LEXINGTON REALTY TRUST,
Issuer,
CERTAIN SUBSIDIARIES OF LEXINGTON REALTY TRUST,
Subsidiary Guarantors,
and
U.S. BANK NATIONAL ASSOCIATION,
Trustee
FIFTH SUPPLEMENTAL INDENTURE
Dated as of June 9, 2009
5.45% Exchangeable Guaranteed Notes due 2027
FIFTH SUPPLEMENTAL INDENTURE
THIS FIFTH SUPPLEMENTAL INDENTURE (this “Fifth Supplemental Indenture”), is entered into as of June 9, 2009, 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 the “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 100 Wall Street, Suite 1600, New York, New York 10005.
WHEREAS, the Issuer, 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 301 of the Original Indenture, the Issuer, the Guarantors and the Trustee established the terms of a series of Securities entitled the “5.45% Exchangeable Guaranteed Notes due 2027” of the Issuer in respect of which the Parent Guarantor and the Subsidiary Guarantors are guarantors (the “Notes”) pursuant to that First Supplemental Indenture dated as of January 29, 2007 among the Issuer, the Guarantors and the Trustee (the “First Supplemental Indenture”);
WHEREAS, pursuant to Section 2.02 of the First Supplemental Indenture and Section 303 of the Original Indenture, the Issuer, the Guarantors and the Trustee increased the aggregate principal amount of the Notes by the issuance of Additional Notes pursuant to that Second Supplemental Indenture dated as of March 9, 2007 among the Issuer, the Guarantors and the Trustee (the “Second Supplemental Indenture”);
WHEREAS, pursuant to Section 901(9) of the Original Indenture, the Issuer, the Guarantors and the Trustee amended certain provisions of the Indenture to correct a provision in the Indenture which was defective or inconsistent with any other provision therein pursuant to that Third Supplemental Indenture dated as of June 19, 2007 among the Issuer, the Guarantors and the Trustee (the “Third Supplemental Indenture”);
WHEREAS, pursuant to Section 901(1) of the Original Indenture, the Issuer, the Guarantors and the Trustee amended certain provisions of the Indenture to evidence the succession of Lexington Realty Trust to The Lexington Master Limited Partnership and the assumption by Lexington Realty Trust of the covenants of the Issuer, 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” and, together with the Original Indenture, the First Supplement Indenture, the Second Supplemental Indenture and the Third Supplemental Indenture, the “Indenture”);
WHEREAS, as a result of the Fourth Supplemental Indenture, the Parent Guarantor became the Issuer;
WHEREAS, pursuant to Sections 901(2) and 1405 of the Original Indenture, if any Subsidiary of the Issuer that is organized in the United States, any of the States or the District of Columbia and that was not a Lexington Credit Agreement Obligor becomes a Lexington Credit Agreement Obligor, the Issuer and the Issuer shall arrange for such Subsidiary to execute and deliver to the Trustee a supplemental indenture pursuant to which such Subsidiary Guarantor shall fully, unconditionally and irrevocably guarantee, as primary obligor and not merely as surety, to each Holder of the Securities and the Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the Obligations;
WHEREAS, the Issuer entered into that certain Credit Agreement, dated as of February 13, 2009 (the “New Credit Agreement”), among the Issuer, Lepercq Corporate Income Fund L.P., Lepercq Corporate Income Fund II L.P., and Net 3 Acquisition L.P., jointly and severally as borrowers, KeyBank National Association, as agent, and each of the financial institutions initially a signatory thereto together with their assignees pursuant to Section 12.5 therein;
