Maryland
|
13-3717318
|
|
(State
of Organization)
|
(I.R.S.
Employer Identification No.)
|
|
One
Penn Plaza, Suite 4015
New
York, NY 10019
(212)
692-7000
|
||
(Address,
including zip code, and telephone number, including area code, of
registrant’s principal executive offices)
|
||
T.
Wilson Eglin
President
and Chief Executive Officer
One
Penn Plaza, Suite 4015
New
York, NY 10119-4015
(212)
692-7200
|
||
(Name,
address, including zip code, and telephone number, including area code, of
agent for service):
|
||
Copies
to:
|
||
Mark
Schonberger, Esq.
Paul,
Hastings, Janofsky & Walker LLP
75
East 55th Street
New
York, NY 10022
(212)
318-6000
|
||
Title
of each class of securities
to
be registered
|
Amount
to be registered
|
Proposed
maximum offering price per share (1)
|
Proposed
maximum aggregate offering price (3)
|
Amount
of registration Fee (3)
|
||||
Common
shares of beneficial interest classified as common stock, par value $.0001
per share
|
17,823,195
shares (2)
|
$4.815
|
$85,818,683.93
|
$4,789
|
(1)
|
Estimated
pursuant to Rule 457(c) under the Securities Act solely for the purpose of
calculating the registration fee based upon the average of the high and
low reported sale prices of the common shares on The New York Stock
Exchange on August 31, 2009.
|
(2)
|
Estimated
pursuant to Rule 457(c) under the Securities Act solely for the purpose of
calculating the registration fee to be paid. Represents the
number of common shares that would be issuable upon exchange of the
initial issuance amount 5.45% Exchangeable Guaranteed Notes due 2027 at
the initial exchange rate of 39.6071 common shares per $1,000 principal
amount of the notes (it being understood that the Registrant is only
entitled to issue common shares with respect to the exchange value that is
in excess of $1,000 per note). Pursuant to Rule 416 under the
Securities Act, this Registration Statement also covers such number of
additional securities as may be issued to prevent dilution from stock
splits, stock dividends or similar
transactions.
|
(3)
|
In
accordance with Rule 415(a)(6) under the Securities Act, the registrant is
including 17,823,195 shares of beneficial interest, classified as common
stock, unsold on its Registration Statement on Form S-3 (No. 333-142820)
filed on May 10, 2007, which represents the entire registration fee of
$4,789.
|
ABOUT
THIS PROSPECTUS
|
1
|
CAUTIONARY
STATEMENTS CONCERNING FORWARD-LOOKING INFORMATION
|
1
|
OUR
COMPANY
|
2
|
RISK
FACTORS
|
2
|
USE
OF PROCEEDS
|
2
|
DESCRIPTION
OF COMMON SHARES
|
3
|
CERTAIN
PROVISIONS OF MARYLAND LAW AND OF OUR DECLARATION OF TRUST AND
BYLAWS
|
4
|
FEDERAL
INCOME TAX CONSIDERATIONS
|
7
|
SELLING
SHAREHOLDERS
|
21
|
PLAN
OF DISTRIBUTION
|
27
|
EXPERTS
|
29
|
LEGAL
MATTERS
|
29
|
WHERE
YOU CAN FIND MORE INFORMATION
|
29
|
·
|
changes
in general business and economic
conditions;
|
·
|
competition;
|
·
|
increases
in real estate construction costs;
|
·
|
changes
in interest rates;
|
·
|
changes
in accessibility of debt and equity capital markets;
and
|
·
|
the
other risk factors set forth in our Annual Report on Form 10-K filed on
March 2, 2009, and in any other documents incorporated by reference in
this prospectus, including without limitation any updated risks included
in our subsequent periodic reports.
|
·
|
any
person who beneficially owns ten percent or more of the voting power of
the trust’s shares; or
|
·
|
an
affiliate or associate of the trust who, at any time within the two-year
period prior to the date in question, was the beneficial owner of ten
percent or more of the voting power of the then outstanding voting shares
of the trust.
|
·
|
eighty
percent of the votes entitled to be cast by holders of outstanding voting
shares of the trust; and
|
·
|
two-thirds
of the votes entitled to be cast by holders of voting shares of the trust
other than shares held by the interested shareholder with whom or with
whose affiliate the business combination is to be effected or held by an
affiliate or associate of the interested
shareholder.
|
·
|
one-tenth
or more but less than one-third;
|
·
|
one-third
or more but less than a majority;
or
|
·
|
a
majority or more of all voting
power.
|
·
|
officers
or employees of the Maryland REIT;
|
·
|
persons
seeking to acquire control of the Maryland
REIT;
|
·
|
trustees,
officers, affiliates or associates of any person seeking to acquire
control; or
|
·
|
nominated
or designated as trustees by a person seeking to acquire
control.
|
·
|
First,
we will be taxed at regular corporate rates on any undistributed REIT
taxable income, including undistributed net capital
gains.
|
·
|
Second,
under certain circumstances, we may be subject to the “alternative minimum
tax” on our items of tax
preference.
|
·
|
Third,
if we have (a) net income from the sale or other disposition of
“foreclosure property,” which is, in general, property acquired on
foreclosure or otherwise on default on a loan secured by such real
property or a lease of such property, which is held primarily for sale to
customers in the ordinary course of business or (b) other nonqualifying
income from foreclosure property, we will be subject to tax at the highest
corporate rate on such income.
|
·
|
Fourth,
if we have net income from prohibited transactions such income will be
subject to a 100% tax. Prohibited transactions are, in general, certain
sales or other dispositions of property held primarily for sale to
customers in the ordinary course of business other than foreclosure
property.
|
·
|
Fifth,
if we should fail to satisfy the 75% gross income test or the 95% gross
income test (as discussed below), but nonetheless maintain our
qualification as a REIT because certain other requirements have been met,
we will be subject to a 100% tax on an amount equal to (a) the gross
income attributable to the greater of the amount by which we fail the 75%
gross income test or the amount by which 95% (90% for taxable years ending
on or prior to December 31, 2004) of our gross income exceeds the amount
of income qualifying under the 95% gross income test multiplied by (b) a
fraction intended to reflect our
profitability.
|
·
|
Sixth,
if we should fail to satisfy the asset tests (as discussed below) but
nonetheless maintain our qualification as a REIT because certain other
requirements have been met and we do not qualify for a de minimis
exception, we may be subject to a tax that would be the greater of (a)
$50,000; or (b) an amount determined by multiplying the highest rate of
tax for corporations by the net income generated by the assets for the
period beginning on the first date of the failure and ending on the day we
dispose of the nonqualifying assets (or otherwise satisfy the requirements
for maintaining REIT
qualification).
