Exhibit 3.14
EXECUTION COPY
FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
OF
LEPERCQ CORPORATE INCOME FUND II L.P.
This FIRST AMENDMENT TO SECOND AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP OF LEPERCQ CORPORATE INCOME FUND II L.P. (this
"Amendment") is made and entered into effective as of June 19, 2003 by and among
the entities and individuals signatory hereto.
A. Lepercq Corporate Income Fund II L.P., a Delaware
limited partnership (the "Partnership") is governed by that certain Second
Amended and Restated Agreement of Limited Partnership, dated effective as of
August 27, 1998 (the "Agreement"). Unless otherwise defined, all capitalized
terms used herein shall have such meaning ascribed such terms in the Agreement.
B. Lexington Corporate Properties Trust, a Maryland real
estate investment trust ("LXP") is the sole unitholder of each of (i) Lex GP-1
Trust, a Delaware statutory trust ("Lex GP") and (ii) Lex LP-1 Trust, a Delaware
statutory trust ("Lex LP"). Lex GP is the general partner of the Partnership,
Lepercq Corporate Income Fund L.P., a Delaware limited partnership, and Net 3
Acquisition L.P., a Delaware limited partnership (collectively, the "Operating
Partnerships"). Lex LP is the Initial Limited Partner of each of the Operating
Partnerships.
C. As of the date hereof, LXP has completed the offer
and sale (the "Offering") to the Underwriters (as defined in the Underwriting
Agreement, dated as of June 10, 2003, by and among Bear, Xxxxxxx & Co. Inc.,
X.X. Xxxxxxx & Sons, Inc., Xxxxxxx Xxxxx, Xxxxxxxx Xxxxxxxx Xxxxxx, Advest,
Inc., BB&T Capital Markets and Xxxxxx, Xxxxx Xxxxx Incorporated, on the one
hand, and LXP and the Operating Partnerships, on the other) of 3,160,000
preferred shares of beneficial interest, classified as 8.05% Series B Cumulative
Redeemable Preferred Stock, par value $0.0001 per share, of LXP ("Preferred
Shares"), pursuant to a prospectus supplement dated June 10, 2003 and the
accompanying base prospectus dated April 10, 1998.
D. The Preferred Shares carry a cumulative preferred
dividend and liquidation preference further described in the Articles
Supplementary of LXP, dated as of June 17, 2003.
E. Pursuant to Section 4.2 of the Agreement, the
Partnership may issue additional partnership interests to LXP and its affiliates
in connection with the issuance of shares by LXP provided LXP makes a capital
contribution to the Partnership of the proceeds raised in connection with such
issuance.
F. LXP has agreed to contribute a portion of the
proceeds of the Offering to the Partnership in exchange for Series B Preferred
Operating Partnership Units ("Preferred OP Units") in the Partnership to be
issued to an affiliate of LXP, Lex LP.
G. As required by Section 4.2 of the Agreement, the
Preferred OP Units have designations, preferences and other rights such that the
economic interests are substantially similar to the designations, preferences
and other rights of the Preferred Shares, as further described and set forth in
the Certificate of Designation for the Preferred OP Units attached hereto as
Annex I (the "Certificate of Designation").
H. As of the date hereof, and pursuant to the terms of
the Agreement, the parties hereto desire to amend the Agreement to reflect the
issuance of 567,961 Preferred OP Units to Lex LP as well as all other changes in
the ownership of Partnership Units since the date of the Agreement by amending
and restating Exhibit A to the Agreement and (ii) the admission of Lex LP as a
Limited Partner holding Preferred OP Units (a "Preferred Limited Partner").
NOW, THEREFORE, the undersigned, being desirous of
effectuating the foregoing and amending the Agreement accordingly, hereby enter
into this Amendment and amend the Agreement as follows:
1. Certificate of Designation; Preferred Limited
Partner. The Agreement is hereby amended to the extent necessary to reflect that
the rights, preferences and privileges of the Preferred OP Units and the
Preferred Limited Partner, shall be as set forth in the Certificate of
Designation which is hereby attached as Annex I to the Agreement and made a part
hereof. To the extent there is a conflict between the terms of the Certificate
of Designation and the terms of the Agreement, the terms of the Certificate of
Designation shall control.
2. Exhibit A. Exhibit A to the Agreement is deleted in
its entirety and replaced with Exhibit A hereto.
3. Miscellaneous. Except as amended hereby, the
Agreement shall remain unchanged and in full force and effect.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment on behalf of the Partnership in accordance with the provisions of
Section 14.1 of the Agreement as of the date first written above.
GENERAL PARTNER:
LEX GP-1 TRUST
By: /s/ X. Xxxxxx Eglin
-------------------------------------
Name: X. Xxxxxx Eglin
Title: Vice President
EXHIBIT A
PARTNERS' CONTRIBUTIONS AND PARTNERSHIP INTERESTS
Capital Partnership Percentage Redemption
Name of Partner Contribution Units Interest Exemption Date
--------------------------------------------------------------------------------------------------------------
GENERAL PARTNER
Lex GP 1 Trust $ 100 35411 0.64561% N/A
LIMITED PARTNER
Lex LP 1 Trust $ 100 3443735 62.78539% N/A
100% (of
Lex LP-1 Trust $ 14,199,025 567961 Series B) N/A
SPECIAL LIMITED PARTNERS
Xxxxxxx X. Xxxxxxx -- 3354 0.06115% N/A
The LCP Group, L.P. -- 14914 0.27191% N/A
Xxxxx X. Xxxx -- 2162 0.03941% X/X
X. Xxxxxx Xxxxxxx -- 00000 0.39094% N/A
Xxxxxxx X. Xxxxx -- 8241 0.15025% N/A
Xxxxxx X. Xxxxxxx -- 4605 0.08396% N/A
PHOENIX LIMITED PARTNER 15-Jan-99
E. Xxxxxx Xxxxxxx G.P. interest 175306 3.19614%
The E. Xxxxxx Xxxxxxx Family, L.P. 40000 0.72927%
(Units
XXXXXX LIMITED PARTNERS Contributed) 1-Sep-99
AGR Trust 2 6672 0.12164%
Xxxxxxx, Xxxxxx X. 1 3336 0.06082%
Xxxxxxx, Xxxxxx X. III 1 3336 0.06082%
Xxxxxx, E. Xxx 1 3336 0.06082%
Xxxxxxxxxx, Xxxxxxx X. & Xxxxx 1 3336 0.06082%
Xxxx, Xxxxx X.(Jr.) & Xxxxx X. 1 3336 0.06082%
Xxxxxxxx, Xxxx X. Xx. 1 3336 0.06082%
Xxxxxxx, Xxxx 0.5 1668 0.03041%
Xxxxxxxx, Xxxx X. 1 3336 0.06082%
Xxxxxx, Xxxx X. 0.5 1668 0.03041%
PARTNERS' CONTRIBUTIONS AND PARTNERSHIP INTERESTS
Capital Partnership Percentage Redemption
Name of Partner Contribution Units Interest Exemption Date
--------------------------------------------------------------------------------------------------------------
Xxxx, Xxxxxxx X. & Xxxxxxxx X. 1 3336 0.06082%
Xxxxxx, Xxxxxx 1 3336 0.06082%
Xxxxxx, Xxxxxxx X. 1 3336 0.06082%
Xxxxxxx, Xxxxxx X. & Xxxxxxxx X. 1 3336 0.06082%
Xxxxxxxx, Xxxx X. Revocable Intervivos
Trust 1 3336 0.06082%
Xxxxxxxx, Xxxxxxxx X. 0.5 1668 0.03041%
Xxxx, Xxxx X. 1 3336 0.06082%
Xxxxxx, Xxxxx X. 0.5 1668 0.03041%
Xxxx, Xxxx & Xxxxxx 1 3336 0.06082%
Xxxxx, Xxxxx X. 1 3336 0.06082%
Xxxxxxx, Xxxxxxx X. 1 3336 0.06082%
Xxxxxxx, Xxxx X. & Xxxxx 1 3336 0.06082%
Xxxxxxx, Xx 1 3336 0.06082%
Xxxxxxxxx, Xxxxx X. 0.5 1668 0.03041%
Xxxxxxxx, Xxxxxxx X. 1 3336 0.06082%
Xxxx, Xxxxxx X. 1 3336 0.06082%
Xxxx, Xxx Long & Xxxx Xxx 0.5 1668 0.03041%
Xxxxxx, Xxxxxx X. 0.5 1668 0.03041%
Xxxxx, Xxxxx 1 3336 0.06082%
Xxxxx, Xxxxxxx X. & Xxxxxx X. 1 3336 0.06082%
Xxxxxxx (Xxxxxx X. Xx.)Revocable Trust 1 3336 0.06082%
Xxxxxx, Xxxxxx X. 0.5 1668 0.03041%
Croft (Xxxxx X.) Trust dtd 6/2/89 1 3336 0.06082%
Xxxx, Xxxxx (Jr.) & Xxxxxxxx 0.5 1668 0.03041%
Xxxxx, Xxxxxx X. 1 3336 0.06082%
Dafcik (Xxxxxxx X.) Trust 1 3336 0.06082%
Dash, Xxx 1 3336 0.06082%
A-2
PARTNERS' CONTRIBUTIONS AND PARTNERSHIP INTERESTS
Capital Partnership Percentage Redemption
Name of Partner Contribution Units Interest Exemption Date
--------------------------------------------------------------------------------------------------------------
