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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 OR 15(d) of
The
Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported): November 13, 2023
LXP
INDUSTRIAL TRUST |
(Exact
name of registrant as specified in its charter) |
|
Maryland |
1-12386 |
13-3717318 |
(State
or other jurisdiction
of
incorporation) |
(Commission
File Number) |
(IRS
Employer Identification No.) |
|
|
|
One
Penn Plaza, Suite 4015, New York, New York |
10119-4015 |
(Address
of principal executive offices) |
(Zip
Code) |
(212)
692-7200
(Registrant’s
telephone number, including area code)
N/A
(Former
name or former address, if changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant
under any of the following provisions (see General Instruction A.2. below):
☐ |
Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ |
Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ |
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities
registered pursuant to Section 12(b) of the Act:
Title
of each class |
Trading
Symbol(s) |
Name
of each exchange on which registered |
Shares
of beneficial interest, par value $0.0001 per share, classified as Common Stock |
LXP |
New
York Stock Exchange |
6.50%
Series C Cumulative Convertible Preferred Stock, par value $0.0001 per share |
LXPPRC |
New
York Stock Exchange |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ☐
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01. Entry
into a Material Definitive Agreement.
On November 13, 2023, LXP Industrial Trust (the
“Trust”) entered into a fourth supplemental indenture (the “Fourth Supplemental Indenture”) with U.S. Bank Trust
Company, National Association, as trustee (the “Trustee”) which supplements the base indenture, dated as of May 9, 2014 by
and among the Trust, certain subsidiaries of the Trust and U.S. Bank Trust Company, National Association (as successor to U.S. Bank National
Association), as trustee (the “Base Indenture,” and together with the Fourth Supplemental Indenture, the “Indenture”),
in connection with the issuance by the Trust of $300 million aggregate principal amount of its 6.750% Senior Notes due 2028 (the “Notes”).
The Indenture governs the terms of the Notes. The Notes mature on November 15, 2028, and accrue interest at a rate of 6.750% per annum,
payable semi-annually on May 15 and November 15 of each year, commencing May 15, 2024.
Prior to October 15, 2028 (the “Par Call
Date”), the Trust may redeem the Notes at its option, in whole or in part, at any time and from time to time, at a Redemption Price
(as defined in the Base Indenture) (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater
of (1) (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the Redemption
Date (as defined in the Base Indenture) (assuming the Notes matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Treasury Rate (as defined in the Fourth Supplemental Indenture) plus thirty five basis points
less (b) interest accrued to the Redemption Date, and (2) 100% of the principal amount of the Notes to be redeemed, plus, in either case,
accrued and unpaid interest thereon to, but excluding, the Redemption Date. On or after the Par Call Date, the Trust may redeem the Notes,
in whole or in part, at any time and from time to time, at a Redemption Price equal to 100% of the principal amount of the Notes to be
redeemed plus accrued and unpaid interest thereon to, but excluding the Redemption Date.
A copy of the Base Indenture is attached as
Exhibit 4.1 to the Current Report on Form 8-K, filed with the Securities and Exchange Commission on May 13, 2014, the Fourth Supplemental
Indenture is attached to this Current Report on Form 8-K (this “Current Report”) as Exhibit 4.1 and both are incorporated
herein by reference. The foregoing description of the Base Indenture and the Fourth Supplemental Indenture is qualified in its entirety
by reference to the full text of the respective documents.
Item 2.03. Creation
of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information contained in (or incorporated
by reference into) Item 1.01 of this Current Report is hereby incorporated by reference into this Item 2.03.
Item 8.01. Other
Information.
Opinions
Hogan Lovells US LLP and Venable LLP, counsel
and Maryland counsel to the Trust, respectively, have issued opinions to the Trust dated November 13, 2023, regarding the Notes. Copies
of the opinions are filed as Exhibits 5.1 and 5.2 hereto, respectively.
Item 9.01. Financial
Statements and Exhibits.
(d) Exhibits
|
104 |
Cover Page Interactive File (the cover page tags are embedded within the Inline XBRL document). |
SIGNATURES
Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
LXP Industrial Trust |
|
|
|
|
|
|
Date: November 13, 2023 |
By: |
/s/ Beth Boulerice |
|
|
Beth Boulerice |
|
|
Chief Financial Officer |
Exhibit 4.1
LXP INDUSTRIAL TRUST,
as Issuer,
and
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
Supplemental Indenture No. 4
Dated as of November 13, 2023
$300,000,000
of
6.750% Senior Notes due 2028
TABLE
OF CONTENTS
Page
Article I RELATION TO BASE INDENTURE; DEFINITIONS SECTION |
1 |
|
Section 1.1 |
Relation to Base Indenture |
1 |
|
Section 1.2 |
Definitions |
1 |
Article II THE NOTES SECTION |
6 |
|
Section 2.1 |
Title of the Securities |
6 |
|
Section 2.2 |
Forms Generally |
6 |
|
Section 2.3 |
Limitation on Initial Aggregate Principal Amount; Further Issuances |
7 |
|
Section 2.4 |
Interest and Interest Rates; Maturity Date of Notes |
7 |
|
Section 2.5 |
Issuance of Additional Notes |
7 |
|
Section 2.6 |
Limitations on Incurrence of Debt |
7 |
|
Section 2.7 |
Insurance |
10 |
|
Section 2.8 |
Maintenance of Properties |
10 |
|
Section 2.9 |
Payment of Taxes and Other Claims |
10 |
|
Section 2.10 |
Optional Redemption |
10 |
|
Section 2.11 |
Guarantees |
11 |
|
Section 2.12 |
No Sinking Fund |
12 |
|
Section 2.13 |
Conflict with Trust Indenture Act |
12 |
|
Section 2.14 |
Covenant Defeasance |
12 |
|
Section 2.15 |
No Recourse |
12 |
|
Section 2.16 |
Satisfaction and Discharge |
12 |
|
Section 2.17 |
Supplemental Indentures Without the Consent of Securityholders |
13 |
|
Section 2.18 |
Events of Default. |
13 |
|
Section 2.19 |
Payments of Securities on Default |
14 |
|
Section 2.20 |
Proceedings by Securityholders. |
14 |
|
Section 2.21 |
Notice |
15 |
Article III MISCELLANEOUS PROVISIONS SECTION |
16 |
|
Section 3.1 |
Ratification of Base Indenture |
16 |
|
Section 3.2 |
Governing Law |
16 |
|
Section 3.3 |
Counterparts |
16 |
|
Section 3.4 |
Trustee |
16 |
|
Section 3.5 |
Corporate Trust Office |
16 |
|
Section 3.6 |
Failure or Delay in Performance |
16 |
|
Section 3.7 |
Effect of Fourth Supplemental Indenture |
17 |
|
Section 3.8 |
Effect of Headings |
17 |
|
Section 3.9 |
Successors and Assigns |
17 |
|
Section 3.10 |
Severability Clause |
17 |
|
Section 3.11 |
Benefits of Fourth Supplemental Indenture |
17 |
|
Section 3.12 |
WAIVER OF JURY TRIAL |
17 |
|
Section 3.13 |
Electronic Notices |
17 |
EXHIBIT A |
Form of Note |
A-1 |
EXHIBIT B |
Form of Notation of Guarantee |
B-1 |
THIS SUPPLEMENTAL INDENTURE
NO. 4, dated as of November 13, 2023 (the “Fourth Supplemental Indenture”), between LXP INDUSTRIAL TRUST,
a Maryland real estate investment trust (formerly known as Lexington Realty Trust) (the “Issuer”), and U.S. BANK
TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association (as successor to U.S. Bank National Association), as trustee (herein
called the “Trustee”).
WITNESSETH:
WHEREAS, the Issuer
has heretofore delivered to the Trustee an Indenture dated as of May 9, 2014 (the “Base Indenture”), providing for
the issuance by the Issuer from time to time of its senior debt securities evidencing its unsecured and unsubordinated indebtedness (the
“Securities”).
WHEREAS, Section
2.01 of the Base Indenture provides for various matters with respect to any series of Securities issued under the Base Indenture to be
established in an indenture supplemental to the Base Indenture.
WHEREAS, Section
9.01(i) of the Base Indenture provides for the Issuer and the Trustee to enter into an indenture supplemental to the Base Indenture to
establish the form or terms of Securities of any series as provided by Sections 2.01 and 2.02 of the Base Indenture.
WHEREAS, the Board
of Trustees of the Issuer, has duly adopted resolutions authorizing the Issuer to execute and deliver this Fourth Supplemental Indenture
and issue the Notes; and
WHEREAS, all of
the conditions and requirements necessary to make this Fourth Supplemental Indenture, when duly executed and delivered, a valid and binding
agreement in accordance with its terms and for the purposes herein expressed, have been performed and fulfilled.
NOW, THEREFORE,
THIS FOURTH SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration
of the premises and the purchase of the series of Securities provided for herein by the Holders thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of Securities of such series, as follows:
Article
I
RELATION TO BASE INDENTURE; DEFINITIONS SECTION
Section 1.1
Relation to Base Indenture.
This Fourth Supplemental
Indenture constitutes an integral part of the Base Indenture.
Section 1.2
Definitions.