|
·
|
Seventh,
if we should fail to satisfy one or more requirements for REIT
qualification, other than the 95% and 75% gross income tests and other
than the asset tests, but nonetheless maintain our qualification as a REIT
because certain other requirements have been met, we may be subject to a
$50,000 penalty for each failure.
|
·
|
Eighth,
if we should fail to distribute during each calendar year at least the sum
of (a) 85% of our REIT ordinary income for such year, (b) 95% of our REIT
capital gain net income for such year, and (c) any undistributed taxable
income from prior periods, we would be subject to a nondeductible 4%
excise tax on the excess of such required distribution over the amounts
actually distributed.
|
·
|
Ninth,
if we acquire any asset from a C corporation (i.e., a corporation
generally subject to full corporate level tax) in a transaction in which
the basis of the asset in our hands is determined by reference to the
basis of the asset (or any other property) in the hands of the C
corporation and we do not elect to be taxed at the time of the
acquisition, we would be subject to tax at the highest corporate rate if
we dispose of such asset during the ten-year period beginning on the date
that we acquired that asset, to the extent of such property’s “built-in
gain” (the excess of the fair market value of such property at the time of
our acquisition over the adjusted basis of such property at such time) (we
refer to this tax as the “Built-in Gains
Tax”).
|
·
|
Tenth,
we will incur a 100% excise tax on transactions with a taxable REIT
subsidiary that are not conducted on an arm’s-length
basis.
|
·
|
Finally,
if we own a residual interest in a real estate mortgage investment
conduit, or “REMIC,” we will be taxable at the highest corporate rate on
the portion of any excess inclusion income that we derive from the REMIC
residual interests equal to the percentage of our shares that is held in
record name by “disqualified organizations.” Similar rules apply if we own
an equity interest in a taxable mortgage pool. A “disqualified
organization” includes the United States, any state or political
subdivision thereof, any foreign government or international organization,
any agency or instrumentality of any of the foregoing, any rural
electrical or telephone cooperative and any tax-exempt organization (other
than a farmer’s cooperative described in Section 521 of the Code) that is
exempt from income taxation and from the unrelated business taxable income
provisions of the Code. However, to the extent that we own a REMIC
residual interest or a taxable mortgage pool through a taxable REIT
subsidiary, we will not be subject to this tax. See the heading
“Requirements for Qualification”
below.
|
·
|
substantially
all of the assets consist of debt obligations or interests in debt
obligations;
|
·
|
more
than 50% of those debt obligations are real estate mortgage loans or
interests in real estate mortgage loans as of specified testing
dates;
|
·
|
the
entity has issued debt obligations that have two or more maturities;
and
|
·
|
the
payments required to be made by the entity on its debt obligations “bear a
relationship” to the payments to be received by the entity on the debt
obligations that it holds as
assets.
|
Selling Shareholder
|
Number of Shares
Beneficially Owned Prior
to the Offering(1)(2) |
Percentage of
Shares Beneficially Owned Prior to the Offering(3) |
Number of Shares
Offered Pursuant to this Prospectus |
Number of Shares
Beneficially Owned After the Offering(4) |
Percentage of Shares
Beneficially Owned
After the Offering(3) |
|||||||||||||||
Admiral
Flagship Master Fund, Ltd.
|
74,502 | * | 74,502 | 0 | * | |||||||||||||||
Advent
Enhanced Phoenix Fund(5)
|
149,004 | * | 149,004 | 0 | * | |||||||||||||||
Akanthos
Arbitrage Master Fund, L.P.(6)
|
3,725,107 | 3.16 | % | 3,725,107 | 0 | * | ||||||||||||||
Argent
Classic Convertible Arbitrage Fund II, L.P. (7)
|
2,930 | * | 2,930 | 0 | * | |||||||||||||||
Argent
Classic Convertible Arbitrage Fund L.P. (7)
|
118,210 | * | 118,210 | 0 | * | |||||||||||||||
Argent
Classic Convertible Arbitrage Fund Ltd. (7)
|
1,105,214 | * | 1,105,214 | 0 | * | |||||||||||||||
Argent
LowLev Convertible Arbitrage Fund II, LLC (7)
|
5,463 | * | 5,463 | 0 | * | |||||||||||||||
Argent
LowLev Convertible Arbitrage Fund Ltd. (7)
|
354,133 | * | 354,133 | 0 | * | |||||||||||||||
Argentum
Multi-Strategy Fund, LLC (7)
|
6,456 | * | 6,456 | 0 | * | |||||||||||||||
Argentum
Multi-Strategy Fund Ltd - Classic (7)
|
19,867 | * | 19,867 | 0 | * | |||||||||||||||
Barclays
Capital Securities Limited
|
620,851 | * | 620,851 | 0 | * | |||||||||||||||
Bayerische
Hypo-und Vereinsbank AG(8)
|
1,390,706 | 1.20 | % | 1,390,706 | 0 | * | ||||||||||||||
Bear,
Stearns & Co. Inc.(9)
|
471,846 | * | 471,846 | 0 | * | |||||||||||||||
Black
Diamond Convertible Offshore LDC(10)
|
49,668 | * | 49,668 | 0 | * | |||||||||||||||
Black
Diamond Offshore Ltd.(10)
|
21,853 | * | 21,853 | 0 | * | |||||||||||||||
BMO
Nesbitt Burns Inc.(11)
|
273,174 | * | 273,174 | 0 | * | |||||||||||||||
Canyon
Capital Arbitrage Master Fund, Ltd. (12)
|
161,669 | * | 161,669 | 0 | * | |||||||||||||||
Canyon
Value Realization Fund, L.P. (13)
|
57,118 | * | 57,118 | 0 | * | |||||||||||||||
Canyon
Value Realization MAC 18, Ltd. (14)
|
45,446 | * | 45,446 | 0 | * | |||||||||||||||
CC
Arbitrage, Ltd.(15)
|
422,178 | * | 422,178 | 0 | * | |||||||||||||||
Classic
C Trading Company, Ltd. (7)
|