WHEREAS, in connection with the New Credit Agreement, (1) the Subsidiaries of the Issuer listed on Exhibit A hereto, which were previously Subsidiary Guarantors, are no longer Lexington Credit Agreement Obligors (the “Released Subsidiary Guarantors”), (2) the Subsidiary Guarantors listed on Exhibit B hereto continue to be Lexington Credit Agreement Obligors (the “Existing Subsidiary Guarantors”), and (3) the Subsidiaries of the Issuer listed on Exhibit C hereto, which were not previously Subsidiary Guarantors, are now Lexington Credit Agreement Obligors (the “New Subsidiary Guarantors”);
WHEREAS, the Issuer has delivered an Officers’ Certificate to the Trustee designating the New Credit Agreement as the Lexington Credit Agreement under the Indenture;
WHEREAS, pursuant to Section 1404 of the Indenture, the Issuer has delivered an Officers’ Certificate to the Trustee informing the Trustee of the termination of all of the obligations under the Lexington Credit Agreement of the Released Subsidiary Guarantors, which released each such former Subsidiary Guarantor from all of its obligations under the Indenture and its Guarantee and such Guarantee has terminated;
WHEREAS, Section 1405 of the Indenture requires any Subsidiary of the Issuer that is organized in the United States, any of the States or the District of Columbia and that was not a Lexington Credit Agreement Obligor becomes a Lexington Credit Agreement Obligor, the Issuer shall arrange for such Subsidiary to execute and deliver to the Trustee, a supplemental indenture pursuant to which such Subsidiary Guarantor shall fully, unconditionally and irrevocably guarantee, as primary obligor and not merely as surety, to each Holder of the Securities and the Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the Obligations; and
WHEREAS, the Issuer, the Guarantors and the Trustee have duly authorized the execution and delivery of this instrument to amend the Indenture as set forth herein and have done all things necessary to make this instrument a valid agreement of the parties hereto, in accordance with its terms.
NOW, THEREFORE, in consideration of the premises 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 1.1 Definitions. Capitalized terms used in this instrument and not otherwise defined herein shall have the meanings assigned to such terms in the Indenture.
ARTICLE TWO
NEW SUBSIDIARY GUARANTORS
Section 2.1 New Subsidiary Guarantors. The New Subsidiary Guarantors fully, unconditionally and irrevocably guarantee, as primary obligor and not merely as surety, to each Holder of the Securities and the Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the Obligations in accordance with the Indenture.
ARTICLE THREE
MISCELLANEOUS
Section 3.1 Relation to Original Indenture. This Fifth Supplemental Indenture supplements the Indenture, 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 Indenture, and the Securities issued thereunder shall continue in full force and effect.
Section 3.3 Effect of Headings. The Article and Section headings herein are for convenience of reference only and shall not affect the construction hereof.
Section 3.4 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 3.5 Governing Law. This instrument shall be governed by and construed in accordance with the laws of the State of New York.
[signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental Indenture to be duly executed as of the day and year first above written.
| | | | |
| | ISSUER: | |
| | | |
| | | | |
| | LEXINGTON REALTY TRUST, | |
| | as Issuer of the Notes | |
| | | | |
| | | | |
| | By: | /s/ Joseph S. Bonventre | |
| | | Name: Joseph S. Bonventre | |
| | | Title: Executive Vice President | |
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| | | | |
| | EXISTING SUBSIDARY GUARANTORS: | |
| | | |
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| | 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/ Joseph S. Bonventre | |
| | | Name: Joseph S. Bonventre | |
| | | Title: Senior 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/ Joseph S. Bonventre | |
| | | Name: Joseph S. Bonventre | |
| | | Title: Senior 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/ Joseph S. Bonventre | |
| | | Name: Joseph S. Bonventre | |
| | | Title: Senior Vice President | |
| | | | |
| | | | |
| | LEX GP-1 TRUST, | |
| | as a Subsidiary Guarantor | |
| | | | |
| | | | |
| | By: | /s/ Joseph S. Bonventre | |
| | | Name: Joseph S. Bonventre | |
| | | Title: Senior Vice President | |
| | | | |
| | | | |
| | LEX LP-1 TRUST, | |
| | as a Subsidiary Guarantor | |
| | | | |
| | | | |
| | By: | /s/ Joseph S. Bonventre | |
| | | Name: Joseph S. Bonventre | |
| | | Title: Senior Vice President | |
| | | | |
| | | | |
| | LEXINGTON OLIVE BRANCH MANAGER LLC, a Delaware limited liability company, as a Subsidiary Guarantor | |
| | | | |
| | | | |
| | By: | /s/ Joseph S. Bonventre | |
| | | Name: Joseph S. Bonventre | |
| | | Title: Senior Vice President | |
| | | | |
| | | | |
| | LEXINGTON REALTY ADVISORS, INC., a Delaware corporation, as a Subsidiary Guarantor | |
| | | | |
| | | | |
| | By: | /s/ Joseph S. Bonventre | |
| | | Name: Joseph S. Bonventre | |
| | | Title: Senior Vice President | |
| | | | |
| | | | |
| | LEXINGTON SOUTHFIELD LLC, a Delaware limited liability company, as a Subsidiary Guarantor | |
| | | | |
| | | | |
| | By: | /s/ Joseph S. Bonventre | |
| | | Name: Joseph S. Bonventre | |
| | | Title: Senior Vice President | |
| | | | |
| | | | |
| | LEXINGTON WAXAHACHIE MANAGER LLC, its sole general partner, a Delaware limited liability company, as a Subsidiary Guarantor | |
| | | | |
| | | | |
| | By: | /s/ Joseph S. Bonventre | |
| | | Name: Joseph S. Bonventre | |
| | | Title: Senior Vice President | |
| | | | |
| | | | |
| | LXP I TRUST, a Delaware statutory trust, as a Subsidiary Guarantor | |
| | | | |
| | | | |
| | By: | /s/ Joseph S. Bonventre | |
| | | Name: Joseph S. Bonventre | |
| | | Title: Senior Vice President | |
| | | | |
| | | | |
| | LEXINGTON WESTPORT MANAGER LLC, a Delaware limited liability company, as a Subsidiary Guarantor | |
| | | | |
| | | | |
| | By: | /s/ Joseph S. Bonventre | |
| | | Name: Joseph S. Bonventre | |
| | | Title: Senior Vice President | |
| | | | |
| | | | |
| | NEW SUBSIDIARY GUARANTORS: | |
| | | |
| | | |
| | LEXINGTON COLLIERVILLE MANAGER LLC, a Delaware limited liability company, as a Subsidiary Guarantor | |
| | | | |
| | | | |
| | By: | /s/ Joseph S. Bonventre | |
| | | Name: Joseph S. Bonventre | |
| | | Title: Senior Vice President | |
| | | | |
| | | | |
| | LEXINGTON DUNCAN MANAGER LLC, a Delaware limited liability company, as a Subsidiary Guarantor | |
| | | | |
| | | | |
| | By: | /s/ Joseph S. Bonventre | |
| | | Name: Joseph S. Bonventre | |
| | | Title: Senior Vice President | |
| | | | |
| | | | |