For all purposes of this
Fourth Supplemental Indenture, except as otherwise expressly provided for or unless the context otherwise requires:
(1) Capitalized
terms used but not defined herein shall have the respective meanings assigned to them in the Base Indenture; provided that, where
a term is defined both in this Fourth Supplemental Indenture and in the Base Indenture, the meaning given to such term in this Fourth
Supplemental Indenture shall control for purposes of this Fourth Supplemental Indenture and (in respect of the Notes but not any other
series of Securities) the Base Indenture; and
(2) All
references herein to Articles and Sections, unless otherwise specified, refer to the corresponding Articles and Sections of this Fourth
Supplemental Indenture.
“Acquired Debt”
means Debt of a Person (1) existing at the time such Person is merged or consolidated with or into the Issuer or any of its Subsidiaries
or becomes a Subsidiary of the Issuer; or (2) assumed by the Issuer or any of its Subsidiaries in connection with the acquisition of assets
from such Person. Acquired Debt shall be deemed to be incurred on the date the acquired Person is merged or consolidated with or into
the Issuer or any of its Subsidiaries or becomes a Subsidiary of the Issuer or the date of the related acquisition, as the case may be.
“Additional Notes”
means additional Notes (other than the Initial Notes) issued under this Fourth Supplemental Indenture in accordance with Section 2.5
hereof, as part of the same series as the Initial Notes.
“Annual Debt Service
Charge” means, for any period, the interest expense of the Issuer and its Subsidiaries for such period, determined on a consolidated
basis in accordance with United States generally accepted accounting principles.
“Authentication
Order” has the meaning specified in Section 2.2 hereof.
“Business Day”
means any day, other than a Saturday, Sunday or any other day on which banking institutions in New York, New York are authorized or obligated
by law or executive order to close.
“Consolidated
Income Available for Debt Service” means, for any period, Consolidated Net Income of the Issuer and its Subsidiaries for such
period, plus amounts which have been deducted and minus amounts which have been added for, without duplication: (1) interest expense on
Debt, (2) provision for taxes based on income, (3) amortization of debt discount, premium and deferred financing costs, (4) provisions
for unrealized gains and losses, (5) impairment losses and gains on sales or other dispositions of properties and other investments, (6)
real estate related depreciation and amortization, (7) amortization of right-of-use assets associated with finance leases of property,
(8) credit losses recognized on financial assets and certain other instruments not measured at fair value, (9) the effect of any non-recurring
non-cash items, (10) the effect of any non-cash charge resulting from a change in accounting principles in determining Consolidated Net
Income for such period, (11) amortization of deferred charges, (12) gains or losses on early extinguishment of debt, (13) gains or losses
on derivative financial instruments, and (14) acquisition expenses, all determined on a consolidated basis in accordance with United States
generally accepted accounting principles.
“Consolidated
Net Income” means, for any period, the amount of net income (or loss) of the Issuer and its Subsidiaries for such period, excluding,
without duplication: (1) extraordinary items, and (2) the portion of net income (but not losses) of the Issuer and its Subsidiaries
allocable to minority interests in unconsolidated
persons to the extent that cash dividends or distributions have not actually been received by the Issuer or one of its Subsidiaries, all
determined on a consolidated basis in accordance with United States generally accepted accounting principles.
“Debt”
means, with respect to any Person, any indebtedness of such Person in respect of, without duplication, (1) such Person’s borrowed
money or such Person’s indebtedness evidenced by bonds, notes, debentures or similar instruments, in each case, whether or not such
Debt is secured by any Lien existing on any property or assets owned by such Person; (2) any other indebtedness secured by any Lien on
any property or asset owned by such Person, but only to the extent of the lesser of (a) the amount of indebtedness so secured and (b)
the fair market value (determined in good faith by the board of trustees of such Person or, in the case of a Guarantor, by the Issuer’s
Board of Trustees or a duly authorized committee thereof) of the property subject to such Lien; (3) reimbursement obligations, contingent
or otherwise, in connection with any letters of credit actually issued or amounts representing the balance deferred and unpaid of the
purchase price of any property except any such balance that constitutes an accrued expense or trade payable; or (4) any lease of property
by such Person as lessee which is required to be reflected on such Person’s balance sheet as a finance lease in accordance with
United States generally accepted accounting principles. The term “Debt” also includes, to the extent not otherwise included,
any non-contingent obligation of such Person to be liable for, or to pay, as obligor, guarantor or otherwise (other than for purposes
of collection in the ordinary course of business), Debt of the types referred to above of another Person (it being understood that Debt
shall be deemed to be incurred by such Person whenever such Person shall create, assume, guarantee (on a non-contingent basis) or otherwise
become liable in respect thereof). Notwithstanding the foregoing, with respect to the Issuer and its Subsidiaries, “Debt”
shall not include Permitted Non-Recourse Guarantees of the Issuer or any of its Subsidiaries until such time as they become primary obligations
of, and payments are due and required to be made thereunder by, the Issuer or any of its Subsidiaries.
“Holder”
has the meaning specified in Section 2.4 hereof.
“Indenture”
means the Base Indenture together with this Fourth Supplemental Indenture, as may be amended, modified and/or supplemented with respect
to the Notes.
“Initial Notes”
means the first $300,000,000 aggregate principal amount of Notes issued under this Fourth Supplemental Indenture on the date hereof.
“Interest Payment
Date” has the meaning specified in Section 2.4 hereof.
“Lien”
means any mortgage, deed of trust, lien, charge, pledge, security interest, security agreement, or other encumbrance of any kind.
“Maturity Date”
has the meaning specified in Section 2.4 hereof.
“Non-Recourse Debt”
means Debt of a joint venture or Subsidiary of the Issuer (or an entity in which the Issuer or a Subsidiary of the Issuer is the general
partner or managing member) that is directly or indirectly secured by real estate assets or other real estate-related assets (including
capital stock) of the joint venture or Subsidiary of the Issuer (or entity in which
the Issuer or a Subsidiary of the Issuer is
the general partner or managing member) that is the borrower and is non-recourse to the Issuer or any of its Subsidiaries (other
than pursuant to a Permitted Non-Recourse Guarantee and other than with respect to the joint venture or Subsidiary of the Issuer
(or entity in which the Issuer or a Subsidiary of the Issuer is the general partner or managing member) that is the borrower); provided
further that, if any such Debt is partially recourse to the Issuer or any of its Subsidiaries (other than pursuant to a Permitted Non-Recourse Guarantee
and other than with respect to the joint venture or Subsidiary of the Issuer (or entity in which the Issuer or a Subsidiary of the Issuer
is the general partner or managing member) that is the borrower) and therefore does not meet the criteria set forth above, only the portion
of such Debt that does meet the criteria set forth above shall constitute “Non-Recourse Debt.”
“Notes”
has the meaning specified in Section 2.1 hereof and includes the Initial Notes and any Additional Notes.
“Par Call Date”
has the meaning provided in Section 2.10 hereof.
“Permitted Non-Recourse Guarantees”
means customary completion or budget guarantees, indemnities or other customary guarantees provided to lenders (including by means of
separate indemnification agreements, carve-out guarantees or pledges of the equity interests in the borrower) under such Non-Recourse Debt
in the ordinary course of business of the Issuer or any of its Subsidiaries in financing transactions that are directly or indirectly
secured by real estate assets or other real estate-related assets (including capital stock) of a joint venture or Subsidiary of the Issuer
(or an entity in which the Issuer or a Subsidiary is the general partner or managing member), in each case that is the borrower in such
financing, but is non-recourse to the Issuer or any of its other Subsidiaries, except for such completion or budget guarantees,
indemnities or other guarantees (including by means of separate indemnification agreements or carve-out guarantees or pledges
of the equity interests in the borrower) as are consistent with customary industry practice (such as environmental indemnities and recourse
triggers based on violation of transfer restrictions and other customary exceptions to non-recourse liability).
“Principal Credit
Agreement” means the Second Amended and Restated Credit Agreement, dated as of July 5, 2022, among the Issuer, as borrower,
each of the lenders party thereto, and KeyBank National Association, as agent, as the same may be amended, supplemented or otherwise modified
from time to time, and any successor credit agreement thereto (whether by renewal, replacement, refinancing or otherwise) that the Issuer
in good faith designates to be the Issuer’s principal credit agreement (taking into account the maximum principal amount of the
credit facility provided thereunder, the recourse nature of the agreement and such other factors as the Issuer deems reasonable in light
of the circumstances), such designation (or the designation that at a given time there is no principal credit agreement) to be made by
an Officers’ Certificate delivered to the Trustee.
“Record Date”
has the meaning specified in Section 2.4 hereof.
“Total Assets”
means the sum of, without duplication (1) Undepreciated Real Estate Assets and (2) all other assets (excluding accounts receivable, right-of
use assets associated with an operating lease, and non-real estate intangibles) of the Issuer and its Subsidiaries, all
determined on a consolidated basis in accordance
with United States generally accepted accounting principles.
“Total Unencumbered
Assets” means, as of any date, the Total Assets of the Issuer and its Subsidiaries, which are not subject to a Lien securing
Debt, all determined on a consolidated basis in accordance with United States generally accepted accounting principles; provided,
however, that, in determining Total Unencumbered Assets as a percentage of outstanding Unsecured Debt for purposes of the covenant
set forth in Section 2.6(d) hereof, all investments in unconsolidated limited partnerships, unconsolidated limited liability companies
and other unconsolidated entities shall be excluded from Total Unencumbered Assets.
“Treasury Rate”
means, with respect to any Redemption Date, the yield determined by the Issuer in accordance with the following two paragraphs.