244,367 | * | 244,367 | 0 | * | |||||||||||||||
CQS
Convertible and Quantitative Strategies Master Fund Limited
(15A)
|
397,344 | * | 397,344 | 0 | * | |||||||||||||||
CSS,
LLC(16)
|
49,668 | * | 49,668 | 0 | * | |||||||||||||||
DBAG
London(17)
|
3,357,563 | 2.85 | % | 3,357,563 | 0 | * | ||||||||||||||
Deutsche
Bank Securities Inc.(18)
|
149,004 | * | 149,004 | 0 | * | |||||||||||||||
Double
Black Diamond Offshore LDC(10)
|
176,818 | * | 176,818 | 0 | * | |||||||||||||||
Elite
Classic Convertible Arbitrage Ltd. (7)
|
64,568 | * | 64,568 | 0 | * | |||||||||||||||
HFR
CA Select Master Trust Account(7)
|
100,826 | * | 100,826 | 0 | * | |||||||||||||||
HFR
CA Select Master Trust Fund(19)
|
49,668 | * | 49,668 | 0 | * | |||||||||||||||
Highbridge
Convertible Arbitrage Master Fund LP(20)
|
382,444 | * | 382,444 | 0 | * | |||||||||||||||
Highbridge
International LLC(21)
|
2,483,405 | 2.13 | % | 2,483,405 | 0 | * | ||||||||||||||
ICVC
Global Balanced Distribution Bonds(22)
|
49,668 | * | 49,668 | 0 | * | |||||||||||||||
Institutional
Benchmarks Series (Master Feeder, Ltd.)(19)
|
94,369 | * | 94,369 | 0 | * | |||||||||||||||
Jefferies
Umbrella Global Convertible Bond(23)
|
481,780 | * | 481,780 | 0 | * | |||||||||||||||
JMG
Capital Partners, L.P. (24)
|
397,344 | * | 397,344 | 0 | * | |||||||||||||||
JMG
Triton Offshore Fund, Ltd.(25)
|
223,506 | * | 223,506 | 0 | * | |||||||||||||||
JP
Morgan Securities Inc. (26)
|
2,235,064 | 1.92 | % | 2,235,064 | 91 | * | ||||||||||||||
Kamunting
Street Master Fund Ltd.(27)
|
496,681 | * | 496,681 | 0 | * | |||||||||||||||
Lehman
Brothers, Inc.(28)
|
223,506 | * | 223,506 | 0 | * | |||||||||||||||
Lyxor
Master Fund Ref: Argent/LowLev CB c/o Argent (7)
|
104,303 | * | 104,303 | 0 | * | |||||||||||||||
Lyxor/Canyon
Capital Arbitrage Fund Limited (29)
|
45,446 | * | 45,446 | 0 | * | |||||||||||||||
Lyxor/Canyon
Value Realization Fund Limited (30)
|
74,502 | * | 74,502 | 0 | * | |||||||||||||||
Millenium
Partners, L.P.(31)
|
248,340 | * | 248,340 | 0 | * | |||||||||||||||
National
Bank of Canada - Tenor(32)
|
24,834 | * | 24,834 | 0 | * | |||||||||||||||
Partners
Group Alternative Strategies PCC Ltd (7)
|
234,433 | * | 234,433 | 0 | * | |||||||||||||||
PNC
Equity Securities LLC(33)
|
149,004 | * | 149,004 | 0 | * | |||||||||||||||
Polygon
Global Opportunities Master Fund(34)
|
432,658 | * | 432,658 | 0 | * | |||||||||||||||
Redbrick
Capital Master Fund Ltd.(35)
|
372,510 | * | 372,510 | 0 | * | |||||||||||||||
Reflex
Master Portfolio Ltd (36)
|
124,170 | * | 124,170 | 0 | * | |||||||||||||||
Royal
Bank of Canada(37)
|
496,681 | * | 496,681 | 0 | * | |||||||||||||||
S.A.C.
Arbitrage Fund, LLC(38)
|
496,681 | * | 496,681 | 0 | * | |||||||||||||||
Sailfish
Multi-Strategy Fixed Income Master Fund (G2), Ltd.(39)
|
248,340 | * | 248,340 | 0 | * | |||||||||||||||
San
Diego County Employees Retirement Association(19)
|
104,303 | * | 104,303 | 0 | * | |||||||||||||||
Sanno
Point Master Fund Ltd.(40)
|
620,851 | * | 620,851 | 0 | * | |||||||||||||||
Tenor
Opportunity Master Fund, Ltd.(32)
|
223,506 | * | 223,506 | 0 | * | |||||||||||||||
The
Canyon Value Realization Fund (Cayman), Ltd. (41)
|
147,514 | * | 147,514 | 0 | * | |||||||||||||||
Topaz
Fund(42)
|
496,681 | * | 496,681 | 0 | * | |||||||||||||||
Universal
Investment Gesellschaft REF Aventis (43)
|
248,340 | * | 248,340 | 0 | * | |||||||||||||||
Vicis
Capital Master Fund(19)
|
372,510 | * | 372,510 | 0 | * | |||||||||||||||
Wachovia
Securities International Ltd. (44)
|
248,340 | * | 248,340 | 0 | * | |||||||||||||||
Xavex
Convertible Arbitrage 2 Fund (7)
|
50,164 | * | 50,164 | 0 | * | |||||||||||||||
Xavex
Convertible Arbitrage 10 Fund (7)
|
157,447 | * | 157,447 | 0 | * | |||||||||||||||
Zazove
Convertible Arbitrage Fund, L.P.(19)
|
218,539 | * | 218,539 | 0 | * | |||||||||||||||
Zazove
Hedged Convertible Fund, L.P.(19)
|
208,606 | * | 208,606 | 0 | * | |||||||||||||||
Zurich
Institutional Funds Wandelanleihen Global(45)
|
139,070 | * | 139,070 | 0 | * | |||||||||||||||
TOTAL(46)
|
17,823,195 | 13.49 | % | 17,823,195 | 0 | * |
*
|
Less
than one percent.
|
(1)
|
Based
on information available to us as of August 28, 2009 in Selling Security
Holder Notice and Questionnaires delivered by the selling
shareholders.
|
(2)
|
The
number of common shares issuable upon the exchange or redemption of the
notes, except for the total, assumes exchange of the full amount of
notes held by each selling shareholder at the current exchange rate
of 49.6681 common shares per $1,000 principal amount of notes and a
cash payment in lieu of any fractional share, even though we are required
to pay the first $1,000 of exchange value in cash. The exchange rate is
subject to adjustment in certain events.
|
(3)
|
Based
on a total of 114,255,649 of our common shares outstanding as of
August 28, 2009. For purposes of computing the percentage of outstanding
shares held by each selling shareholder named above, the common shares
beneficially owned by such selling shareholders are deemed to be
outstanding, but such shares are not deemed to be outstanding for the
purpose of computing the percentage of ownership of any other selling
shareholder.
|
(4)
|
Assumes
the selling shareholder sells all of its common shares offered pursuant to
this prospectus.
|
(5)
|
Desmond
Singh exercises voting and/or dispositive powers with respect to these
securities.
|
(6)
|
Akanthos
Capital Management, LLC and Michael Kao exercise voting and/or dispositive
powers with respect to these securities.
