REALTY TRUST OR
THE TRUSTEE MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND SHALL BE REMOVED
UPON THE EARLIER OF THE TRANSFER OF THIS SECURITY PURSUANT TO CLAUSE 2(C) OR
2(D) ABOVE OR THE EXPIRATION OF TWO YEARS FROM THE LATER OF THE ORIGINAL ISSUE
DATE OF THIS SECURITY AND THE LAST DATE ON WHICH LEXINGTON REALTY TRUST OR AN
AFFILIATE THEREOF WAS THE OWNER OF THIS SECURITY.
A-2
|
NO._____
|
PRINCIPAL
AMOUNT
|
|
CUSIP
NO. [*]
|
$[*]
|
LEXINGTON
REALTY TRUST
6.00 %
Convertible Guaranteed Note due 2030
Lexington
Realty Trust, a real estate investment trust duly organized and existing under
the laws of the State of Maryland (the “Issuer,” which term shall include any
successor under the Indenture hereinafter referred to), for value received,
hereby promises to pay to Cede & Co., or its registered assigns, the
principal sum of [*] DOLLARS ($[*]) on January 15, 2030 unless redeemed,
repurchased or converted prior to such date in accordance with the terms hereof
and of the Indenture. The Subsidiary Guarantors (each as defined on the reverse
hereof) have guaranteed the payment of principal of and interest on this
Note.
This Note
shall bear interest as specified on the reverse hereof. This Note is convertible
for the consideration specified on the reverse hereof. This Note is subject to
redemption by the Issuer at its option and to repurchase by the Issuer at the
option of the Holder as specified on the reverse hereof.
Reference
is hereby made to the further provisions of this Note set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as
if set forth at this place.
This Note
shall not be entitled to the benefits of the Indenture or the Guarantee of the
Subsidiary Guarantors or be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been manually signed by the
Trustee.
IN
WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by
facsimile by an authorized signatory.
|
LEXINGTON
REALTY TRUST, a Maryland real estate
investment
trust, as Issuer
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This is
one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
Dated:
|
U.S.
Bank National Association,
|
||
|
as
Trustee
|
||
|
By:
|
||
|
Authorized
Signatory
|
||
A-3
[REVERSE
OF NOTE]
LEXINGTON
REALTY TRUST
6.00%
Convertible Guaranteed Note due 2030
This Note
is one of a duly authorized issue of notes, debentures, bonds, or other
evidences of indebtedness of the Issuer (hereinafter called the “Securities”) of
the series hereinafter specified, all issued or to be issued under and pursuant
to an Indenture, dated as of January 29, 2007 (as amended and supplemented by
the Sixth Supplemental Indenture, dated as of January 26, 2010 (the “Sixth
Supplemental Indenture”), and as further amended or supplemented from time to
time, the “Indenture”), duly executed and delivered by the Issuer to U.S. Bank
National Association, as trustee (the “Trustee,” which term includes any
successor trustee under the Indenture with respect to the series of Securities
of which this Notes is a part), and reference is hereby made to the Indenture,
and all modifications and amendments and indentures supplemental thereto
relating to the Notes, for a description of the rights, limitations of rights,
obligations, duties, and immunities thereunder of the Trustee, the Issuer, the
subsidiaries of the Issuer that are guarantors of the Notes pursuant to the
terms of the Indenture (the “Subsidiary Guarantors”) and the Holders of the
Notes and the terms upon which the Notes are authenticated and delivered. The
Securities may be issued in one or more series, which different series may be
issued in various aggregate principal amounts, may mature at different times,
may accrue interest (if any) at different rates or formulas and may otherwise
vary as provided in the Indenture. This Note is one of a series of Securities
designated as the “6.00% Convertible Guaranteed Notes due 2030” of the Issuer
with respect to which the Subsidiary Guarantors have guaranteed the payment of
principal of and interest on this Note, initially limited (except as permitted
under the Indenture) in aggregate principal amount to $100,000,000 (or up to
$115,000,000 if the Initial Purchasers’ option to purchase additional Notes
described in the Purchase Agreement is exercised). Terms used herein without
definition and which are defined in the Indenture have the meanings assigned to
them in the Indenture.
