AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 2, dated as of October 13, 2006 ("Amendment No. 2") to
the AGREEMENT AND PLAN OF MERGER, dated as of July 23, 2006, as amended by
AMENDMENT NO. 1, dated as of September 11, 2006 (collectively, 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 6.01 (b)(iii). Section 6.01(b(iii)(B)(2) of the Merger
Agreement is hereby amended and restated in its entirety as follows:
"(2) a one-time distribution of $0.17 per Company Common Share and
per common limited partnership interest of each of the Company Partnerships,
and".
1.2 Section 6.01 (b)(iv). Section 6.01(b(iv)(B)(5) of the Merger Agreement
is hereby amended and restated in its entirety as follows:
"(5) indebtedness for borrowed money incurred in order for the
Company to pay the dividend of $0.17 per Company Common Share and per common
limited partnership interest of each of the Company Partnerships set forth in
Section 6.01(b)(iii)(B)(2) or".
1.3 Section 2.05. Section 2.05 of the Merger Agreement is hereby amended
and restated in its entirety as follows:
"The closing of the REIT Merger (the "Closing") shall occur as
promptly as practicable (but in no event later than the second Business
Day) after the date (the "Satisfaction Date") on which all of the
conditions set forth in Article VIII ("the Closing Conditions"), other
than those Closing Conditions which by their terms are required to be
satisfied or waived at the Closing, shall have been satisfied or waived by
the party entitled to the benefit of the same and, subject to the
foregoing, the Closing shall take place at such time and on a date to be
specified by the parties (the "Closing Date").
Notwithstanding the foregoing, the parties hereby agree to delay the
Closing Date to on or about December 29, 2006 (the "Delayed Closing
Date"). The following provisions shall apply to such Delayed Closing Date:
(i) from the Satisfaction Date, all exceptions to the consent
requirements set forth in Sections 6.01(b) and 6.02(b), other than
the provisions set forth in Sections 6.01(b)(ii), 6.01(b)(iii),
6.02(b)(ii), 6.02(b)(iii) and the last paragraph of Sections 6.01(b)
and 6.02(b), shall be null and void and all such formerly excepted
actions shall thereafter require the consent of the other party (not
to be unreasonably withheld or delayed) and
(ii) on the Satisfaction Date, the Company shall deliver to
NRT a certificate dated as of the Satisfaction Date, signed by an
authorized officer of the Company, certifying that the
representations and warranties of the Company in this Agreement that
(A) are not made as of a specific date are true and correct in all
material respects (without giving effect to any limitation on
"materiality" set forth therein) as of the Satisfaction Date and (B)
are made as of a specific date that is on or prior to the
Satisfaction Date are true and correct (without giving effect to any
limitation as to "materiality" set forth therein), as of such date,
in each case except where the failure of such representations and
warranties to be true and correct (without giving effect to any
limitation as to "materiality" or "Material Adverse Effect" set
forth therein) would not have a Material Adverse Effect.
(iii) on the Satisfaction Date, NRT shall deliver to the
Company a certificate dated as of the Satisfaction Date, signed by
an authorized officer of NRT, certifying that the representations
and warranties of NRT in this Agreement that (A) are not made as of
a specific date are true and correct in all material respects
(without giving effect to any limitation on "materiality" set forth
therein) as of the Satisfaction Date and (B) are made as of a
specific date that is on or prior to the Satisfaction Date are true
and correct (without giving effect to any limitation as to
"materiality" set forth therein), as of such date, in each case
except where the failure of such representations and warranties to
be true and correct (without giving effect to any limitation as to
"materiality" or "Material Adverse Effect" set forth therein) would
not have a Material Adverse Effect.
(iv) on the Satisfaction Date, both parties shall deliver all
agreements and documents required under Article VIII into escrow for
delivery on and as of the Closing Date.
(v) subject to the satisfaction on or prior to the
Satisfaction Date of all of the Closing Conditions (other than final
delivery of agreements and documents required under Article VIII,
which agreements and documents shall be executed and held in escrow
for delivery on and as of the Closing Date) as well as delivery of
the certificates referred to in (ii) and (iii) above, the Closing
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Conditions, other than Section 8.01(c), 8.01(d), 8.02(b), 8.02(c)
(only with respect to the conditions specified in Section 8.02(b)),
8.03(b) and 8.03(c) (only with respect to the conditions specified
in Section 8.03(b)) shall be irrevocably waived with respect to the
Delayed Closing Date.
The Closing shall take place at the offices of Paul, Hastings,
Xxxxxxxx & Xxxxxx LLP, 75 East 55th Street, New York, New York, or at such
other place as agreed to by the parties hereto. Notwithstanding anything
herein to the contrary, the parties may at any time mutually agree in
writing to accelerate the Closing Date.
ARTICLE 2
MISCELLANEOUS PROVISIONS
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. 2 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. 2 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. 2 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. 2 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
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Name: X. Xxxxxx Eglin
Title: Chief Executive Officer
XXXXXXX REALTY TRUST, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