|
(7)
|
Nathanial
Brown and Robert Richardson exercise voting and/or dispositive powers with
respect to these securities.
|
(8)
|
Carsten
Richter has voting and dispositive power over the notes held by Bayerische
Hypo-und Vereinsbank AG, which as reported currently having, or previously
having, an open short position in our common shares.
|
(9)
|
Michael Lloyd,
Senior Managing Director, exercises voting and/or dispositive powers with
respect to these securities. In December 2004 and January 2005, Bear
Stearns & Co. served as sole lead manager for public offerings of our
$155,000,000 liquidation preference 6.50% Series C Cumulative Convertible
Preferred Stock (“Series C Preferred Shares”). In January and March 2007,
Bear Stearns & Co. served as joint book-running manager for our
private offerings of an aggregate $450,000,000 original principal amount
of the notes. Bear Stearns & Co. and its affiliates have performed
various financial advisory and investment banking services for us from
time to time. Bear Stearns & Co. and its affiliates have received
customary fees and commissions for these transactions. An affiliate of
Bear, Stearns & Co. is a party to a master repurchase agreement with a
subsidiary of Concord Debt Holdings LLC, the Lexington Master Limited
Partnership’s joint venture with Winthrop Realty Trust. Bear Stearns &
Co. has reported (i) a short position in our common shares of 203,300 as
of September 5, 2007 and (ii) a short position in our 7.55% Series D
Cumulative Redeemable Preferred Stock of 81,300 shares as of September 5,
2007. As of August 14, 2007, an affiliate of Bear Stearns & Co. held
an additional $9,500,000 original principal 5.45% Exchangeable Guaranteed
Notes due 2027. Carl D. Glickman, a former independent director of The
Bear Stearns Companies, is Lead Trustee and the Chairman of the Executive
Committee of our Board of Trustees.
|
(10)
|
Clint
D. Carlson exercises voting and/or dispositive powers with respect to
these securities.
|
(11)
|
Stephen
Church exercises voting and/or dispositive powers with respect to these
securities. The selling shareholder is an underwriter.
|
(12)
|
Canyon
Capital Advisors LLC is the investment advisor for Canyon Capital
Arbitrage Master Fund, Ltd. and has the power to direct investments by
Canyon Capital Arbitrage Master Fund, Ltd. The managing
partners of Canyon Capital Advisors LLC are Joshua S. Friedman, Mitchell
R. Julis, and K. Robert Turner. Canyon Capital Arbitrage Master
Fund, Ltd. is an Exempted Company incorporated in the Cayman Islands with
limited liability.
|
(13)
|
The
general partner of Canyon Value Realization Fund, L.P. is Canpartners
Investments III, L.P. and as such has the voting power. (The
general partner of Canpartners Investments III, L.P. is Canyon Capital
Advisors LLC.) Canyon Capital Advisors LLC is the investment advisor for
Canyon Value Realization Fund, L.P. and as such, has the power to direct
investments by Canyon Capital Arbitrage Master Fund, Ltd. The
managing partners of Canyon Capital Advisors LLC are Joshua S. Friedman,
Mitchell R. Julis, and K. Robert Turner. Canyon Value Realization Fund,
L.P. is a limited partnership formed in Delaware.
|
(14)
|
Canyon
Capital Advisors LLC is the investment advisor for Canyon Value
Realization MAC 18, Ltd. and as such, has the power to direct investments
by Canyon Value Realization MAC 18, Ltd. The managing partners
of Canyon Capital Advisors LLC are Joshua S. Friedman, Mitchell R. Julis,
and K. Robert Turner. Canyon Value Realization MAC 18, Ltd. is an Exempted
Company incorporated in the Cayman Islands with limited
liability.
|
(15)
|
As
investment manager under a management agreement, Castle Creek Arbitrage
LLC may exercise dispositive and voting power with respect to the common
shares owned by CC Arbitrage, Ltd. Castle Creek Arbitrage LLC disclaims
beneficial ownership of such common shares. Daniel Asher and Allan Weine
are the managing members of Castle Creek Arbitrage LLC. Messrs. Asher and
Weine disclaim beneficial ownership of the common shares owned by CC
Arbitrage Ltd. The selling shareholder is an “affiliate” of a
broker-dealer and certifies that it bought the securities in the ordinary
course of business, and at the time of the purchase of the securities to
be resold, it had no agreements or understandings, directly or indirectly,
with any person to distribute the securities.
|
(15A)
|
Dennis Hunter, Karla Bodden, Jane Flemming, Alan Smith, Jonathan Crowther and Gary Gladstein, as directors, exercise voting and/or dispositive powers with respect to these securities. |
(16)
|
Nicholas
D. Schoewe and Clayton A. Strave exercise voting and/or dispositive powers
with respect to these securities.
|
(17)
|
The
selling shareholder is an “affiliate” of a broker-dealer and certifies
that it bought the securities in the ordinary course of business, and at
the time of the purchase of the securities to be resold, it had no
agreements or understandings, directly or indirectly, with any person to
distribute the securities. Does not include 3,043,899 common shares held
by Deutsche Bank AG (based on a Schedule 13G/A filed with the SEC on April
9, 2007). The selling shareholder disclaims beneficial ownership of the
common shares held by Deutsche Bank AG.
|
(18)
|
The
selling shareholder is an underwriter. Does not include 3,043,899 common
shares held by Deutsche Bank AG (based on a Schedule 13G/A filed with the
SEC on April 9, 2007). The selling shareholder disclaims beneficial
ownership of the common shares held by Deutsche Bank
AG.
|
(19)
|
Gene
Pretti exercises voting and/or dispositive powers with respect to these
securities.
|
(20)
|
Highbridge
Capital Management, LLC is the trading manager of Highbridge Convertible
Arbitrage Master Fund, L.P. and has voting control and investment
discretion over the securities held by Highbridge Convertible Arbitrage
Master Fund, L.P. Glenn Dubin and Henry Swieca control Highbridge Capital
Management, LLC and have voting control and investment discretion over the
securities held by Highbridge Convertible Master Fund, L.P. Each of
Highbridge Capital Management, LLC, Glenn Dubin and Henry Swieca disclaims
beneficial ownership of the securities held by Highbridge Arbitrage Master
Fund, L.P.
|
(21)
|
Highbridge
Capital Management, LLC is the trading manager of Highbridge International
LLC and has voting control and investment discretion over the securities
held by Highbridge International LLC. Glenn Dubin and Henry Swieca control
Highbridge Capital Management, LLC and have voting control and investment
discretion over the securities held by Highbridge International LLC. Each
of Highbridge Capital Management, LLC, Glenn Dubin and Henry Swieca
disclaims beneficial ownership of the securities held by Highbridge
International LLC.