1. INTEREST
The Notes
shall bear interest at the rate of 6.00% per annum from January 26, 2010 or from
the most recent Interest Payment Date (as defined below) to which interest has
been paid or duly provided for, as the case may be, payable semi-annually in
arrears on January 15 and July 15 of each year (each, an “Interest Payment
Date”), commencing on July 15, 2010, until the principal hereof is paid or duly
made available for payment. Interest payable on each Interest Payment Date shall
equal the amount of interest accrued for the period commencing on and including
the immediately preceding Interest Payment Date in respect of which interest has
been paid or duly provided for (or commencing on and including January 26, 2010,
if no interest has been paid or duly provided for) and ending on and including
the day preceding such Interest Payment Date. Interest on the Notes shall be
computed on the basis of a 360-day year consisting of twelve 30-day
months
2. METHOD OF
PAYMENT
Except as
provided in the Indenture, the Issuer shall pay interest on the Notes to the
Persons who are Holders of record of Notes at the close of business (whether or
not a Business Day) on the January 1 and July 1 immediately preceding the
applicable Interest Payment Date (each, a “Regular Record Date”). Holders must
surrender Notes to a Paying Agent and comply with the other terms of the
Indenture to collect the principal amount, Redemption Price, Optional Repurchase
Price or Change of Control Purchase Price of the Notes, plus, if applicable,
accrued and unpaid interest (including Additional Interest, if any) payable as
herein provided at Maturity, upon redemption at the Issuer’s option or
repurchase at the Holder’s option. The Issuer shall pay, in money of the United
States that at the time of payment is legal tender for payment of public and
private debts, all amounts due in cash with respect to the Notes on the dates
and in the manner provided in this Note and the Indenture.
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3. PAYING AGENT, CONVERSION
AGENT AND SECURITY REGISTRAR
Initially,
the Trustee shall act as Paying Agent, Conversion Agent and Security Registrar.
The Issuer hereby initially designates the Corporate Trust Office of the Trustee
in New York, New York as the office to be maintained by it where this Note may
be presented for payment, registration of transfer or exchange, where notices or
demands to or upon the Issuer in respect of this Note or the Indenture may be
served and where the Notes may be surrendered for exchange in accordance with
the provisions of paragraph 6 hereof and the Indenture. The Issuer may appoint
and change any Paying Agent, Conversion Agent, Security Registrar or
co-registrar or approve a change in the office through which any Paying Agent
acts without notice, other than notice to the Trustee.
4. REDEMPTION BY THE
ISSUER
The
Issuer shall not have the right to redeem any Notes prior to January 15, 2017,
except to preserve the status of the Issuer as a real estate investment
trust. If the Issuer determines it is necessary to redeem the Notes
in order to preserve its status as a real estate investment trust, the Issuer
may redeem the Notes then Outstanding, in whole or in part, at 100% of the
principal amount of the Notes to be redeemed plus accrued and unpaid interest
(including Additional Interest, if any) to, but not including, the Redemption
Date.
The
Issuer shall have the right to redeem the Notes for cash, in whole or in part at
any time or from time to time, on or after January 15, 2017 at 100% of the
principal amount of the Notes to be redeemed plus accrued and unpaid interest
(including Additional Interest, if any) to, but not including, the Redemption
Date (the “Redemption Price”).
Notice of
redemption at the option of the Issuer shall be mailed at least 30 days but not
more than 60 days before the Redemption Date to each Holder of Notes to be
redeemed at the Holder’s registered address. Notes in denominations
larger than $1,000 principal amount may be redeemed in part but only in integral
multiples of $1,000 principal amount.
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5.
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OPTIONAL REPURCHASE
RIGHTS; REPURCHASE AT OPTION OF HOLDER UPON A CHANGE OF
CONTROL
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(a) Subject
to the terms and conditions of the Indenture, a Holder shall have the right to
require the Issuer to repurchase all of its Notes, or any portion of the
principal amount thereof that is equal to $1,000 or an integral multiple
thereof, on each of January 15, 2017, January 15, 2020 and January 15, 2025
(each, an “Optional Repurchase Date”) for cash equal to 100% of the principal
amount of the Notes to be repurchased plus accrued and unpaid interest
(including Additional Interest, if any) to, but not including, such Optional
Repurchase Date (the “Optional Repurchase Price”), upon delivery to the Paying
Agent of an Optional Repurchase Notice containing the information set forth in
the Indenture, from the opening of business on the date that is 20 Business Days
prior to such Optional Repurchase Date until the close of business on the second
Business Day prior to such Optional Repurchase Date and upon compliance with the
other terms of the Indenture.
