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:
