Exhibit 2.1
EXECUTION COPY
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1, dated as of September 11, 2006 ("Amendment No. 1"),
to the AGREEMENT AND PLAN OF MERGER, dated as of July 23, 2006 (the "Merger
Agreement"), by and among Lexington Corporate Properties Trust (the "Company")
and Xxxxxxx Realty Trust, Inc. ("NRT"). Capitalized terms used and not otherwise
defined herein shall have the meanings set forth in the Merger Agreement.
RECITALS
The Company and NRT wish to amend the Merger Agreement pursuant to
the terms hereof.
AGREEMENT
In consideration of the foregoing and the mutual covenants and
agreements herein contained, and intending to be legally bound hereby, the
parties agree as follows:
ARTICLE 1
AMENDMENTS
1.1 Section 9.01. Section 9.01(j) of the Merger Agreement is hereby
amended by replacing the date "January 31, 2007" with the date "March 31, 2007."
1.2 Section 7.22. Section 7.22 of the Merger Agreement is hereby amended
and restated in its entirety as follows:
"SECTION 7.22 Amended NRT OP Limited Partnership Agreement.
(a) Simultaneously with the Closing, the Company and NRT shall
each execute and deliver the Amended NRT OP LP Agreement.
(b) The parties acknowledge that NRT has an obligation to file
the registration statement referenced in Section 8.5.B. of the
Amended NRT OP LP Agreement (the "NRT OP Registration Statement").
In order for the NRT OP Registration Statement to be timely filed
(i.e. no later than November 21, 2006), the parties acknowledge that
its preparation may need to commence prior to the Effective Time.
If the Effective Time of the Merger occurs on or before
November 7, 2006, the Company shall prepare and file the NRT OP
Registration Statement on or prior to November 21, 2006. If the
Effective Time of the Merger has not occurred by October 25, 2006,
NRT shall prepare and deliver to the Company on or before November
1, 2006 a draft of the NRT OP Registration Statement (together with
all required exhibits) in form substantially ready to be filed with
the SEC. If the
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Effective Time of the Merger occurs on or after November 7, 2006 but
before November 21, 2006, the Company shall finalize the draft NRT
OP Registration Statement and file same on or prior to November 21,
2006, unless previously filed by NRT, which NRT may do in its sole
and absolute discretion. If the Effective Time occurs after November
21, 2006, the Company shall have no obligation to file the NRT OP
Registration Statement. The parties agree to cooperate and use their
reasonable judgment in determining which party shall be responsible
for the filing of the NRT OP Registration Statement during the
period between November 7 and November 21, 2006, if the Effective
Time has not occurred by November 7, 2006."
1.3 Exhibit C. Exhibit C to the Merger Agreement is hereby amended as
follows:
(a) Section 8.5.A. of the Amended NRT OP LP Agreement is hereby
amended by adding a new sentence at the end thereof as follows:
"For purpose of this Section 8.5.A. only, the term
"Majority-in-Interest of the Limited Partners" shall not include any Partnership
Units held by LXP or LXP LP."
(b) Section 8.5.B. of the Amended NRT OP LP Agreement is hereby
amended and restated in its entirety as follows:
"B. In order to facilitate the sale of REIT Shares issued in
exchange for Special Voting Partnership Units pursuant to the terms of Section
8.4 hereof, if not already filed prior to the date hereof, LXP agrees to cause a
Registration Statement on Form S-3 to be filed with the SEC on or before
November 21, 2006 registering for sale up to the number of REIT Shares issuable
upon exchange of the Special Voting Partnership Units."
(c) Section 13.1.A. of the Amended NRT OP LP Agreement is hereby
amended and restated in its entirety as follows:
"A. an event of withdrawal of the General Partner, as defined
in the Act, unless (i) at the time of such event there is at least one remaining
general partner of the Partnership who carries on the business of the
Partnership (and each remaining general partner of the Partnership is hereby
authorized to carry on the business of the Partnership in such an event) or (ii)
within ninety (90) days after such event, a Majority-in-Interest of the Limited
Partners agree in writing to continue the business of the Partnership and to the
appointment, effective as of the date of such event, of LXP as the General
Partner of the Partnership (and LXP agrees to become a general partner of the
Partnership);"
ARTICLE 2
MISCELLANEOUS PROVISIONS
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2.1 Authorization. Each of the Company and NRT is duly authorized to
execute and deliver this Amendment and is and will continue to be duly
authorized to perform its obligations under the Merger Agreement, as amended
hereby.
2.2 Ratification and Confirmation of the Merger Agreement; No Other
Changes. Except as modified by this Amendment, the Merger Agreement is hereby
ratified and confirmed in all respects. Nothing herein shall be held to alter,
vary or otherwise affect the terms, conditions and provision of the Merger
Agreement, other than as contemplated herein.
2.3 Effectiveness. This Amendment shall be effective as of the date
hereof.
2.4 Amendment and Modification. This Amendment No. 1 may not be amended,
modified or supplemented in any manner, whether by course of conduct or
otherwise, except by an instrument in writing signed on behalf of each party and
otherwise as expressly set forth herein.
2.5 Counterparts. This Amendment No. 1 may be executed in two or more
counterparts, all of which shall be considered one and the same instrument and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party.
2.6 Facsimile Signature. This Amendment No. 1 may be executed by facsimile
signature and a facsimile signature shall constitute an original for all
purposes.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Company and NRT have caused this Amendment No. 1
to be executed as of the date first written above by their respective officers
thereunto duly authorized.
LEXINGTON CORPORATE PROPERTIES TRUST
By: /s/ X. Xxxxxx Eglin
--------------------------------
Name: X. Xxxxxx Eglin
Title: Chief Executive Officer
XXXXXXX REALTY TRUST, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
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