The Treasury Rate shall be determined
by the Issuer after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the
Board of Governors of the Federal Reserve System), on the third Business Day preceding the date of the notice of redemption based upon
the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by
the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor
designation or publication) (“H.15”) under the caption “U.S. government securities–Treasury constant maturities–Nominal”
(or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, the Issuer shall select, as applicable:
(1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the Redemption Date to the Par Call Date (the
“Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life,
the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding
to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and shall interpolate to the Par Call Date
on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if
there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury
constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or
maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury
constant maturity from the Redemption Date.
If on the third Business Day
preceding the date of the notice of redemption H.15 TCM is no longer published, the Issuer shall calculate the Treasury Rate based on
the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day
preceding the date of the notice of redemption of the United States Treasury security maturing on, or with a maturity that is closest
to, the Par Call Date, as applicable. If there is no United States Treasury security maturing on the Par Call Date but there are two or
more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding
the Par Call Date and one with a maturity date following the Par Call Date, the Issuer shall select the United States Treasury security
with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call
Date or two or more United States Treasury securities
meeting the criteria of the
preceding sentence, the Issuer shall select from among these two or more United States Treasury securities the United States Treasury
security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities
at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield
to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as
a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal
places.
“Undepreciated
Real Estate Assets” means, as of any date, the cost (original cost plus capital improvements) of real estate assets, any right-of-use
assets associated with a financing lease, and related intangibles of the Issuer and its Subsidiaries on such date, before depreciation
and amortization, all determined on a consolidated basis in accordance with United States generally accepted accounting principles.
“Unsecured Debt”
means Debt of the Issuer or any of its Subsidiaries which is not secured by a Lien on any property or assets of the Issuer or any of its
Subsidiaries.
Article
II
THE NOTES SECTION
Section 2.1
Title of the Securities.
There shall be a series
of Securities designated the “6.750% Senior Notes due 2028” (the “Notes”).
Section 2.2
Forms Generally.
The Notes shall be issued
in the form of a Global Security and DTC shall be the initial Depositary for the Notes. The Notes and the Trustee’s certificate
of authentication shall be in the forms set forth in Exhibit A attached hereto, with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by the Indenture and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently
herewith, be determined by the Officers executing such Notes, as evidenced by their execution of the Notes. Any portion of the text of
any Note may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Note.
The Notes shall be printed,
lithographed or engraved or produced by any combination of these methods or may be produced in any other manner, as determined by the
Officers of the Issuer executing such Notes, as evidenced by their manual or facsimile execution of such Notes.
In accordance with Section
2.04 of the Base Indenture, upon the execution of this Fourth Supplemental Indenture, and from time to time thereafter, Notes may be executed
by the Issuer and delivered to the Trustee for authentication, and the Trustee shall thereupon authenticate and deliver Notes upon a written
order of the Issuer conforming to the signatory requirements of an Officers’ Certificate under Section 1.01 of the Base Indenture
(an “Authentication Order”).
Section 2.3
Limitation on Initial Aggregate Principal Amount; Further Issuances.
The aggregate principal
amount of the Initial Notes shall be limited to $300,000,000, except as provided in Sections 2.06 and 2.07 of the Base Indenture. The
Issuer may, from time to time, subject to Section 2.6 hereof and applicable law, create and issue Additional Notes under the Indenture
in accordance with Section 2.5 hereof.
Section 2.4
Interest and Interest Rates; Maturity Date of Notes.
The Notes shall bear interest
at 6.750% per annum from and including November 13, 2023 or from the immediately preceding Interest Payment Date (as defined below) to
which interest has been paid, payable semi-annually in arrears on May 15 and November 15 of each year, commencing May 15, 2024 (each,
an “Interest Payment Date”), to the registered holder (each, a “Holder”) in whose name the applicable
Notes are registered in the Security Register at the close of business on the May 1 or November 1 immediately preceding such Interest
Payment Date (regardless of whether such day is a Business Day), as the case may be (each, a “Record Date”). Interest
on the Notes shall be computed on the basis of a 360-day year of twelve 30-day months. The Notes shall mature on November 15, 2028 (the
“Maturity Date”).
Section 2.5
Issuance of Additional Notes.
The Issuer will be entitled,
upon delivery to the Trustee of an Officers’ Certificate, Opinion of Counsel and Authentication Order, subject to its compliance
with Section 2.6 hereof, to issue Additional Notes under the Indenture that will have identical terms to and the same CUSIP number
as the Initial Notes issued on the date of this Fourth Supplemental Indenture other than with respect to the date of issuance, issue price,
the date from which interest initially accrues on such Additional Notes, and if applicable, the first Interest Payment Date. The Initial
Notes and any such Additional Notes will constitute a single series of debt securities, and in circumstances in which the Indenture provides
for the Holders of Notes to vote or take any action, the Holders of Initial Notes and the Holders of any such Additional Notes will vote
or take the action as a single class.
With respect to any Additional
Notes, the Issuer will set forth in a Board Resolution and an Officers’ Certificate, a copy of each of which will be delivered to
the Trustee, the following information:
| (1) | the aggregate principal amount of such Additional Notes to be authenticated and delivered pursuant to
the Indenture; and |
| (2) | the issue price, the issue date and the CUSIP number of such Additional Notes. |
Section 2.6
Limitations on Incurrence of Debt.
(a)
Limitation on Total Outstanding Debt. The Issuer will not, and will not permit any of its Subsidiaries to, incur any Debt
(including, without limitation, Acquired Debt) if, immediately after giving effect to the incurrence of such Debt and the application
of the proceeds from such Debt on a pro forma basis, the aggregate principal amount of all of the
Issuer’s and its Subsidiaries’
outstanding Debt (determined on a consolidated basis in accordance with United States generally accepted accounting principles) is greater
than 60% of the sum of the following (without duplication): (1) the Issuer’s and its Subsidiaries’ Total Assets as of the
last day of the then most recently ended fiscal quarter covered in the Issuer’s annual or quarterly report most recently furnished
to Holders of the Notes or filed with the Commission, as the case may be, and (2) the aggregate purchase price of any real estate assets
or mortgages receivable acquired, and the aggregate amount of any securities offering proceeds received (to the extent such proceeds were
not used to acquire real estate assets or mortgages receivable or used to reduce Debt), by the Issuer or any Subsidiary of the Issuer
since the end of such fiscal quarter, including the proceeds obtained from the incurrence of such additional Debt.
(b)
Limitation on Secured Debt. The Issuer will not, and will not permit any of its Subsidiaries to, incur any Debt (including,
without limitation, Acquired Debt) secured by any Lien on any of the Issuer’s or any of its Subsidiaries’ property or assets,
whether owned on the date of this Fourth Supplemental Indenture or subsequently acquired, if, immediately after giving effect to the incurrence
of such Debt and the application of the proceeds from such Debt on a pro forma basis, the aggregate principal amount of all of the Issuer’s
and its Subsidiaries’ outstanding Debt (determined on a consolidated basis in accordance with United States generally accepted accounting
principles) which is secured by a Lien on any of the Issuer’s or its Subsidiaries’ property or assets is greater than 40%
of the sum of (without duplication): (1) the Issuer’s and its Subsidiaries’ Total Assets as of the last day of the then most
recently ended fiscal quarter covered in the Issuer’s annual or quarterly report most recently furnished to Holders of the Notes
or filed with the Commission, as the case may be; and (2) the aggregate purchase price of any real estate assets or mortgages receivable
acquired, and the aggregate amount of any securities offering proceeds received (to the extent such proceeds were not used to acquire
real estate assets or mortgages receivable or used to reduce Debt), by the Issuer or any of its Subsidiaries since the end of such fiscal
quarter, including the proceeds obtained from the incurrence of such additional Debt.
(c)
Debt Service Test.
| (1) | The Issuer will not, and will not permit any of its Subsidiaries to, incur any Debt (including, without
limitation, Acquired Debt) if the ratio of Consolidated Income Available for Debt Service to Annual Debt Service Charge for the period
consisting of the four consecutive fiscal quarters ending with the latest quarter covered in the Issuer’s annual or quarterly report
most recently furnished to Holders of the Notes or filed with the Commission, as the case may be, most recently ended prior to the date
on which such additional Debt is to be incurred shall have been less than 1.5:1 on a pro forma basis after giving effect to the incurrence
of such Debt and the application of the proceeds from such Debt (determined on a consolidated basis in accordance with United States generally
accepted accounting principles), and calculated on the following assumptions: |
| (A) | such Debt and any other Debt (including, without limitation, Acquired Debt) incurred by the Issuer or
any of |
its Subsidiaries since the first day
of such four- quarter period had been incurred, and the application of the proceeds from such Debt (including to repay or retire other
Debt) had occurred, on the first day of such period;
| (B) | the repayment or retirement of any other Debt (other than Debt repaid or retired with the proceeds of
any other Debt, which repayment or retirement shall be calculated pursuant to the immediately preceding clause (A) and not this clause
(B)) of the Issuer or any of its Subsidiaries since the first day of such four-quarter period had occurred on the first day of such period
(except that, in making this computation, the amount of Debt under any revolving credit facility, line of credit or similar facility will
be computed based upon the average daily balance of such Debt during such period); and |
| (C) | in the case of any acquisition or disposition by the Issuer or any of its Subsidiaries of any asset or
group of assets with a fair market value in excess of $1.0 million since the first day of such four-quarter period, whether by merger,
stock purchase or sale or asset purchase or sale or otherwise, such acquisition or disposition had occurred as of the first day of such
period with the appropriate adjustments with respect to such acquisition or disposition being included in such pro forma calculation. |
| (2) | If the Debt giving rise to the need to make the calculation described in Section 2.6(c)(1) hereof
or any other Debt incurred after the first day of the relevant four-quarter period bears interest at a floating rate (to the extent such
Debt has been hedged to bear interest at a fixed rate, only the portion of such Debt, if any, that has not been so hedged), then, for
purposes of calculating the Annual Debt Service Charge, the interest rate on such Debt will be computed on a pro forma basis by applying
the average daily rate which would have been in effect during the entire four-quarter period to the greater of the amount of such Debt
outstanding at the end of such period or the average amount of such Debt outstanding during such period. For purposes of this Section
2.6(c) hereof, Debt will be deemed to be incurred by the Issuer or any of its Subsidiaries whenever the Issuer or any of its Subsidiaries
shall create, assume, guarantee (on a non-contingent basis) or otherwise become liable in respect thereof. |
(d)
Maintenance of Total Unencumbered Assets. The Issuer and its Subsidiaries will not have at any time Total Unencumbered Assets
of less than 150% of the aggregate principal amount of all of the Issuer’s and its Subsidiaries’ outstanding Unsecured
Debt determined on a consolidated basis in
accordance with United States generally accepted accounting principles.
Section 2.7
Insurance.
The Issuer will, and will
cause each of its Subsidiaries to, keep in force upon all of the Issuer’s and each of its Subsidiaries’ properties and operations
insurance policies carried with responsible insurance companies in such amounts and covering all such risks as is customary in the industry
in which the Issuer and its Subsidiaries do business in accordance with prevailing market conditions and availability.
Section 2.8
Maintenance of Properties.
The Issuer will cause all
of its and its Subsidiaries’ material properties used or useful in the conduct of the business of the Issuer or any of its Subsidiaries
to be maintained and kept in good condition, repair and working order, normal wear and tear, casualty and condemnation excepted, and supplied
with all necessary equipment and the Issuer will cause all necessary repairs, renewals, replacements, betterments and improvements to
be made, all as in the Issuer’s judgment may be necessary in order for the Issuer to at all times properly and advantageously conduct
its business carried on in connection with such properties; provided, however, that
nothing in this Section 2.8 shall prevent the Issuer or any of its Subsidiaries from (1) removing permanently any property that has
been condemned or suffered a casualty loss, if it is in the best interests of the Issuer, (2) discontinuing maintenance or operation
of any property if, in the judgment of the Issuer, doing so is in the best interests of the Issuer and is not disadvantageous in any material
respect to the Holders of the Notes, or (3) selling or otherwise disposing of any properties for value in the ordinary course of
business.
Section 2.9
Payment of Taxes and Other Claims. The Issuer will pay or discharge or cause to be paid or discharged before it becomes
delinquent: (i) all taxes, assessments and governmental charges levied or imposed on the Issuer or any of its Subsidiaries or on its or
any such Subsidiary’s income, profits or property; and (ii) all lawful claims for labor, materials and supplies that, if unpaid,
might by law become a Lien upon its property or the property of any of its Subsidiaries; provided, however, that the Issuer
will not be required to pay or discharge or cause to be paid or discharged any tax, assessment, charge or claim the amount, applicability
or validity of which is being contested in good faith.
Section 2.10
Optional Redemption. The provisions of this Section 2.10 apply solely with respect to the Notes and all references to Holders
in this Section 2.10 shall be solely to Holders of the Notes. The Notes shall be redeemable at the Issuer’s option prior to the
Maturity Date in accordance with this Section 2.10 and Sections 3.01, 3.02 and 3.03 of the Base Indenture (as amended by this Section
2.10).
(a)
Prior to October 15, 2028 (the “Par Call Date”), the Issuer may redeem the Notes at its option, in whole or
in part, at any time and from time to time, at a Redemption Price (expressed as a percentage of principal amount and rounded to three
decimal places) equal to the greater of:
(1)
(a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the Redemption Date
(assuming the Notes matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
at the Treasury Rate plus 35 basis points less (b) interest accrued to the Redemption Date, and
(2)
100% of the principal amount of the Notes to be redeemed,
plus, in either case, accrued
and unpaid interest thereon to, but excluding, the Redemption Date.
On or after
the Par Call Date, the Issuer may redeem the Notes, in whole or in part, at any time and from time to time, at a Redemption Price equal
to 100% of the principal amount of the Notes being redeemed plus accrued and unpaid interest thereon to, but excluding, the Redemption
Date.
(b)
If a Redemption Date falls after a Record Date and on or prior to the corresponding Interest Payment Date, the Issuer will pay
the full amount of accrued and unpaid interest and premium, if any, due on such Interest Payment Date to the Holder of record at the close
of business on the corresponding Record Date (instead of the Holder surrendering its Notes for redemption).
(c)
The Issuer shall not redeem the Notes pursuant to Section 2.10(a) hereof on any date if the principal amount of the Notes
has been accelerated, and such an acceleration has not been rescinded or cured on or prior to such date (except in the case of an acceleration
resulting from a default by the Issuer in the payment of the Redemption Price with respect to the Notes to be redeemed).
(d)
Section 3.02(a) of the Base Indenture is hereby amended with respect to the Notes only by changing, in the first sentence thereof,
the number “30” to the number “10.”
(e)
Section 3.02(e) of the Base Indenture is hereby amended and restated with respect to the Notes only as follows:
“(e) In the
case of a partial redemption, selection of Notes in the form of Definitive Securities or portions of a Global Security for redemption
will be made pro rata, by lot or by such other method as the Trustee in its sole discretion deems appropriate and fair in principal amounts
of $2,000 and integral multiples of $1,000 in excess thereof. For so long as the Notes are held by DTC (or another Depositary), the selection
of Notes for partial redemption shall be done in accordance with the policies and procedures of the Depositary.”
Section 2.11
Guarantees.
(a)    
 In accordance with Section 15.04 of the Base Indenture, the Issuer will cause each Subsidiary of the Issuer that is a domestic
Subsidiary of the Issuer that becomes a Principal Credit Agreement Obligor on or after the date hereof, to, within 60 days of becoming
a Principal Credit Agreement Obligor, execute and deliver to the Trustee a supplemental indenture
pursuant to which such Subsidiary will unconditionally
Guarantee, on a joint and several basis, the full and prompt payment of the principal of, premium, if any, and interest in respect of
the Notes on a senior unsecured basis and all other obligations under the Indenture. Such Guarantor shall be automatically and unconditionally
released from its Guarantee pursuant to Section 15.03 of the Base Indenture.
(b)    
In accordance with Section 15.02 of the Base Indenture, each Guarantor shall also execute a notation of Guarantee substantially
in the form of Exhibit B supplemental hereto, which shall be endorsed on each Note authenticated and delivered by the Trustee.
Section 2.12
No Sinking Fund.
The provisions of Sections
3.04, 3.05 and 3.06 of the Base Indenture shall not be applicable to the Notes.
Section 2.13
Conflict with Trust Indenture Act.
If any provision of the
Indenture limits, qualifies or conflicts with another provision of the Indenture, which is required to be included in the Indenture by
any of the provisions of the Trust Indenture Act, such required provision shall control to the extent it is applicable.
Section 2.14
Covenant Defeasance. Section 12.03 of the Base Indenture is hereby amended with respect to the Notes only by changing, in
the first sentence thereof, the reference to “Section 4.05 and 4.08 and Article X hereof” to “Section 4.05, Section
5.04 and Article X of the Base Indenture and Sections 2.6, 2.7, 2.8 and 2.9 of the Fourth Supplemental Indenture.”
Section 2.15
No Recourse. Section 13.01 of the Base Indenture is hereby amended by changing, in the first sentence thereof, the reference
to “Article XVI hereof” to “Article XV hereof.”
Section 2.16     
Satisfaction and Discharge. The first paragraph of Section 11.01 of the Base Indenture is hereby amended and restated with
respect to the Notes only as follows:
“This Indenture
shall cease to be of further effect (except as to any surviving rights of transfer or exchange of Securities herein expressly provided
for and except as further provided below), and the Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when (a) either: (1) all Securities of a series theretofore authenticated
theretofore authenticated and delivered (other than (i) such Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 11.04 hereof and (ii) such Securities for whose payment moneys have theretofore been deposited
in trust and thereafter repaid to the Issuer as provided in Section 11.04 hereof) have been delivered to the Trustee for cancellation;
or (2) all such Securities not theretofore delivered to the Trustee for cancellation (i) have become due and payable, whether at the maturity
date, or otherwise, or (ii) are to be called for redemption under arrangements reasonably satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of the Issuer, and the Issuer, in the case of clause (1) or (2) above,
has irrevocably deposited or caused to be irrevocably deposited
with the Trustee or a Paying Agent (other
than the Issuer or any of its Affiliates), as applicable, as trust funds in trust cash in an amount sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and interest to the date
of such deposit (in the case of such Securities which have become due and payable) or to the maturity date or Redemption Date, as the
case may be; provided, however, that there shall not exist, on the date of such deposit, a Default or Event of Default; provided, further,
that such deposit shall not result in a breach or violation of, or constitute a Default under, this Indenture or any other agreement or
instrument to which the Issuer is a party or to which the Issuer is bound; (b) the Issuer has paid or caused to be paid all other sums
payable hereunder by the Issuer; and (c) the Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been
complied with.”
Section 2.17
Supplemental Indentures Without the Consent of Securityholders.
(a)
Section 9.01(a) of the Base Indenture is hereby amended and restated with respect to the Notes only as follows:
“(a) to evidence a successor to the
Issuer as obligor or a Guarantor as guarantor under this Indenture, or successive successors, and the assumption by any such successor
of the covenants of the Issuer or any Guarantor, in a transaction permitted by Article X;”
(b)
Section 9.01 of the Base Indenture is hereby amended with respect to the Notes only by deleting “or” in clause (o)
and inserting the following clauses (q) and (r) after clause (p):
“(q) to confirm
and evidence the release, termination or discharge of any Guarantee of or Lien securing the Securities when such release, termination
or discharge is permitted by this Indenture; or
(r) to add or change
any provisions of this Indenture to such extent as is necessary to permit or facilitate the issuance of Securities in uncertificated form;
provided that the uncertificated Securities are issued in registered form for purposes of Section 163(f) of the Internal Revenue Code
of 1986, as amended, and such additions and changes to not have an adverse effect on the Holders of the Securities in any material respect.”
Section 2.18
Events of Default.
(a)
Section 6.01(e) of the Base Indenture is hereby amended and restated with respect to the Notes only as follows:
“(e) failure
to pay any recourse indebtedness for money borrowed by the Issuer or any Material Subsidiary of the Issuer in an outstanding principal
amount in excess of $50,000,000 at final maturity or upon acceleration after the expiration of any applicable grace period, which recourse
indebtedness is not discharged, or such default in payment or acceleration is not cured or rescinded, within sixty (60) days after written
notice to the
Issuer from the Trustee (or to the Issuer
and the Trustee from Holders of at least twenty-five percent (25%) in principal amount of the outstanding series of Securities); or”
(b)
Section 6.01(g) of the Base Indenture is hereby amended with respect to the Notes only by changing, in the final sentence thereof,
the number “thirty (30)” to the number “sixty (60).”
(c)
Section 6.01(h) of the Base Indenture is hereby amended with respect to the Notes only by changing, in the final sentence thereof,
the number “thirty (30)” to the number “sixty (60).”
Section 2.19
Payments of Securities on Default.
(a)
The first paragraph of Section 6.02 of the Base Indenture is hereby amended and restated with respect to the Notes only as follows:
“The Issuer covenants that in the case
of an Event of Default pursuant to Section 6.01(a) or 6.01(b) hereof, upon demand of the Trustee, the Issuer will pay to the Trustee,
for the benefit of the Holders of the Securities, (i) the whole amount that then shall be due and payable on all such Securities for principal
and premium, if any, or interest, as the case may be, with interest upon the overdue principal and premium, if any, and (to the extent
that payment of such interest is enforceable under applicable law) upon the overdue installments of accrued and unpaid interest at the
rate borne by the Securities and, (ii) in addition thereto, any amounts due the Trustee hereunder. Until such demand by the Trustee, the
Issuer may pay the principal of and premium, if any, and interest on the Securities to the registered Holders of the Securities, whether
or not the Securities are overdue.”
(b)
Clause SECOND of Section 6.03 of the Base Indenture is hereby amended and restated with respect to the Notes only as follows:
“SECOND: In
case the principal of the outstanding Securities shall not have become due and be unpaid, to the payment of accrued and unpaid interest,
if any, on the Securities in default in the order of the maturity of the installments of such interest, with interest (to the extent that
such interest has been collected by the Trustee) as provided in Section 6.02 hereof upon the overdue installments of interest at the applicable
interest rate, such payments to be made ratably to the Persons entitled thereto;”
Section 2.20
Proceedings by Securityholders. The first paragraph of Section 6.04 of the Base Indenture is hereby amended and restated
with respect to the Notes only as follows:
“No Holder
of any Security shall have any right by virtue of or by reference to any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture, or for the appointment of a receiver, trustee, liquidator,
custodian or other similar official, or for any other remedy hereunder, except in the case of a default in the payment of principal, premium,
if any, or interest on such Securities, unless (a) such Holder previously shall have given to the Trustee written
notice of an Event of Default and of
the continuance thereof, as hereinbefore provided, (b) the Holders of at least twenty five percent (25%) in aggregate principal amount
of such Securities then outstanding shall have made written request upon the Trustee to institute such action, suit or proceeding in its
own name as Trustee hereunder and shall have offered to the Trustee such reasonable security or indemnity as it may require against the costs, liabilities or expenses to be incurred therein or thereby, (c) the Trustee
for ninety (90) calendar days after its receipt of such notice, request and offer of indemnity, shall have neglected or refused to institute
any such action, suit or proceeding and (d) no direction inconsistent with such written request shall have been given to the Trustee pursuant
to Section 6.07 hereof; it being understood and intended, and being expressly covenanted by the taker and Holder of every such Security
with every other taker and Holder and the Trustee, that no one or more Holders of such Securities shall have any right in any manner whatever
by virtue of or by reference to any provision of this Indenture to affect, disturb or prejudice the rights of any other Holder of such
Securities, or to obtain or seek to obtain priority over or preference to any other such Holder, or to enforce any right under this Indenture,
except in the manner herein provided and for the equal, ratable and common benefit of all Holders of such Securities (except as otherwise
provided herein). For the protection and enforcement of this Section 6.04, each and every such Securityholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.”
Section 2.21
Notice.
(a)  
Section 16.03 of the Base Indenture is hereby amended with respect to the Notes to substitute Hogan Lovells US LLP for each instance
of Paul Hastings LLP. The address that copies are to be directed to is as follows:
Hogan Lovells US LLP
555 Thirteenth Street, NW
Washington, DC 20004
Facsimile No.: (202) 637-5910
Attention: Michael McTiernan
(b)
The penultimate paragraph of Section 16.03 of the Base Indenture is hereby amended and restated with respect to the Notes only
as follows:
“Any notice
or communication to a Holder of a Definitive Security shall be mailed by first class mail, postage prepaid, at such Securityholder’s
address as it appears on the Security Register and any notice or communication to a Holder of a Global Security shall be given to the
Depositary in accordance with its applicable procedures. Any notice or communication to a Holder of a Security shall be sufficiently given
to such Securityholder if so mailed or transmitted within the time prescribed. The Depositary shall provide notice to holders of beneficial
interest in a Global Security in accordance with its procedures.”
Article
III
MISCELLANEOUS PROVISIONS SECTION
Section 3.1
Ratification of Base Indenture.
Except as expressly modified
or amended hereby, the Base Indenture continues in full force and effect and is in all respects confirmed, ratified and preserved.
Section 3.2
Governing Law.
This Fourth Supplemental
Indenture and each Note shall be governed by and construed in accordance with the laws of the State of New York. This Fourth Supplemental
Indenture is subject to the provisions of the Trust Indenture Act and shall, to the extent applicable, be governed by such provisions.
Section 3.3
Counterparts.
This Fourth Supplemental
Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument. The exchange of copies of this Fourth Supplemental Indenture and of signature
pages by facsimile, PDF transmission or other electronic transmission shall constitute effective execution and delivery of this Fourth
Supplemental Indenture as to the parties hereto and may be used in lieu of the original Fourth Supplemental Indenture and signature pages
for all purposes.
Section 3.4
Trustee.
The Trustee makes no representations
as to the validity or sufficiency of this Fourth Supplemental Indenture, the Notes or any Guarantee. The statements and recitals herein
are deemed to be those of the Issuer and not of the Trustee. All of the provisions contained in the Base Indenture in respect of the rights,
privileges, immunities, powers and duties of the Trustee shall be applicable in respect of the Notes, any Guarantee and of this Fourth
Supplemental Indenture as fully and with like effect as if set forth herein in full.
Section 3.5
Corporate Trust Office.
The Trustee hereby notifies
the Issuer that its corporate trust business is principally administered at its office located at 100 Wall Street, Suite 600, New York,
New York 10005 and, therefore, pursuant to the Indenture, the Corporate Trust Office is such office.
Section 3.6
Failure or Delay in Performance.
In no event shall the Trustee
be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly
or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, pandemics, acts of war or
terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of
utilities, communications or computer (software
and hardware) services; it being understood
that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance
as soon as practicable under the circumstances.
Section 3.7
Effect of Fourth Supplemental Indenture.
This Fourth Supplemental
Indenture is a supplemental indenture within the meaning of Section 9.01 of the Base Indenture, and the Base Indenture shall be read together
with this Fourth Supplemental Indenture and shall have the same effect over the Notes, in the same manner as if the provisions of the
Base Indenture and this Fourth Supplemental Indenture were contained in the same instrument. In all other respects, the Base Indenture
is confirmed by the parties hereto as supplemented by the terms of this Fourth Supplemental Indenture; provided that the provisions
of this Fourth Supplemental Indenture apply solely with respect to the Notes.
Section 3.8
Effect of Headings.
The Article and Section
headings herein are for convenience only and shall not affect the construction hereof.
Section 3.9
Successors and Assigns.
All covenants and agreements
in the Indenture by the Issuer, the Trustee and the Holders shall bind their successors and assigns, whether so expressed or not.
Section 3.10
Severability Clause.
In case any provision in
the Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
Section 3.11
Benefits of Fourth Supplemental Indenture.
Nothing in the Indenture
or in the Notes, express or implied, shall give to any Person, other than the parties thereto, any benefit or any legal or equitable right,
remedy or claim under the Indenture or the Notes.
Section 3.12
WAIVER OF JURY TRIAL.
EACH OF THE ISSUER AND
THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS FOURTH SUPPLEMENTAL INDENTURE, THE BASE INDENTURE (TO THE EXTENT IT RELATES TO THE NOTES),
THE NOTES, ANY GUARANTEE OR THE TRANSACTION CONTEMPLATED HEREBY.
Section 3.13
Electronic Notices.
In addition to the foregoing,
the Trustee agrees to accept and act upon notice, instructions or directions pursuant to the Indenture sent by unsecured e-mail, facsimile
transmission or other similar unsecured electronic methods. If the party elects to give the Trustee e-mail or facsimile instructions (or
instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s
understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising
directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions
conflict or are inconsistent with a subsequent written instruction. The party providing electronic instructions agrees to assume all risks
arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the
risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties.
IN WITNESS WHEREOF,
the parties hereto have caused this Fourth Supplemental Indenture to be duly executed all as of the day and year first above written.
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ISSUER: |
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LXP INDUSTRIAL TRUST, a Maryland real estate investment trust, as Issuer of the Notes |
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By: |
/s/ Joseph Bonventre |
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Name: |
Joseph Bonventre |
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Title: |
Executive Vice President, Chief Operating Officer, General Counsel, and Secretary |
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[Signature Page to Fourth Supplemental
Indenture]
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TRUSTEE: |
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U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, |
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as Trustee |
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By: |
/s/ Michelle Mena-Rosado |
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Name: |
Michelle Mena-Rosado |
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Title: |
Vice President |
[Signature Page to Fourth Supplemental
Indenture]
EXHIBIT A
THIS GLOBAL SECURITY IS
HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS
HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 2.02 OF THE BASE INDENTURE, (2) THIS GLOBAL SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT
TO SECTION 2.05(a) OF THE BASE INDENTURE, (3) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.08 OF THE BASE INDENTURE AND (4) THIS GLOBAL SECURITY MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
THE ISSUER.
UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY
OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY
BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
[Form of Face of Note]
LXP
Industrial TRUST
6.750% Senior Notes due 2028
No. [●]
CUSIP No.: 529043 AF8
ISIN:   US529043AF83
$300,000,000
LXP Industrial Trust, a
Maryland real estate investment trust (herein called the “the Issuer,” which term includes any successor entity under
the Indenture referred to on the reverse hereof), for value received hereby promises to pay to Cede & Co., or its registered assigns,
the principal sum of THREE HUNDRED MILLION DOLLARS ($300,000,000), or such lesser amount as is set forth in the Schedule of Increases
or Decreases In Global Security on the other side of this Note, on November 15, 2028 at the office or agency of the Issuer maintained
for that purpose in accordance with the terms of the Indenture, in such coin or currency of the United States of America as at the time
of payment shall be legal tender for the payment of public and private debts, and to pay interest, semi-annually on May 15 and November
15 of each year, commencing May 15, 2024, on said principal sum at said office or agency, in like coin or currency, at the rate per annum
of 6.750%, from the May 15 or November 15, as the case may be, next preceding the date to which interest has been paid or duly provided
for, unless no interest has been paid or duly provided for on the Notes, in which case from and including November 13, 2023 until payment
of said principal sum has been made or duly provided for. The Issuer shall pay interest on any Notes in certificated form by check mailed
to the address of the Person entitled thereto as it appears in the Security Register, or on any Global Security by wire transfer of immediately
available funds to the account of the Depositary or its nominee. The Issuer shall pay interest to Holders of record as of the May 1 or
November 1 preceding the applicable Interest Payment Date, in accordance with the terms of the Indenture.
The Issuer promises to
pay interest on overdue principal, premium, if any, and (to the extent that payment of such interest is enforceable under applicable law)
interest at the rate borne by the Notes.
Reference is made to the
further provisions of this Note set forth on the reverse hereof and the Indenture governing this Note. Such further provisions shall for
all purposes have the same effect as though fully set forth at this place.
This Note shall not be
valid or become obligatory for any purpose until the certificate of authentication hereon shall have been signed manually by the Trustee
or a duly authorized authenticating agent under the Indenture.
IN WITNESS WHEREOF,
the Issuer has caused this Note to be duly executed.
Dated: November 13, 2023
|
Name: |
Joseph Bonventre |
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Title: |
Executive Vice President, Chief Operating Officer, General Counsel, and Secretary |
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-named
Indenture.
Dated: November 13, 2023
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U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
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as Trustee |
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[FORM
OF REVERSE SIDE OF NOTE]
LXP INDUSTRIAL
Trust
6.750%
Senior Notes due 2028
This Note is one of a duly
authorized issue of a series of Securities of the Issuer, designated as its 6.750% Senior Notes due 2028 (herein called the “Notes”),
issued under and pursuant to an Indenture, dated as of May 9, 2014 (the “Base Indenture”), by and between the Issuer
and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”), as supplemented by the Fourth Supplemental
Indenture dated as of November 13, 2023 (the “Fourth Supplemental Indenture”), between the Issuer and the Trustee (the
Base Indenture, as amended and supplemented by the Fourth Supplemental Indenture, and as may otherwise be amended and/or modified from
time to time, the “Indenture”), to which Indenture and any indentures supplemental thereto reference is hereby made
for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Issuer, any
Guarantor and the Holders of the Notes. Defined terms used but not otherwise defined in this Note shall have the respective meanings ascribed
thereto in the Indenture.
If an Event of Default
(other than an Event of Default specified in Section 6.01(f), 6.01(g) or 6.01(h) of the Base Indenture with respect to the Issuer) occurs
and is continuing, the principal of, premium, if any, and accrued and unpaid interest on all Notes may be declared to be due and payable
by either the Trustee or the Holders of at least twenty five percent (25%) in aggregate principal amount of the Notes then outstanding,
and, upon said declaration the same shall be immediately due and payable. If an Event of Default specified in Section 6.01(f), 6.01(g)
or 6.01(h) of the Base Indenture occurs with respect to the Issuer, the principal of and premium, if any, and interest accrued and unpaid
on all the Notes shall be immediately and automatically due and payable without necessity of further action.
The Indenture contains
provisions permitting the Issuer and the Trustee, with the consent of the Holders of not less than a majority in aggregate principal amount
of the Notes at the time outstanding, to execute supplemental indentures adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of any supplemental indenture or modifying in any manner the rights of the Holders of the Notes,
subject to exceptions set forth in Section 9.02 of the Base Indenture. Subject to the provisions of the Indenture, the Holders of not
less than a majority in aggregate principal amount of the Notes at the time outstanding may, on behalf of the Holders of all of the Notes,
waive any past Default or Event of Default, subject to exceptions set forth in the Indenture.
No reference herein to
the Indenture and no provision of this Note or of the Indenture shall impair, as among the Issuer and the Holder of the Notes, the obligation
of the Issuer, which is absolute and unconditional, to pay the principal of, premium, if any, on and interest on this Note at the place,
at the respective times, at the rate and in the coin or currency herein and in the Indenture prescribed.
Interest on the Notes shall be computed on the basis of a 360-day year
of twelve 30-day months.
The Notes are issuable
in fully registered form, without coupons, in denominations of $2,000 principal amount and any multiple of $1,000. At the office or agency
of the Issuer referred to on the face hereof, and in the manner and subject to the limitations provided in the Indenture, without payment
of any service charge but with payment of a sum sufficient to cover any tax, assessment or other governmental charge that may be imposed
in connection with any registration or exchange of Notes, Notes may be exchanged for a like aggregate principal amount of Notes of any
other authorized denominations.
The Issuer shall have the
right to redeem the Notes under certain circumstances as set forth in Section 2.10 of the Fourth Supplemental Indenture.
The Notes are not subject
to redemption through the operation of any sinking fund.
Except as expressly provided
in Article XV of the Base Indenture, no recourse for the payment of the principal of or, premium, if any, or interest on this Note, or
for any claim based hereon or otherwise in respect hereof, and no recourse under or upon any obligation, covenant or agreement of the
Issuer in the Indenture or any supplemental indenture or in any Note, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, partner, member, manager, employee, agent, officer, trustee, director or subsidiary,
as such, past, present or future, of any Guarantor, the Issuer or any of the Issuer’s Subsidiaries or of any successor thereto,
either directly or through any Guarantor, the Issuer or any of the Issuer’s subsidiaries or of any successor thereto, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a condition of, and as consideration for, the execution
of the Indenture and the issue of this Note.
ASSIGNMENT
FORM
To assign this Note, fill
in the form below:
(I) or (we) assign and transfer this Note to:
(Insert assignee’s legal name)
(Insert assignee’s soc. sec. or tax I
D. no.)
(Print or type assignee’s name, address
and zip code)
and irrevocably appoint __________________
to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.
Date: _____________ |
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Your Signature: |
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(Sign exactly as your name appears on
the face of this Note) |
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*Signature Guarantee: |
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*Participant in a recognized Signature
Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
Schedule
of Increases or Decreases In Global Security *
The following increases
and decreases in this Global Security, have been made:
Date of Increase
or Decrease |
Amount of decrease
in Principal Amount at maturity of this Global Security |
Amount of increase
in Principal Amount at maturity of this Global Security |
Principal Amount
at maturity of this Global Security following such decrease (or increase) |
Signature of
authorized signatory of Trustee or Custodian |
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* This schedule should be included only if
the Note is issued in global form.