| | LEXINGTON FLORENCE MANAGER LLC, a Delaware limited liability company, as a Subsidiary Guarantor | |
| | | | |
| | | | |
| | By: | /s/ Joseph S. Bonventre | |
| | | Name: Joseph S. Bonventre | |
| | | Title: Senior Vice President | |
| | | | |
| | | | |
| | LEXINGTON FORT STREET TRUSTEE LLC, a Delaware limited liability company, as a Subsidiary Guarantor | |
| | | | |
| | | | |
| | By: | /s/ Joseph S. Bonventre | |
| | | Name: Joseph S. Bonventre | |
| | | Title: Senior Vice President | |
| | | | |
| | | | |
| | LEXINGTON HONOLULU MANAGER LLC, a Delaware limited liability company, as a Subsidiary Guarantor | |
| | | | |
| | | | |
| | By: | /s/ Joseph S. Bonventre | |
| | | Name: Joseph S. Bonventre | |
| | | Title: Senior Vice President | |
| | | | |
| | | | |
| | LEXINGTON LAC LENEXA GP LLC, a Delaware limited liability company, as a Subsidiary Guarantor | |
| | | | |
| | | | |
| | By: | /s/ Joseph S. Bonventre | |
| | | Name: Joseph S. Bonventre | |
| | | Title: Senior Vice President | |
| | | | |
| | | | |
| | LEXINGTON MLP WESTERVILLE MANAGER LLC, a Delaware limited liability company, as a Subsidiary Guarantor | |
| | | | |
| | | | |
| | By: | /s/ Joseph S. Bonventre | |
| | | Name: Joseph S. Bonventre | |
| | | Title: Senior Vice President | |
| | | | |
| | | | |
| | LEXINGTON TOY TRUSTEE LLC, a Delaware limited liability company, as a Subsidiary Guarantor | |
| | | | |
| | | | |
| | By: | /s/ Joseph S. Bonventre | |
| | | Name: Joseph S. Bonventre | |
| | | Title: Senior Vice President | |
| | | | |
| | | | |
| | LEX-PROPERTY HOLDINGS LLC, a Delaware limited liability company, as a Subsidiary Guarantor | |
| | | | |
| | | | |
| | By: | /s/ Joseph S. Bonventre | |
| | | Name: Joseph S. Bonventre | |
| | | Title: Senior Vice President | |
| | | | |
| | | | |
| | LSAC CROSSVILLE MANAGER LLC, a Delaware limited liability company, as a Subsidiary Guarantor | |
| | | | |
| | | | |
| | By: | /s/ Joseph S. Bonventre | |
| | | Name: Joseph S. Bonventre | |
| | | Title: Senior Vice President | |
| | | | |
| | | | |
| | LSAC GENERAL PARTNER LLC, a Delaware limited liability company, as a Subsidiary Guarantor | |
| | | | |
| | | | |
| | By: | /s/ Joseph S. Bonventre | |
| | | Name: Joseph S. Bonventre | |
| | | Title: Senior 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/ Joseph S. Bonventre | |
| | | Name: Joseph S. Bonventre | |
| | | Title: Senior Vice President | |
| | | | |
| | | | |
| | MLP UNIT PLEDGE GP LLC, a Delaware limited liability company, as a Subsidiary Guarantor | |
| | | | |
| | | | |
| | By: | /s/ Joseph S. Bonventre | |
| | | Name: Joseph S. Bonventre | |
| | | Title: Senior 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/ Joseph S. Bonventre | |
| | | Name: Joseph S. Bonventre | |
| | | Title: Senior Vice President | |
| | | | |
| | | | |
| | NEWKIRK 21 AT GP LLC | |
| | NEWKIRK ALTENN GP LLC | |
| | NEWKIRK AVREM GP LLC | |
| | NEWKIRK BASOT GP LLC | |
| | NEWKIRK BEDCAR GP LLC | |
| | NEWKIRK CAROLION GP LLC | |
| | NEWKIRK CLIFMAR GP LLC | |
| | NEWKIRK DALHILL GP LLC | |
| | NEWKIRK ELWAY GP LLC | |
| | NEWKIRK GERSANT GP LLC | |
| | NEWKIRK JACWAY GP LLC | |
| | NEWKIRK JLE WAY GP LLC | |
| | NEWKIRK JOHAB GP LLC | |
| | NEWKIRK LANMAR GP LLC | |
| | NEWKIRK LIROC GP LLC | |
| | NEWKIRK ORPER GP LLC | |
| | NEWKIRK SABLEMART GP LLC | |
| | NEWKIRK SALISTOWN GP LLC | |
| | NEWKIRK SEGUINE GP LLC | |
| | NEWKIRK SPOKMONT GP LLC | |
| | NEWKIRK STATMONT GP LLC | |
| | NEWKIRK SUNWAY GP LLC | |
| | NEWKIRK SUPERWEST GP LLC | |