(b) If
a Change of Control occurs at any time prior to January 15, 2017, a Holder shall
have the right, at such Holder’s option and subject to the terms and conditions
of the Indenture, to require the Issuer to repurchase all or any of such
Holder’s Notes having a principal amount equal to $1,000 or an integral multiple
thereof on the date (the “Change of Control Purchase Date”) specified by the
Issuer in the Issuer Notice (which date shall be no earlier than 15 days and no
later than 30 days after the date of such Issuer Notice) for cash equal to the
100% of the principal amount of the Notes to be repurchased plus accrued and
unpaid interest (including Additional Interest, if any) to, but not including,
the Change of Control Purchase Date (the “Change of Control Purchase
Price”).
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(c) Holders
have the right to withdraw any Optional Repurchase Notice or Change of Control
Purchase Notice, as the case may be, by delivery to the Paying Agent of a
written notice of withdrawal in accordance with the provisions of the
Indenture.
(d) If
the Paying Agent holds, in accordance with the terms of the Indenture, money
sufficient to pay the Optional Repurchase Price or Change of Control Purchase
Price of such Notes on the Optional Repurchase Date or Change of Control
Purchase Date, as the case may be, then, on and after such date, such Notes
shall cease to be Outstanding and interest on such Notes shall cease to accrue,
and all other rights of the Holder shall terminate (other than the right to
receive the Optional Repurchase Price or Change of Control Purchase Price upon
delivery or transfer of the Notes).
6. CONVERSION
The Notes
shall be convertible into the consideration specified in the Indenture at such
times, upon compliance with such conditions and upon the terms set forth in the
Indenture.
The
initial Conversion Rate shall be 141.1383 Lexington Common Shares per $1,000
principal amount of Notes, subject to adjustment in certain circumstances as
specified in the Indenture. Notes tendered for conversion by a Holder
after the close of business on any Regular Record Date for an interest payment
and on or prior to the corresponding Interest Payment Date must be accompanied
by payment of an amount equal to the interest that such Holder is to receive on
such Notes on such Interest Payment Date; provided, however, that no
such payment shall be required (1) if such Notes have been called for redemption
on a Redemption Date that is after such Regular Record Date and on or prior to
the second Business Day following such Interest Payment Date or (2) with respect
to overdue interest (including Additional Interest), if any overdue interest
exists at the time of conversion with respect to such Notes.
To
convert the Notes, a Holder must (a) (i) complete and manually sign the
irrevocable conversion notice on the reverse of the Notes (or complete and
manually sign a facsimile of such notice) and deliver such notice to the
Conversion Agent at the office maintained by the Conversion Agent for such
purpose, (ii) surrender the Notes to the Conversion Agent and (iii) furnish
appropriate endorsements and transfer documents if required by the Conversion
Agent, the Issuer or the Trustee, with respect to Notes which are in
certificated form, or, (b) if the Notes are in book-entry form, comply with the
appropriate procedures of the Depositary and, in the case of certificated Notes
and Notes in book-entry form, pay any transfer or similar tax, if
required. The date on which the Holder satisfies all such
requirements shall be deemed to be the date on which the applicable Notes shall
have been tendered for conversion.
If the
Holder has delivered an Optional Repurchase Notice or a Change of Control
Purchase Notice requiring the Issuer to repurchase all or a portion of this Note
pursuant to paragraph 5 hereof, then this Note (or portion hereof subject to
such Optional Repurchase Notice or Change of Control Purchase Notice) may be
converted only if the Optional Repurchase Notice or Change of Control Purchase
Notice is withdrawn in accordance with the terms of the Indenture.
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7. RANKING
The Notes
are unsecured obligations of the Issuer and shall rank pari passu in right of
payment with all other unsecured unsubordinated indebtedness of the Issuer from
time to time outstanding.
8. GUARANTEES
This Note
is fully and unconditionally guaranteed as to the due and punctual payment of
principal of and interest on this Note by the Subsidiary Guarantors, it being
understood and agreed that such Guarantees are subject to the limitations set
forth in the Indenture and that the Guarantees of Subsidiary Guarantors may be
released in accordance with the terms of the Indenture.
9. DEFAULTED
INTEREST
Except as
otherwise specified herein or in the Indenture, any Defaulted Interest on this
Note shall forthwith cease to be payable to the Holder hereof on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Issuer as provided for in Section 307 of the
Indenture.