EXHIBIT B
FORM OF NOTATION OF GUARANTEE
[DATE]
The guarantor listed below
(hereinafter referred to as the “Guarantor,” which term includes any successors or assigns under the Indenture, dated
May 9, 2014, (the “Base Indenture”), by and between the Issuer (as defined below) and U.S. Bank Trust Company, National
Association, as trustee (the “Trustee”), as supplemented by the Fourth Supplemental Indenture dated as of November
13, 2023 (the “Fourth Supplemental Indenture”), between the Issuer and the Trustee and [REFERENCE APPLICABLE SUPPLEMENTAL
INDENTURE GUARANTOR MUST EXECUTE] (the Base Indenture, as so amended and supplemented, the “Indenture”), has irrevocably
and unconditionally, jointly and severally, guaranteed on a senior unsecured basis the Guarantee Obligations (as defined in Section 15.01
of the Base Indenture), which include (i) the due and punctual payment of the principal of, premium, if any, and interest, if any, on
the 6.750% Senior Notes due 2028 (the “Notes”) of LXP Industrial Trust, a Maryland real estate investment trust (the
“Issuer”), whether at maturity, by acceleration, call for redemption or otherwise, the due and punctual payment of
interest on the overdue principal and premium, if any, and (to the extent permitted by law) interest on any interest on the Notes, and
the due and punctual performance of all other obligations of the Issuer, to the Holders of the Notes or the Trustee all in accordance
with the terms set forth in Article XV of the Base Indenture, and (ii) in case of any extension of time of payment or renewal of any Notes
or any such other obligations, that the same shall be promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at maturity, by acceleration, call for redemption or otherwise.
The obligations of the
Guarantor to the Holders of the Notes and to the Trustee pursuant to this Guarantee and the Indenture are expressly set forth in Article
XV of the Base Indenture and reference is hereby made to such Indenture for the precise terms of this Guarantee.
Except as expressly provided
in Article XV of the Base Indenture, no recourse for the payment of the principal of or, premium, if any, or interest on the Notes, or
for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the
Guarantor in the Indenture or any supplemental indenture or in any Note, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, partner, member, manager, employee, agent, officer, trustee, director or subsidiary,
as such, past, present or future, of the Guarantor or of any successor thereto, whether by virtue of any constitution, statute or rule
of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby
expressly waived and released as a condition of, and as consideration for, the execution of this Guarantee.
The Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the event of merger or bankruptcy of the Issuer, any right
to require a proceeding first against the Issuer, the benefit of discussion, protest or notice with respect to the Notes and all demands
whatsoever.
This is a continuing Guarantee
and shall remain in full force and effect and shall be binding upon the Guarantor and its successors and assigns until full and final
payment of all of the Issuer’s obligations under the Notes and Indenture or until legally discharged in accordance with the Indenture
and shall inure to the benefit of the successors and assigns of the Trustee and the Holders of the Notes, and, in the event of any transfer
or assignment of rights by any Holder of the Notes or the Trustee, the rights and privileges herein conferred upon that party shall automatically
extend to and be vested in such transferee or assignee, all subject to the terms and conditions hereof. This is a Guarantee of payment
and performance and not a guarantee of collection.
This Guarantee shall not
be valid or obligatory for any purpose until the certificate of authentication on the Note upon which this Guarantee is noted shall have
been signed, in the name and on behalf of the Trustee under the Indenture, manually by one of the authorized officers of the Trustee under
the Indenture or as otherwise permitted under the Indenture.
The obligations of the
Guarantor under this Guarantee shall be limited to the extent necessary to insure that it does not constitute a fraudulent conveyance
under applicable law.
THE TERMS OF ARTICLE XV
OF THE INDENTURE ARE INCORPORATED HEREIN BY REFERENCE.
Capitalized terms used
herein have the same meanings given in the Indenture unless otherwise indicated.
IN WITNESS WHEREOF, the Guarantor
has caused this notation of Guarantee to be duly executed as of the day and year first above written.
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SUBSIDIARY GUARANTOR: |
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[_____], a [_____] [_____], as a Subsidiary Guarantor |
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By: |
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Name: |
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Title: |
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Exhibit 5.1
|
Hogan Lovells US LLP
Columbia Square
555 Thirteenth Street, NW
Washington, DC 20004
T +1 202 637 5600
F +1 202 637 5910
www.hoganlovells.com |
November 13, 2023
Board
of Trustees
LXP Industrial
Trust
One Penn
Plaza, Suite 4015
New York,
NY 10119
Ladies and Gentlemen:
We are acting as counsel
to LXP Industrial Trust, a Maryland real estate investment trust (the “Company”), in connection with the issuance and
sale of $300,000,000 aggregate principal amount of the Company’s 6.750% Senior Notes due 2028 (the “Notes”) pursuant
to a registration statement on Form S-3 (File No. 333-253297) (the “Registration Statement”), filed with the Securities
and Exchange Commission under the Securities Act of 1933, as amended (the “Act”), on February 19, 2021, and the prospectus
dated February 19, 2021 (the “Prospectus”), as supplemented by the supplement to the Prospectus dated November 2, 2023
(the “Prospectus Supplement”). The Notes are to be issued pursuant to an Indenture dated as of May 9, 2014, between
the Company and U.S. Bank National Association (the “Indenture”), as supplemented by the Fourth Supplemental Indenture
(the “Supplemental Indenture”) to be entered into between the Company and U.S. Bank Trust Company, National Association
(a successor in interest to U.S. Bank National Association) as trustee (the “Trustee”). This opinion letter is furnished
to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. § 229.601(b)(5),
in connection with the Registration Statement.
For purposes of this
opinion letter, we have examined copies of such agreements, instruments and documents as we have deemed an appropriate basis on which
to render the opinions hereinafter expressed. In our examination of the aforesaid documents, we have assumed the genuineness of
all signatures, the legal capacity of all natural persons, the accuracy and completeness of all documents submitted to us, the authenticity
of all original documents, and the conformity to authentic original documents of all documents submitted to us as copies (including pdfs).
As to all matters of fact, we have relied on the representations and statements of fact made in the documents so reviewed, and we have
not independently established the facts so relied on. This opinion letter is given, and all statements herein are made, in the context
of the foregoing.
Hogan Lovells US LLP is a limited liability partnership registered in the state of Delaware. “Hogan Lovells” is an international legal practice that includes Hogan Lovells US LLP and Hogan Lovells International LLP, with offices in: Alicante Amsterdam Baltimore Beijing Birmingham Boston Brussels Colorado Springs Denver Dubai Dusseldorf Frankfurt Hamburg Hanoi Ho Chi Minh City Hong Kong Houston Johannesburg London Los Angeles Luxembourg Madrid Mexico City Miami Milan Minneapolis Monterrey Munich New York Northern Virginia Paris Philadelphia Rome San Francisco São Paulo Shanghai Silicon Valley Singapore Sydney Tokyo Warsaw Washington, D.C. Associated Offices: Budapest Jakarta Riyadh Shanghai FTZ Ulaanbaatar. Business Service Centers: Johannesburg Louisville. Legal Services Center: Berlin. For more information see www.hoganlovells.com
Board of Trustees LXP Industrial Trust | - 2 - | November 13, 2023 |
For purposes of this opinion letter, we
have assumed that (i) the issuance, sale, amount and terms of the Notes have been duly authorized and established by proper action of
the Board of Trustees of the Company or a duly authorized committee of such board consistent with the procedures and terms described in
the Registration Statement and in accordance with the Company’s declaration of trust and bylaws and applicable Maryland corporate
law, in a manner that does not violate any law, government or court-imposed order or restriction or agreement or instrument binding on
the Company or otherwise impair the legal or binding nature of the obligations represented by the applicable Notes, (ii) the Trustee under
the Indenture, to be supplemented by the Supplemental Indenture, upon execution of the Supplemental Indenture, will have all requisite
power and authority under all applicable laws, regulations and governing documents to execute, deliver and perform its obligations under
the Indenture and the Supplemental Indenture and has complied with all legal requirements pertaining to its status as such status relates
to the Trustee’s right to enforce the Indenture and the Supplemental Indenture against the Company, (iii) the Trustee has authorized,
executed and delivered the Indenture and has authorized and will duly execute and deliver the Supplemental Indenture, (iv) the Trustee
is validly existing and in good standing in all necessary jurisdictions, (v) the Indenture constitutes and, upon its execution, the Supplemental
Indenture will constitute valid and binding obligations, enforceable against the Trustee in accordance with their terms, (vi) there has
been no, and in the case of the Supplemental Indenture, there will be no mutual mistake of fact or misunderstanding, or fraud, duress
or undue influence, in connection with the negotiation, execution or delivery of the Indenture or the Supplemental Indenture, and the
conduct of all parties to the Indenture and, upon execution, the Supplemental Indenture has complied and will comply with any requirements
of good faith, fair dealing and conscionability, and (vii) there are, have been and will be no agreements or understandings among the
parties, written or oral, and there is, has been and will be no usage of trade or course of prior dealing among the parties (and no act
or omission of any party) that would, in either case, define, supplement or qualify the terms of the Indenture or, upon its execution,
the Supplemental Indenture. We also have assumed the validity and constitutionality of each relevant statute, rule, regulation and agency
action covered by this opinion letter.