| | NEWKIRK WALANDO GP LLC | |
| | NEWKIRK WASHTEX GP LLC | |
| | NK-CINN HAMILTON PROPERTY MANAGER LLC |
| | NK-LUMBERTON PROPERTY MANAGER LLC |
| | NK-ODW/COLUMBUS PROPERTY MANAGER LLC |
| | LEX GP HOLDING LLC | |
| | NEWKIRK MLP UNIT LLC | |
| | Each, a Delaware limited liability company | |
| | | | |
| | By: | MLP Manager Corp., their Manager | |
| | | | |
| | | | |
| | By: | /s/ Joseph S. Bonventre | |
| | | Name: Joseph S. Bonventre | |
| | | Title: Senior Vice President | |
| | | | |
| | | | |
| | TRUSTEE: | |
| | | |
| | | |
| | U.S. BANK NATIONAL ASSOCIATION, | |
| | as Trustee | |
| | | | |
| | | | |
| | By: | /s/ William G. Keenan | |
| | | Name: William G. Keenan | |
| | | Title: Vice President | |
Exhibit A
Released Subsidiary Guarantors
| Lexington BCBS L.L.C. |
| Lexington Carrollton Manager LLC |
| Lexington Chelmsford Manager LLC |
| Lexington Contributions Inc. |
| Lexington Dover LLC |
| Lexington Fort Street Trust |
| Lexington Foxboro I LLC |
| Lexington Foxboro II LLC |
| Lexington High Point Manager LLC |
| Lexington Los Angeles Manager LLC |
| Lexington Millington Manager LLC |
| Lexington Minneapolis LLC |
| Lexington Multi-State Holdings L.P. |
| Lexington OC LLC |
| Lexington Olive Branch LLC |
| Lexington Tennessee Holdings L.P. |
| Lexington Texas Holdings L.P. |
| Lexington TIC OK Holdings L.P. |
| Lexington Toys II Trust |
| Lexington Wallingford Manager LLC |
| Lexington Waxahachie L.P. |
| LXP GP, LLC |
| LXP I, L.P. |
| LXP II, L.P. |
| LXP ISS Holdings L.P. |
| LXP Memorial L.L.C. |
| LXP Realty Income Fund L.P. |
| Phoenix Hotel Associates Limited Partnership |
| Savannah Waterfront Hotel LLC |
| Union Hills Associates |
| Union Hills Associates II |
| Lexington Collierville L.P. |
| Lexington Collierville Manager LLC |
| Lexington Sugarland Manager LLC |
| Lexington Euro Holdings LTD. |
| LXP Advisory LLC |
| Westport View Corporate Center L.P. |
Exhibit B
Existing Subsidiary Guarantors
| Lepercq Corporate Income Fund L.P. |
| Lepercq Corporate Income Fund II L.P. |
| Net 3 Acquisition L.P. |
| Lex GP-1 Trust |
| Lex LP-1 Trust |
| Lexington Olive Branch Manager LLC |
| Lexington Realty Advisors, Inc. |
| Lexington Southfield LLC |
| Lexington Waxahachie Manager LLC |
| LXP I Trust |
| Lexington Westport Manager LLC |
Exhibit C
New Subsidiary Guarantors
| Lex GP Holding LLC |
| Lexington Collierville Manager LLC |
| Lexington Duncan Manager LLC |
| Lexington Florence Manager LLC |
| Lexington Fort Street Trustee LLC |
| Lexington Honolulu Manager LLC |
| Lexington LAC Lenexa GP LLC |
| Lexington MLP Westerville Manager LLC |
| Lexington Toy Trustee LLC |
| Lex-Property Holdings LLC |
| LSAC Crossville Manager LLC |
| LSAC General Partner LLC |
| LSAC Operating Partnership L.P. |
| MLP Unit Pledge GP LLC |
| MLP Unit Pledge L.P. |
| Newkirk 21AT GP LLC |
| Newkirk Altenn GP LLC |
| Newkirk Avrem GP LLC |
| Newkirk Basot GP LLC |
| Newkirk Bedcar GP LLC |
| Newkirk Carolion GP LLC |
| Newkirk Clifmar GP LLC |
| Newkirk Dahill GP LLC |
| Newkirk Elway GP LLC |
| Newkirk Gersant GP LLC |
| Newkirk Jacaway GP LLC |
| Newkirk JLE WAY GP LLC |
| Newkirk Johab GP LLC |
| Newkirk Lanmar GP LLC |
| Newkirk Liroc GP LLC |
| Newkirk MLP Unit LLC |
| Newkirk Orper GP LLC |
| Newkirk Sablemark GP LLC |
| Newkirk Salistown GP LLC |
| Newkirk Seguine GP LLC |
| Newkirk Statmont GP LLC |
| Newkirk Sunway GP LLC |
| Newkirk Superwest GP LLC |
| Newkirk Walando GP LLC |
| Newkirk Washtex GP LLC |
| NK-Cinn Hamilton Property Manager LLC |