|
(22)
|
David
Clott exercises voting and/or dispositive powers with respect to these
securities.
|
(23)
|
Autandil
Gigineishuili exercises voting and/or dispositive power with respect to
these securities.
|
(24)
|
JMG
Capital Partners, L.P. (“JMG Partners”) is a California limited
partnership. Its general partner is JMG Capital Management, LLC
(the “Manager”), a Delaware limited liability company and an investment
adviser that has voting and dispositive power of JMG Partners’
investments, including the shares beneficially owned prior to the
offering. The equity interests of the Manager are owned by JMG
Capital Management, Inc. (“JMG Capital”) a California corporation, and
Asset Alliance Holding Corp., a Delaware corporation. Jonathan
M. Glaser is the Executive Officer and Director of JMG Capital and has
sole investment discretion over JMG Partners’ portfolio
holdings. JMG Capital Partners has reported currently having,
or previously having, an open short position in our common
shares.
|
(25)
|
JMG
Triton Offshore Fund, Ltd. (the “Fund”) is an international business
company organized under the laws of the British Virgin
Islands. The Fund’s investment manager is Pacific Assets
Management LLC, a Delaware limited liability Company (the “Manager”) that
has voting and dispositive power over the Fund’s investments, including
the shares set forth above. The equity interests of the Manager
are owned by Pacific Capital Management, Inc., a California corporation
(“Pacific”) and Asset Alliance Holding Corp., a Delaware
corporation. The equity interests of Pacific are owned by
Messrs. Roger Richter, Jonathan M. Glaser and Daniel A.
David. Messrs. Glaser and Richter have sole investment
discretion over the Fund’s portfolio holdings. The Fund has
reported currently having, or previously having, an open short position in
our common shares.
|
(26)
|
JP
Morgan Securities Inc. is a wholly-owned subsidiary of JPMorgan Chase
& Co. JP Morgan Securities Inc. owns 91 of our common
shares and has reported currently having, or previously having, an open
short position in our common shares.
|
(27)
|
Allan
Teh exercises voting and/or dispositive powers with respect to these
securities.
|
(28)
|
Lehman
Brothers, Inc. was a publicly held company. In January and March 2007,
Lehman Brothers Inc. served as joint-book running manager for our private
offerings of an aggregate $450,000,000 original principal amount of the
notes.
|
(29)
|
Canyon
Capital Advisors LLC is the investment advisor for Lyxor/Canyon Capital
Arbitrage Fund, Ltd. and has the power to direct investments by
Lyxor/Canyon Capital Arbitrage Fund, Ltd. The managing partners
of Canyon Capital Advisors LLC are Joshua S. Friedman, Mitchell R. Julis,
and K. Robert Turner. Lyxor/Canyon Capital Arbitrage Fund, Ltd.
is a multi-class investment company with limited liability incorporated in
Jersey.
|
(30)
|
Canyon
Capital Advisors LLC is the investment advisor for Lyxor/Canyon Value
Realization Fund, Ltd. and has the power to direct investments by
Lyxor/Canyon Value Realization Fund, Ltd. The managing partners
of Canyon Capital Advisors LLC are Joshua S. Friedman, Mitchell R. Julis,
and K. Robert Turner. Lyxor/Canyon Value Realization Fund, Ltd.
is a multi-class investment company with limited liability incorporated in
Jersey under the companies (Jersey) Law 1991.
|
(31)
|
Millenium
Management, L.L.C., a Delaware limited liability company, is the general
partner of Millenium Partners, L.P., a Cayman Islands exempted limited
partnership, and consequently may be deemed to have voting control and
investment discretion over securities owned by Millenium Partners, L.P.
Israel A. Englander is the managing member of Millennium Management,
L.L.C. As a result, Mr. Englander may be deemed to be the beneficial owner
of any shares deemed to be beneficially owned by Millenium Management,
L.L.C. The foregoing should not be construed in and of itself as an
admission by either of Millennium Management, L.L.C. or Mr. Englander as
to beneficial ownership of the common shares owned by Millenium Partners,
L.P. The selling shareholder is an “affiliate” of a broker-dealer and
certifies that it bought the securities in the ordinary course of
business, and at the time of the purchase of the securities to be resold,
it had no agreements or understandings, directly or indirectly, with any
person to distribute the securities.
|
(32)
|
Robin
R. Shah exercises voting and/or dispositive power with respect to these
securities.
|
(33)
|
PNC
Equity Securities LLC is a wholly-owned subsidiary of the PNC Financial
Services Group, Inc., a publicly held company.
|
(34)
|
Polygon
Investment Partner LLP and Polygon Investment Partners LP (the “Investment
Managers”), Polygon Investments Ltd. (the “Manager”), Alexander E.
Jackson, Reade E. Griffith and Patrick G. G. Dear share voting and
dispositive power of the securities held by Polygon Global Opportunities
Master Fund. The Investment Managers, the Manager, Alexander E. Jackson,
Reade E. Griffith and Patrick G. G. Dear disclaim beneficial ownership of
the securities held by Polygon Global Opportunities Master
Fund.
|
(35)
|
Jeff
Baum and Tony Morgan, as principles for Redbrick Capital Management, Ltd.,
exercise voting and/or dispositive power with respect to these
securities.
|
(36)
|
Deutsche
Bank Trust Companies America may be deemed to exercise dispositive power
or investment control over the securities stated as beneficially owned by
Reflex Master Portfolio Ltd.
|
(37)
|
The
selling shareholder is an “affiliate” of a broker-dealer and certifies
that it bought the securities in the ordinary course of business, and at
the time of the purchase of the securities to be resold, it had no
agreements or understandings, directly or indirectly, with any person to
distribute the securities.
|
(38)
|
Pursuant
to investment agreements, each of S.A.C. Capital Advisors, LLC a Delaware
limited liability company (“SAC Capital Advisors”), and S.A.C. Capital
Management, LLC, a Delaware limited liability company (“SAC Capital
Management”), share all investment and voting power with respect to the
securities held by S.A.C. Arbitrage Fund, LLC. Mr. Steven A. Cohen
controls both SAC Capital Advisors and SAC Capital Management. Each of SAC
Capital Advisors, SAC Capital Management and Mr. Cohen disclaim beneficial
ownership of any of these securities.
|
(39)
|
Messrs.