10. DENOMINATIONS; TRANSFER;
EXCHANGE
This Note
is issuable only in fully registered form, without coupons, in denominations of
$1,000 and integral multiples thereof. This Note may be exchanged for
a like aggregate principal amount of Notes of other authorized denominations at
the office or agency of the Issuer in The City of New York, in the manner and
subject to the limitations provided herein and in the Indenture, but without the
payment of any charge except for any tax or other governmental charge imposed in
connection therewith. Upon due presentment for registration of
transfer of this Note at the office or agency of the Issuer in The City of New
York, one or more new Notes of authorized denominations in an equal aggregate
principal amount shall be issued to the transferee in exchange therefor, and
bearing such restrictive legends as may be required by the Indenture, but
without payment of any charge except for any tax or other governmental charge
imposed in connection therewith. In the event of any redemption in
part, the Issuer shall not be required to: (i) issue or register the transfer or
exchange of any Note during a period beginning at the opening of business 15
days before any selection of Notes for redemption and ending at the close of
business on the earliest date on which the relevant notice of redemption is
deemed to have been given to all Holders of Notes to be so redeemed, or (ii)
register the transfer or exchange of any Note so selected for redemption, in
whole or in part, except the unredeemed portion of any Note being redeemed in
part.
11. PERSONS DEEMED
OWNERS
The
Holder of this Note may be treated as the owner of this Note for all purposes,
and none of the Issuer or the Trustee nor any authorized agent of the Issuer or
the Trustee shall be affected by any notice to the contrary, except as required
by law.
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12. MODIFICATION AND AMENDMENT;
WAIVER
The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Issuer and the
rights of the Holders of the Notes under the Indenture at any time by the Issuer
and the Trustee with the consent of the Holders of not less than a majority in
principal amount of the Notes affected thereby (voting together as a single
class). The Indenture also provides that certain amendments or
modifications may not be made without the consent of each Holder to be affected
thereby, while other amendments or modifications may be made without the consent
of the Holders. Furthermore, provisions in the Indenture permit the
Holders of not less than a majority in principal amount of Notes, in certain
instances, to waive, on behalf of all of the Holders of Securities of such
series, certain past defaults under the Indenture and their
consequences. Any such waiver by the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this Note
and other Notes issued upon the registration of transfer hereof or in exchange
hereof, or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Note.
13. DEFAULTS AND
REMEDIES
If an
Event of Default occurs and is continuing, the Trustee, or the Holders of not
less than 25% in aggregate principal amount of the Notes at the time
Outstanding, may declare the principal amount and any accrued and unpaid
interest, of all the Notes to be due and payable in the manner and with the
effect provided in the Indenture; provided that if certain
events default relating to bankruptcy, insolvency or reorganization, or court
appointment of a receiver, liquidator or trustee of the Issuer, any Subsidiary
Guarantor or any of the other Significant Subsidiaries of the Issuer or the
Operating Partnerships or any of properties owned by these entities occurs and
is continuing, the principal (or such portion thereof) of and accrued and unpaid
interest on all of the Notes will become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any
Holders.
Events of
Default in respect of the Notes are set forth in Section 501 of the Indenture,
as amended by the First Supplemental Indenture. Holders may not
enforce the Indenture or the Notes except as provided in the
Indenture.
14. CONSOLIDATION, MERGER, AND
SALE OF ASSETS
Except as
otherwise provided in the Indenture, in the event of a consolidation or merger
of the Issuer or a Guarantor or a sale, lease or conveyance of all or
substantially all of the assets of the Issuer or a Guarantor as described in
Article Eight of the Indenture the successor entity to the Issuer or such
Guarantor, as the case may be, shall succeed to and be substituted for the
Issuer or such Guarantor, as the case may be, and may exercise the rights and
powers of the Issuer or such Guarantor, as the case may be, under the Indenture,
and thereafter, except in the case of a lease, the Issuer or such Guarantor, as
the case may be, shall be relieved of all obligations and covenants under the
Indenture and the Notes and the Guarantees, as the case may be.
15. TRUSTEE AND AGENT DEALINGS
WITH THE ISSUER
The
Trustee, Paying Agent, Conversion Agent and Securities Registrar under the
Indenture, each in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with and collect obligations owed to it
by the Issuer or its Affiliates and may otherwise deal with the Issuer or its
Affiliates with the same rights it would have if it were not Trustee, Paying
Agent, Conversion Agent or ▇▇▇▇▇▇▇▇▇.
▇▇. CALCULATIONS IN RESPECT OF
THE NOTES
Except as
otherwise specifically stated herein or in the Indenture, all calculations to be
made in respect of the Notes shall be the obligation of the
Issuer. All calculations made by the Issuer or its agent as
contemplated pursuant to the terms hereof and of the Indenture shall be final
and binding on the Issuer and the Holders absent manifest error. The
Issuer shall provide a schedule of calculations to the Trustee, and the Trustee
shall be entitled conclusively to rely upon the accuracy of the calculations by
the Issuer without independent verification. The Trustee shall
forward calculations made by the Issuer to any Holder of Notes upon written
request.
