April
17, 2009
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23062.68339
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Securities
and Exchange Commission
Division
of Corporation Finance
Mail Stop
4561
450 Fifth
Street, N.W.
Washington,
D.C. 20549
Attention: Tom
Kluck, Branch Chief
Re:
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Lexington
Realty Trust
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Registration
Statement on Form S-3
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Dear Mr.
Kluck:
This
letter sets forth the response of Lexington Realty Trust (the “Trust”) to the
Staff’s comment letter dated March 27, 2009 in connection with the Staff’s
review of the above-referenced Registration Statement. Capitalized
terms used herein and not otherwise defined have the meanings specified in the
Registration Statement. For your convenience, we have repeated the comment prior
to our response.
1.
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We
note your correspondence of March 11, 2009 and that your registration
statement incorporates by reference your Form 10-K for fiscal year ended
December 31, 2008 that was filed on March 2, 2009. As noted in
your correspondence, your 10-K incorporates by reference Part III
information from your definitive proxy statement, which has not yet been
filed. Please note that the definitive proxy statement must be
filed prior to effectiveness of the registration
statement. Please refer to Securities Act Forms, Compliance and
Disclosure Interpretation Question 123.01, which can be found on our
website, for guidance.
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The Trust
respectfully advises that its correspondence to the Staff preceding the
Registration Statement stated that it “will not request acceleration of
effectiveness of the Registration Statement until the Trust has filed the Part
III information that will be incorporated by reference into its Annual Report on
Form-10-K for the year ended December 31, 2008, which was filed on March 2,
2009.” On April 6, 2009, the Trust filed its Definitive Proxy
Statement on Schedule 14A, which contained the Part III information.
Accordingly, the Registration Statement now contains a complete Section 10(a)
prospectus in accordance with Securities Act Forms Compliance and Disclosure
Interpretation Question 123.01 prior to the time it is declared effective by the
Staff.
Securities
and Exchange Commission
April 17,
2009
Page
2
2.
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We
note your disclosure in the “Calculation of Registration Fee” section that
you are relying upon Rule 415(a)(6) of Regulation C for this
offering. Please explain to us why you believe that you are
eligible to rely upon Rule 415(a)(6). Please refer to
Securities Act Rules, Compliance and Disclosures Interpretation Questions
198.03 and 198.06.
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In
accordance with Securities Act Forms Compliance and Disclosure Interpretation
Question 198.06, the Trust believes the following two requirements have been met
as noted below:
(1) Prior
to filing the Form 10-K, the issuer must file a post-effective amendment to the
automatic shelf registration statement (on EDGAR submission type POSASR) to
register a specific amount of securities and to pay the associated filing
fee.
The Trust
received oral guidance from the Staff stating that an issuer did not need to
file a post-effective amendment prior to filing its Form 10-K but could still
avail itself of the provisions of Rule 415(a)(6) upon the loss of well-known
seasoned issuer status, if the issuer’s automatic shelf registration statement
contained all the information required to be included on Form S-3 (i.e. (i) did
not omit information pursuant to Rule 430B; (ii) paid the filing fee up front;
and (iii) set forth the amount of securities to be offered). The
Trust’s automatic shelf registration statements (File Nos. 333-131347,
333-151321, 333-138774, 333-140073, 333-151319, 333-155586), when filed,
contained all the information required to be included on Form S-3, paid the full
filing fee at the time of filing, and set forth the amount of securities to be
offered.
(2) The
prospectus included in the post-effective amendment to the automatic shelf
registration statement may not omit information in reliance on provisions of
Rule 430B that are available only to automatic shelf registration statements and
instead must contain all information required to be included in a Form S-3 filed
in reliance on General Instruction I.B.1 or I.B.2.
Securities
and Exchange Commission
April 17,
2009
Page
3
As stated
above, the Trust’s automatic shelf registration statements included all the
information required to be included on Form S-3 and did not omit information in
reliance on Rule 430B, and accordingly, the Trust was not required to file
post-effective amendments prior to filing its Form 10-K.
Further
in accordance with Securities Act Forms Compliance and Disclosure Interpretation
Question 198.06, the Trust promptly filed the Registration Statement after
filing its Form 10-K.
We would
greatly appreciate your prompt attention in resolving any remaining open
issues. If you have any questions regarding the responses to the
Staff’s comments, please call the undersigned at (212) 318-6859.
Kindly
acknowledge receipt of the foregoing responses by stamping the enclosed
additional copy of this letter and returning the same to the
undersigned.
Sincerely,
/s/Mark
Schonberger
Mark
Schonberger
of PAUL,
HASTINGS, JANOFSKY & WALKER LLP
cc:
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Erin
Martin, Attorney-Advisor, Securities and Exchange
Commission
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Joseph
Bonventre, Esq., General Counsel, Lexington Realty
Trust
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