Mark Fishman and Sal Naro may be deemed to share beneficial ownership of
the common shares owned of record by Sailfish Multi-Strategy Fixed Income
Master Fund (G2), Ltd., by virtue of their status as managing members of
Sailfish Capital Partners, LLC, a Delaware limited liability company, the
principal business of which is serving as the Investment Manager of
Sailfish Multi-Strategy Fixed Income Master Fund (G2), Ltd., a Cayman
Island limited company. Each of Mr. Fishman and Mr. Naro share investment
and voting power with respect to the ownership interests of the common
shares owned by Sailfish Multi-Strategy Fixed Income Master Fund (G2),
Ltd. but disclaim beneficial ownership of such
interests.
|
(40)
|
David
Hammend and Mark Tanaka exercise dispositive powers with respect to these
securities.
|
(41)
|
Canyon
Capital Advisors LLC is the investment advisor for The Canyon Value
Realization Fund (Cayman), Ltd. and has the power to direct investments by
The Canyon Value Realization Fund (Cayman), Ltd. The managing
partners of Canyon Capital Advisors LLC are Joshua S. Friedman, Mitchell
R. Julis, and K. Robert Turner. The Canyon Value Realization
Fund (Cayman), Ltd. is an Exempted Company incorporated in the Cayman
Islands with limited liability.
|
(42)
|
Robert
Marx exercises voting and/or dispositive powers with respect to these
securities.
|
(43)
|
Autandil
Giginershvili exercises voting and/or dispositive powers with respect to
these securities.
|
(44)
|
Wachovia
Securities International Ltd. is a wholly-owned subsidiary of Wachovia
Corporation. Wachovia Corporation and its affiliates in
the past have provided financing services to us. An affiliate of Wachovia
Corporation acted as placement agent for us for secured mortgage
indebtedness of $10.1 million in aggregate principal amount in 2005,
$51.5 million in aggregate principal amount in 2004 and
$13.4 million in aggregate principal amount in 2003. Additionally, an
affiliate of Wachovia Corporation acted as lender to us for
$7.7 million of secured mortgage indebtedness in 2004. In addition,
an affiliate of Wachovia Corporation acted as sole book-running manager in
public offerings of our common shares for $61.7 million in July 2005,
$127.2 million in February 2004, $102.6 million in October 2003,
$77.0 million in April 2003 and $42.6 million in September 2002.
Furthermore, an affiliate of Wachovia Corporation acted as lead arranger
for our $200.0 million credit facility in June 2005, pursuant to
which an affiliate of Wachovia Corporation committed $45.0 million.
An affiliate of Wachovia Corporation also acted as placement agent for us
in a private placement of our common shares of $35.0 million in June
2004. An affiliate of Wachovia Corporation as our exclusive
financial advisor with respect to the merger of Newkirk Realty Trust with
and into us. In January 2007, an affiliate of Wachovia Corporation served
as co-manager for our private offering of an aggregate
$300,000,000 original principal amount of the
notes.
|
(45)
|
Shad
Stastney, John Succo and Sky Lucas exercise voting and/or dispositive
power with respect to these securities.
|
(46)
|
The
total assumes exchange of the full amount of notes originally issued at
the initial exchange rate of 39.6071 of common shares per $1,000 principal
amount of notes and a cash payment in lieu of any fractional share, even
though (x) only $134,400,000 aggregate principal amount of the notes were
outstanding as of June 30, 2009 and (y) we are required to
pay the first $1,000 of exchange value in cash. Additional selling
shareholders not named in this prospectus will not be able to use this
prospectus for resales until they are named in the selling shareholder
table by prospectus supplement or post-effective amendment. Transferees,
successors and donees of identified selling shareholders who are selling
more than 500 common shares will not be able to use this prospectus for
resales until they are named in the selling shareholder table by
prospectus supplement or post-effective amendment. If required, we will
add transferees, successors and donees by prospectus supplement in
instances where the transferee, successor or donee has acquired its shares
from holders named in this prospectus after the effective date of this
prospectus.
|
·
|
fixed
prices, which may be changed;
|
·
|
prevailing
market prices at the time of sale, including in “at the market
offerings”;
|
·
|
varying
prices determined at the time of sale;
or
|
·
|
negotiated
prices.
|
·
|
a
block trade in which the broker-dealer so engaged may sell the common
shares as agent, but may position and resell a portion of the block as
principal to facilitate the
transaction;
|
·
|
a
purchase by a broker-dealer as principal and resale by such broker-dealer
for its own account;
|
·
|
an
ordinary brokerage transaction or a transaction in which the broker
solicits purchasers;
|
·
|
a
privately negotiated transaction;
|
·
|
an
underwritten offering;
|
·
|
through
agents;
|
·
|
securities
exchange or quotation system sale that complies with the rules of the
exchange or quotation system;
|
·
|
in
“at the market offerings” to or through a market maker or into an existing
trading market, or a securities exchange or
otherwise;
|
·
|
through
short sale transactions following which the common shares are delivered to
close out the short positions;
|
·
|
through
the writing of options relating to such common shares;
or
|
·
|
through
a combination of the above methods of
sale.
|
·
|
the
name of each such selling shareholder and of the participating
underwriters or broker-dealers;
|
·
|
the
number of common shares involved;
|
·
|
the
price at which such common shares were
sold;
|
·
|
the
commissions paid or discounts or concessions allowed to such underwriters
or broker-dealers, where
applicable;
|
·
|
as
appropriate, that such broker-dealers did not conduct any investigation to
verify the information set out or incorporated by reference in this
prospectus; and
|
·
|
other
facts material to the transaction.
|
·
|
our
Annual Report on Form 10-K for the year ended December 31, 2008, filed
with the SEC on March 2, 2009;
|
·
|
our
Quarterly Reports on Form 10-Q and Form 10-Q/A for the quarter ended March
31, 2009 filed with the SEC on May 8, 2009, and the quarter ended June 30,
2009 filed with the SEC on August 7,
2009;
|
·
|
our
Definitive Proxy Statement on Schedule 14A filed with the SEC on April 6,
2009;
|
·
|
our
Current Reports on Form 8-K filed on January 2, 2009, February 17, 2009,
April 27, 2009, June 15, 2009, June 26, 2009, August 4,
2009, September 1, 2009;
and
|
·
|
all
documents that we file with the SEC pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), after the date of this prospectus and prior to the termination of
this offering.
|
SEC
registration fee
|
$ | 4,789 | (1) | |
Legal
fees and expenses
|
25,000 | |||
Accounting
fees and expenses
|
15,000 | |||
Miscellaneous
expenses
|
20,000 | |||
Total
|
$ | 64,789 | (1) |
Exhibit No.