This opinion letter is based as to matters
of law solely on the applicable provisions of the laws of the State of New York (but not including any laws, statutes, ordinances, administrative
decisions, rules or regulations of any political subdivision below the state level), as currently in effect. We express no opinion herein
as to any other statutes, rules or regulations (and in particular, we express no opinion as to any effect that such other statutes, rules
or regulations may have on the opinion expressed herein).
Based upon, subject to and limited by the
foregoing, we are of the opinion that, following (i) receipt by the Company of the consideration therefor specified in the Underwriting
Agreement dated November 2, 2023, by and among the Company, Wells Fargo Securities, LLC, J.P. Morgan Securities LLC, Mizuho Securities
USA LLC and each of the other underwriters named in Schedule I thereto and (ii) the due execution, authentication, issuance and delivery
of the Notes pursuant to the terms of the Indenture and the Supplemental Indenture, and as contemplated by the Prospectus Supplement,
the Notes will constitute valid and binding obligations of the Company.
The opinion expressed above with respect
to the valid and binding nature of obligations may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other
laws affecting creditors’ rights (including, without limitation, the effect of statutory and other law regarding
Board of Trustees LXP Industrial Trust | - 3 - | November 13, 2023 |
fraudulent conveyances, fraudulent transfers
and preferential transfers) and by the exercise of judicial discretion and the application of principles of equity, good faith, fair dealing,
reasonableness, conscionability and materiality (regardless of whether the Notes are considered in a proceeding in equity or at law).
This opinion letter has been prepared for
use in connection with the filing by the Company of a Current Report on Form 8-K on the date hereof (the “Form 8-K”),
which Form 8-K will be incorporated by reference into the Registration Statement and the Prospectus Supplement, and speaks as of the date
hereof. We assume no obligation to advise of any changes in the foregoing subsequent to the delivery of this opinion letter.
We hereby consent to the filing of this
opinion letter as Exhibit 5.1 to the Form 8-K, and to the reference to this firm under the caption “Legal Matters” in the
Prospectus Supplement constituting a part of the Registration Statement. In giving this consent, we do not thereby admit that we are an
“expert” within the meaning of the Act.
Very truly yours,
/s/ HOGAN LOVELLS US LLP
HOGAN LOVELLS US LLP
Exhibit 5.2
|
750 E. PRATT STREET SUITE 900 BALTIMORE,
MD 21202
T 410.244.7400 F 410.244.7742
www.Venable.com |
November 13, 2023
LXP Industrial Trust
One Penn Plaza, Suite 4015
New York, NY 10119
Re: Registration Statement on Form S-3 (Registration
No. 333-253297)
Ladies and Gentlemen:
We have served as Maryland counsel to LXP Industrial
Trust, a Maryland real estate investment trust (the “Company”), in connection with certain matters of Maryland law arising
out of the registration of the issuance of up to $300,000,000 in aggregate principal amount of the Company’s 6.750% Senior Notes
due 2028 (the “Notes”), covered by the above-referenced Registration Statement, and all amendments thereto (the “Registration
Statement”), filed by the Company with the U.S. Securities and Exchange Commission (the “Commission”) under the Securities
Act of 1933, as amended (the “1933 Act”).
In connection with our representation of the Company,
and as a basis for the opinion hereinafter set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction,
of the following documents (hereinafter collectively referred to as the “Documents”):
1.
The Registration Statement and the related form of prospectus included therein and the supplement thereto, substantially in the
form in which it was transmitted to the Commission under the 1933 Act;
2.
The Declaration of Trust of the Company, certified by the State Department of Assessments and Taxation of Maryland (the “SDAT”);
3.
The Third Amended and Restated Bylaws of the Company, certified as of the date hereof by an officer of the Company;
4.
A certificate of the SDAT as to the good standing of the Company, dated as of a recent date;
5.
The Indenture, dated as of May 9, 2014, as amended and supplemented by the First Supplemental Indenture, dated as of May 20, 2014,
the Second Supplemental Indenture, dated as of August 28, 2020, the Third Supplemental Indenture, dated as of August 30, 2021, and the
Fourth Supplemental Indenture, dated as of November 13, 2023 (collectively, the “Indenture”), each among the Company, the
guarantors named therein and U.S. Bank Trust Company, National Association, as trustee, relating to the Notes;
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LXP Industrial Trust November 13, 2023 Page 2 |
6.
Resolutions of the Board of Trustees of the Company relating to, among other things, (a) the sale and issuance of the Notes and
(b) the Indenture, certified as of the date hereof by an officer of the Company;
7.
A certificate executed by an officer of the Company, dated as of the date hereof; and
8.
Such other documents and matters as we have deemed necessary or appropriate to express the opinion set forth below, subject to
the assumptions, limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed
the following:
1.
Each individual executing any of the Documents, whether on behalf of such individual or another person, is legally competent to
do so.
2.
Each individual executing any of the Documents on behalf of a party (other than the Company) is duly authorized to do so.
3.
Each of the parties (other than the Company) executing any of the Documents has duly and validly executed and delivered each of
the Documents to which such party is a signatory, and such party’s obligations set forth therein are legal, valid and binding and
are enforceable in accordance with all stated terms.
4. All
Documents submitted to us as originals are authentic. The form and content of all Documents submitted to us as unexecuted drafts do not
differ in any respect relevant to this opinion from the form and content of such Documents as executed and delivered. All Documents submitted
to us as certified or photostatic copies conform to the original documents. All signatures on all Documents are genuine. All public records
reviewed or relied upon by us or on our behalf are true and complete. All representations, warranties, statements and information contained
in the Documents are true and complete. There has been no oral or written modification of or amendment to any of the Documents, and there
has been no waiver of any provision of any of the Documents, by action or omission of the parties or otherwise.
The phrase “known to us” is limited
to the actual knowledge, without independent inquiry, of the lawyers currently at our firm who have performed legal services in connection
with the issuance of this opinion.
Based upon the foregoing, and subject to the assumptions,
limitations and qualifications stated herein, it is our opinion that:
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LXP Industrial Trust November 13, 2023 Page 3 |
1. The
Company is a real estate investment trust duly formed and validly existing under and by virtue of the laws of the State of Maryland and
is in good standing with the SDAT.
2. The
issuance, execution and delivery of the Notes have been duly authorized by all necessary trust action of the Company.
3. The
execution and delivery of the Indenture have been duly authorized by all necessary trust action of the Company. The Indenture has been
duly executed and, so far as is known to us, delivered by the Company.
The foregoing opinion is limited to the laws of the State
of Maryland and we do not express any opinion herein concerning any federal law or the laws of any other jurisdiction. We express no opinion
as to the applicability or effect of federal or state securities laws, including the securities laws of the State of Maryland, federal
or state laws regarding fraudulent transfers or the laws, codes or regulations of any municipality or other jurisdiction. We note that
the Indenture provides that it shall be governed by the laws of the State of New York. To the extent that any matter as to which our opinion
is expressed herein would be governed by the laws of any jurisdiction other than the State of Maryland, we do not express any opinion
on such matter. The opinion expressed herein is subject to the effect of any judicial decision which may permit the introduction of parol
evidence to modify the terms or the interpretation of agreements.
The opinion expressed herein is limited to the matters
specifically set forth herein and no other opinion shall be inferred beyond the matters expressly stated. We assume no obligation to supplement
this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed
herein after the date hereof.
This opinion is being furnished to you for submission
to the Commission as an exhibit to the Company’s Current Report on Form 8-K relating to the Notes (the “Current Report”),
which is incorporated by reference in the Registration Statement. We hereby consent to the filing of this opinion as an exhibit to the
Current Report and the said incorporation by reference and to the use of the name of our firm therein. In giving this consent, we do not
admit that we are within the category of persons whose consent is required by Section 7 of the 1933 Act.
Very truly yours,
/s/ Venable LLP
v3.23.3
Cover
|
Nov. 13, 2023 |
Document Type |
8-K
|
Amendment Flag |
false
|
Document Period End Date |
Nov. 13, 2023
|
Entity File Number |
1-12386
|
Entity Registrant Name |
LXP
INDUSTRIAL TRUST
|
Entity Central Index Key |
0000910108
|
Entity Tax Identification Number |
13-3717318
|
Entity Incorporation, State or Country Code |
MD
|
Entity Address, Address Line One |
One
Penn Plaza, Suite 4015
|
Entity Address, City or Town |
New York
|
Entity Address, State or Province |
NY
|
Entity Address, Postal Zip Code |
10119-4015
|
City Area Code |
(212)
|
Local Phone Number |
692-7200
|
Written Communications |
false
|
Soliciting Material |
false
|
Pre-commencement Tender Offer |
false
|
Pre-commencement Issuer Tender Offer |
false
|
Entity Emerging Growth Company |
false
|
Shares of beneficial interest, par value $0.0001 per share, classified as Common Stock |
|
Title of 12(b) Security |
Shares
of beneficial interest, par value $0.0001 per share, classified as Common Stock
|
Trading Symbol |
LXP
|
Security Exchange Name |
NYSE
|
6.50% Series C Cumulative Convertible Preferred Stock, par value $0.0001 per share |
|
Title of 12(b) Security |
6.50%
Series C Cumulative Convertible Preferred Stock, par value $0.0001 per share
|
Trading Symbol |
LXPPRC
|
Security Exchange Name |
NYSE
|
X |
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LXP Industrial (NYSE:LXP-C)
過去 株価チャート
から 8 2024 まで 9 2024
LXP Industrial (NYSE:LXP-C)
過去 株価チャート
から 9 2023 まで 9 2024