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17.
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IMMUNITY
OF INCORPORATORS, LIMITED PARTNERS, MEMBERS SHAREHOLDERS,
TRUSTEES, DIRECTORS AND
OFFICERS.
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No
recourse shall be had for the payment of the principal of, or the interest, if
any, on any Note, or for any claim based thereon, or upon any obligation,
covenant or agreement of the Indenture, against any incorporator, limited
partner, member, shareholder, trustee, director, officer or employee, as such,
past, present or future, of the Issuer, any Subsidiary Guarantor or of any
successor entity to any of them, either directly or indirectly through the
Issuer, any Subsidiary Guarantor or any successor entity to any of them, whether
by virtue of any constitution, statute or rule of law or by the enforcement of
any assessment of penalty or otherwise; it being expressly agreed and understood
that the Indenture and all the Notes are solely obligations of the Issuer and
the Guarantees are solely the obligations of the Subsidiary Guarantors and that
no personal liability whatever shall attach to, or is incurred by, any
incorporator, limited partner, shareholder, trustee, director, officer or
employee, past, present or future, of the Issuer, any Subsidiary Guarantor or of
any successor entity to any of them, either directly or indirectly through the
Issuer, any Subsidiary Guarantor or any successor corporation to any of them,
because of the incurring of the indebtedness hereby authorized or under or by
reason of any of the obligations, covenants or agreements contained in the
Indenture or in any of the Notes or any of the Guarantees, or to be implied
herefrom or therefrom; and that all such personal liability is hereby expressly
released and waived as a condition of, and as part of the consideration for, the
execution of the Indenture and the issuance of the Notes and the
Guarantees.
18. GOVERNING
LAW
The
Indenture, this Note and the Guarantees shall be governed by and construed in
accordance with the laws of the State of New York.
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ASSIGNMENT
FOR VALUE
RECEIVED, the
undersigned
hereby sell(s),
assign(s)
and transfer(s) unto
PLEASE
INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
(Please
print or Typewrite Name and Address
Including
Postal Zip Code of Assignee)
the
within Note and all rights thereunder, and hereby irrevocably constitutes and
appoints
to
transfer said Note on the books of the Issuer, with full power of substitution
in the premises.
In
connection with any transfer of the Note prior to the expiration of the holding
period applicable to sales thereof under Rule 144(b)(1) under the Securities Act
(or any successor provision) (other than any transfer pursuant to a registration
statement that has been declared effective under the Securities Act), the
undersigned confirms that such Note is being transferred:
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To
Lexington Realty Trust or any of their respective subsidiaries;
or
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To
a “qualified institutional buyer” in compliance with Rule 144A under the
Securities Act of 1933, as amended;
or
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Pursuant
to and in compliance with Rule 144 under the Securities Act of 1933, as
amended; or
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Pursuant
to another exemption from registration under the Securities Act of 1933,
as amended; or
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Pursuant
to a Registration Statement which has been declared effective under the
Securities Act of 1933, as amended, and which continues to be effective at
the time of transfer.
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Unless
one of the boxes is checked, the Trustee will refuse to register any of the
Notes evidenced by this certificate in the name of any person other than the
registered holder thereof.
Dated:
Signature
Guaranteed
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NOTICE:
Signature must be guaranteed by an eligible Guarantor Institution (banks,
stockbrokers, savings and loan associations and credit unions) with
membership in an approved signature guarantee medallion program pursuant
to Securities and Exchange Commission Rule 17Ad-15.
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NOTICE:
The signature to this Assignment must correspond with the name as written
upon the face of the within Note in every particular, without alteration
or enlargement or any change
whatever.
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CONVERSION
NOTICE
To
convert this Note as provided in the Indenture, check the box: o
To
convert only part of this Note, state the principal amount to be converted (must
be $1,000 or an integral multiple of $1,000): $___.
If, in
the event the Issuer delivers shares and you want the stock certificate made out
in another person’s name, fill in the form below:
(Insert
assignee’s soc. sec. or tax I.D. no.)
(Print or
type assignee’s name, address and zip code)
(Insert
DTC Participant no.)
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Your
Signature:
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Date:
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(Sign
exactly as your name appears on the other side of this
Note)
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1
Signature guaranteed by:
By:
1
Signature must be guaranteed by an eligible Guarantor Institution (banks,
stockbrokers, savings and loan associations and credit unions) with membership
in an approved signature guarantee medallion program pursuant to Securities and
Exchange Commission Rule 17Ad-15.
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