|
Exhibit
|
3.1
|
Amended
and Restated Declaration of Trust of the Company (incorporated by
reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed
January 8, 2007)*
|
3.2
|
Articles Supplementary
Relating to the 7.55% Series D Cumulative Redeemable Preferred Stock,
par value $.0001 per share (filed as Exhibit 3.3 to the Company’s
Registration Statement on Form 8-A filed February 14,
2007)*
|
3.3
|
Amended
and Restated By-Laws of the Company (incorporated by reference to Exhibit
3.2 to the Company’s Current Report on Form 8-K filed January 8,
2007)*
|
4.1
|
Specimen
of Common Shares Certificate of the Company (incorporated by reference to
Exhibit 4.1 to the Company’s Annual Report on Form 10-K for the year ended
December 31, 2006)*
|
4.2
|
Indenture,
dated as of January 29, 2007, among The Lexington Master Limited
Partnership, Lexington Realty Trust, the other guarantors named therein
and U.S. Bank National Association, as trustee (incorporated by reference
to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed January
29, 2007)*
|
4.3
|
First
Supplemental Indenture, dated as of January 29, 2007, among The Lexington
Master Limited Partnership, Lexington Realty Trust, the other guarantors
named therein and U.S. Bank National Association, as trustee, including
the Form of 5.45% Exchangeable Guaranteed Notes due 2027 (incorporated by
reference to Exhibit 4.2 to the Company’s Current Report on Form 8-K filed
January 29, 2007)*
|
4.4
|
Second
Supplemental Indenture, dated as of March 9, 2007, among The Lexington
Master Limited Partnership, Lexington Realty Trust, the other guarantors
named therein and U.S. Bank National Association, as trustee (incorporated
by reference to Exhibit 4.3 to the Company’s Current Report on Form 8-K
filed March 9, 2007)*
|
4.5
|
Third
Supplemental Indenture, dated as of June 19, 2007, among the Lexington
Master Limited Partnership, the Company, the other guarantors named
therein and U.S. Bank National Association, as trustee (filed as Exhibit
4.2 to the Company’s Current Report on Form 8-K filed on March 27,
2007)*
|
4.6
|
Fourth
Supplemental Indenture, dated as of December 31, 2008, among the Company,
Lepercq Corporate Income Fund L.P., Lepercq Corporate Income Fund II L.P.
and Net 3 Acquisition L.P. and the other guarantors named therein and U.S.
Bank National Association, as trustee (filed as Exhibit 4.1 to the
Company’s Current Report on Form 8-K filed on January 2,
2009)*
|
4.7
|
Ffith Supplemental
Indenture, dated as of June 9, 2009, among the Company, Lepercq Corporate
Income Fund L.P., Lepercq Corporate Income Fund II L.P. and Net 3
Acquisition L.P. and the other guarantors named therein and U.S. Bank
National Association, as trustee (filed as Exhibit 4.1 to the Company’s
Current Report on Form 8-K filed on June 15, 2009)*
|
4.8
|
Registration
Rights Agreement, dated as of January 29, 2007, among The Lexington Master
Limited Partnership, Lexington Realty Trust, Lepercq Corporate Income Fund
L.P., Lepercq Corporate Income Fund II L.P., Net 3 Acquisition L.P.,
Lehman Brothers Inc. and Bear, Stearns & Co. Inc., for themselves and
on behalf of the initial purchasers named therein (incorporated by
reference to Exhibit 4.3 to the Company’s Current Report on Form 8-K filed
January 29, 2007)*
|
4.9
|
Registration
Rights Agreement, dated as of March 9, 2007, among The Lexington Master
Limited Partnership, Lexington Realty Trust, Lepercq Corporate Income Fund
L.P., Lepercq Corporate Income Fund II L.P., Net 3 Acquisition L.P., Bear,
Stearns & Co. Inc. and Lehman Brothers Inc. (incorporated by reference
to Exhibit 4.4 to the Company’s Current Report on Form 8-K filed March 9,
2007)*
|
4.10
|
Common
Share Delivery Agreement, dated January 29, 2007, between the Lexington
Master Limited Partnership and Lexington Realty Trust (incorporated by
reference to Exhibit 10.77 to the Company’s Annual Report on Form 10-K for
the year ended December 31, 2006)*
|
4.11
|
Common
Share Delivery Agreement, dated March 9, 2007, between The Lexington
Master Limited Partnership and Lexington Realty Trust (incorporated by
reference to Exhibit 4.5 to the Company’s Current Report on Form 8-K filed
March 9, 2007)*
|
5.1
|
Opinion
of Venable LLP **
|
8.1
|
Opinion
of Paul, Hastings, Janofsky & Walker LLP **
|
23.1
|
Consent
of Venable LLP (included as part of Exhibit 5.1) **
|
23.2
|
Consent
of Paul, Hastings, Janofsky & Walker LLP (included as part of Exhibit
8.1) **
|
23.3
|
Consent
of KPMG LLP †
|
23.4
|
Consent
of PricewaterhouseCoopers LLP †
|
23.5
|
Consent
of KPMG LLP †
|
24 | Power of Attorney ** |
|
†
|
Filed
herewith
|
|
By:
|
/s/ T.
Wilson Eglin
|
|
T.
Wilson Eglin
|
|
Chief
Executive Officer, President and Chief Operating
Officer
|
Signature
|
Title
|
Date
|
*
E.
Robert Roskind
|
Chairman
of the Board of Trustees
|
September 1,
2009
|
*
Richard
J. Rouse |
Vice
Chairman, Chief Investment Officer and Trustee
|
September 1,
2009
|
/s/ T. Wilson Eglin
T.
Wilson Eglin
|
Chief
Executive Officer, President, Chief Operating Officer and
Trustee
|
September 1,
2009
|
*
Patrick
Carroll |
Chief
Financial Officer, Executive Vice President and
Treasurer
|
September 1,
2009
|
*
Paul
R. Wood |
Vice
President, Chief Accounting Officer and Secretary
|
September 1,
2009
|
*
Clifford
Broser |
Trustee
|
September 1,
2009
|
*
Geoffrey
Dohrmann |
Trustee
|
September 1,
2009
|
*
Harold
First |
Trustee
|
September 1,
2009
|
*
Richard
S. Frary |
Trustee
|
September 1,
2009
|
*
Carl
D. Glickman |
Trustee
|
September 1,
2009
|
*
James
Grosfeld |
Trustee
|
September 1,
2009
|
*
Kevin
W. Lynch |
Trustee
|
September 1,
2009
|
Exhibit No.
|
Exhibit
|
3.1
|
Amended
and Restated Declaration of Trust of the Company (incorporated by
reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed
January 8, 2007)*
|
3.2
|
Articles Supplementary
Relating to the 7.55% Series D Cumulative Redeemable Preferred Stock,
par value $.0001 per share (filed as Exhibit 3.3 to the Company’s
Registration Statement on Form 8-A filed February 14,
2007)*
|
3.3
|
Amended
and Restated By-Laws of the Company (incorporated by reference to Exhibit
3.2 to the Company’s Current Report on Form 8-K filed January 8,
2007)*
|
4.1
|
Specimen
of Common Shares Certificate of the Company (incorporated by reference to
Exhibit 4.1 to the Company’s Annual Report on Form 10-K for the year ended
December 31, 2006)*
|
4.2
|
Indenture,
dated as of January 29, 2007, among The Lexington Master Limited
Partnership, Lexington Realty Trust, the other guarantors named therein
and U.S. Bank National Association, as trustee (incorporated by reference
to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed January
29, 2007)*
|
4.3
|
First
Supplemental Indenture, dated as of January 29, 2007, among The Lexington
Master Limited Partnership, Lexington Realty Trust, the other guarantors
named therein and U.S. Bank National Association, as trustee, including
the Form of 5.45% Exchangeable Guaranteed Notes due 2027 (incorporated by
reference to Exhibit 4.2 to the Company’s Current Report on Form 8-K filed
January 29, 2007)*
|
4.4
|
Second
Supplemental Indenture, dated as of March 9, 2007, among The Lexington
Master Limited Partnership, Lexington Realty Trust, the other guarantors
named therein and U.S. Bank National Association, as trustee (incorporated
by reference to Exhibit 4.3 to the Company’s Current Report on Form 8-K
filed March 9, 2007)*
|
4.5
|
Third
Supplemental Indenture, dated as of June 19, 2007, among the Lexington
Master Limited Partnership, the Company, the other guarantors named
therein and U.S. Bank National Association, as trustee (filed as Exhibit
4.2 to the Company’s Current Report on Form 8-K filed on March 27,
2007)*
|
4.6
|
Fourth
Supplemental Indenture, dated as of December 31, 2008, among the Company,
Lepercq Corporate Income Fund L.P., Lepercq Corporate Income Fund II L.P.
and Net 3 Acquisition L.P. and the other guarantors named therein and U.S.
Bank National Association, as trustee (filed as Exhibit 4.1 to the
Company’s Current Report on Form 8-K filed on January 2,
2009)*
|
4.7
|
Ffith Supplemental
Indenture, dated as of June 9, 2009, among the Company, Lepercq Corporate
Income Fund L.P., Lepercq Corporate Income Fund II L.P. and Net 3
Acquisition L.P. and the other guarantors named therein and U.S. Bank
National Association, as trustee (filed as Exhibit 4.1 to the Company’s
Current Report on Form 8-K filed on June 15, 2009)*
|
4.8
|
Registration
Rights Agreement, dated as of January 29, 2007, among The Lexington Master
Limited Partnership, Lexington Realty Trust, Lepercq Corporate Income Fund
L.P., Lepercq Corporate Income Fund II L.P., Net 3 Acquisition L.P.,
Lehman Brothers Inc. and Bear, Stearns & Co. Inc., for themselves and
on behalf of the initial purchasers named therein (incorporated by
reference to Exhibit 4.3 to the Company’s Current Report on Form 8-K filed
January 29, 2007)*
|
4.9
|
Registration
Rights Agreement, dated as of March 9, 2007, among The Lexington Master
Limited Partnership, Lexington Realty Trust, Lepercq Corporate Income Fund
L.P., Lepercq Corporate Income Fund II L.P., Net 3 Acquisition L.P., Bear,
Stearns & Co. Inc. and Lehman Brothers Inc. (incorporated by reference
to Exhibit 4.4 to the Company’s Current Report on Form 8-K filed March 9,
2007)*
|
4.10
|
Common
Share Delivery Agreement, dated January 29, 2007, between the Lexington
Master Limited Partnership and Lexington Realty Trust (incorporated by
reference to Exhibit 10.77 to the Company’s Annual Report on Form 10-K for
the year ended December 31, 2006)*
|
4.11
|
Common
Share Delivery Agreement, dated March 9, 2007, between The Lexington
Master Limited Partnership and Lexington Realty Trust (incorporated by
reference to Exhibit 4.5 to the Company’s Current Report on Form 8-K filed
March 9, 2007)*
|
5.1
|
Opinion
of Venable LLP **
|
8.1
|
Opinion
of Paul, Hastings, Janofsky & Walker LLP **
|
23.1
|
Consent
of Venable LLP (included as part of Exhibit 5.1) **
|
23.2
|
Consent
of Paul, Hastings, Janofsky & Walker LLP (included as part of Exhibit
8.1) **
|
23.3
|
Consent
of KPMG LLP †
|
23.4
|
Consent
of PricewaterhouseCoopers LLP †
|
23.5
|
Consent
of KPMG LLP †
|
24 | Power of Attorney ** |
|
†
|
Filed
herewith
|
·
|
Report
dated March 1, 2009, except for notes 2, 3, 6, 10, 12, 13, 20 and 21,
which are as of August 31, 2009, with respect to the consolidated balance
sheets of Lexington Realty Trust and subsidiaries (the Company) as of
December 31, 2008 and 2007, and the related consolidated statements of
operations, comprehensive income, changes in equity, and cash flows for
each of the years in the three-year period ended December 31, 2008, and
the related financial statement schedule, included in the Company’s
Current Report on Form 8-K dated September 1, 2009. Our report refers to the
Company’s adoption of FASB Staff Position APB 14-1, Accounting for Convertible
Debt Instruments That May Be Settled in Cash Upon Conversion (Including
Partial Cash Settlement), SFAS No. 160, Noncontrolling Interests in
Consolidated Financial Statements – an amendment of ARB 51, and
FASB Staff Position EITF 03-06-1, Determining Whether
Instruments Granted in Share-Based Payment Transactions Are Participating
Securities. The consolidated financial statements of Lex-Win
Concord LLC (Concord), a 50 percent-owned investee company, were audited
by other auditors whose report has been furnished to us, and our opinion
on the Company’s consolidated financial statements, insofar as it relates
to the amounts included for Concord, is based solely on the report of the
other auditors.
|
·
|
Report
dated March 1, 2009 with respect to the effectiveness of internal control
over financial reporting as of December 31, 2008, included in the
Company’s Annual Report on Form 10-K dated March 2,
2009.
|
Re:
|
Lexington
Realty Trust (the “Company”
Registration
Statement on Form S-3
File
No. 333-157859 (the “Registration
Statement”)
|
cc:
|
Erin
Martin, Attorney-Advisor, Securities and Exchange Commission
Mark
Schonberger, Paul, Hastings, Janofsky & Walker
LLP
|