Xxxxx, Xxxxxxx X. 1 3336 0.06082%
XxXxxx, Xxxxxxx X. 1 3336 0.06082%
Xxxxx, Xxxx 3336 0.06082%
DMK Trust 1 3336 0.06082%
Xxxxxx, Xxxxxxx X. 0.5 1668 0.03041%
Xxxx, Xxxxx X. 1 3336 0.06082%
Xxxxxxxx, Xxxxx X. & Xxxxx X. 1 3336 0.06082%
Edelman (Xxxx) Trust 1 3336 0.06082%
Xxxxxx, Xxxxxxxxx 0.333 1111 0.02026%
Xxxxxxxxx, Xxxxxxx 1 3336 0.06082%
Xxxxxxx, (Xxxx X. Xx.) Ins. Trust 1 3336 0.06082%
Xxxxx, Xxxxxx X. & Xxxxxx X. 1 3336 0.06082%
Xxxxxxx, Xxxxx X. & Xxxxx X. 1 3336 0.06082%
Xxxxxxx, Xxxxxxx X. 1 3336 0.06082%
Xxxxxxxx, Xxxxxxx X. & Xxxxx 1 3336 0.06082%
Xxxx, Xxxxx X. 0.5 1668 0.03041%
Xxxxx, Xxxx X. & Xxxxx 1 3336 0.06082%
Xxx, Xxxxxxx & Xxxxxx 1 3336 0.06082%
Xxxxxxxx (Xxxxx X.) Trust u/a/d 5/7/90 1 3336 0.06082%
Xxxxxxx, Xxxxxx 1 3336 0.06082%
Xxxxx, Xxxx X. 1 3336 0.06082%
Gold, Xxxxxx X. 1 3336 0.06082%
Goldfinger, Xxxxx X. Trust 1 3336 0.06082%
Xxxxxxx, Xxxxxx X. & Xxxxxxxx X. 1 3336 0.06082%
The LCP Group 1 3336 0.06082%
Xxxxxx, Xxxxxx X. 1 3336 0.06082%
Xxxxxxxx, Xxxxxxx X. 1 3336 0.06082%
A-3
PARTNERS' CONTRIBUTIONS AND PARTNERSHIP INTERESTS
Capital Partnership Percentage Redemption
Name of Partner Contribution Units Interest Exemption Date
--------------------------------------------------------------------------------------------------------------
Xxxxxxxxx, Xxxxx X. & Xxxxx X. 1 3336 0.06082%
Xxxxxxxx, Xxxxxxx X. & Xxxxxxxxx 1 3336 0.06082%
Xxxxxx, Xxxxx X. 0.5 1668 0.03041%
Hanger, Xxxxxx X. 0 0000 0.00000%
Xxxxxxx, Xxxxxx X. 1 3336 0.06082%
Xxxxx, Drexwell & Xxxxx 4 13343 0.24327%
Xxxx, Xxxxxx X. 1 3336 0.06082%
HMSP Realty Co. 1 3336 0.06082%
Houston, Xxxxxx X. 1 3336 0.06082%
Xxxxxxx (Xxxx X.) Trust 1 3336 0.06082%
Xxxx, Xxxxxxx 0.5 1668 0.03041%
Xxxxxx, Xxxxxxx X. 1 3336 0.06082%
Irmscher, Xxxxx X. 1 3336 0.06082%
Ito, Xxxxxx Xxxxxx 0.5 1668 0.03041%
Xxxxxxx, Xxxxxxxxxx 0.333 1111 0.02026%
Xxxxxxx, Xxxxxxx X 1 3336 0.06082%
Xxxxxxx, Xxxxxxx X. & Xxxx X. 1 3336 0.06082%
Xxxxx (Xxxx X.) Rev. Trust uad 9/24/91 1 3336 0.06082%
Xxxxxx, Xxxxx X. 1 3336 0.06082%
Xxxxxx, Xxxxxx 1 3336 0.06082%
Xxxxxxxxx, Xxxxxx 1 3336 0.06082%
Xxxxxxx (Xxxxxx & Xxxxxxxx) Rev Trust 1 3336 0.06082%
Keto, Xxxxxx X. 1 3336 0.06082%
Xxxxxxx, Xxxxxxx X. 1 3336 0.06082%
Xxxxxxx, Xxxxxxxx X. 3 10007 0.18245%
Xxxxxxx, Xxxxxxx X. 8 26686 0.48653%
Xxxxxxx, Xxxxxx 3 10007 0.18245%
A-4
PARTNERS' CONTRIBUTIONS AND PARTNERSHIP INTERESTS
Capital Partnership Percentage Redemption
Name of Partner Contribution Units Interest Exemption Date
--------------------------------------------------------------------------------------------------------------
Xxxxxxxx, Xxxxx X. 1 3336 0.06082%
Xxxxxx, Xxxxx 1 3336 0.06082%
Xxx, Xxxxxx X. 0.5 1668 0.03041%
Xxx, Xxxxxxx X. 1 3336 0.06082%
Leibsohn, The Family Trust 1 3336 0.06082%
Lesser, Xxxxxx X. 1.5 5004 0.09123%
Lesser, Xxxxxx X. 0.5 1668 0.03041%
Xxxxxx (Xxxxxx & Xxxxx) Trust 1 3336 0.06082%
Xxxx, Xxxxx X. & Xxxx X. 1 3336 0.06082%
Xxxx, Xxxxx 0.5 1668 0.03041%
Xxxxxxx, Xxxx X. Xx. 1 3336 0.06082%
Love, Xxxxxxxxx 1 3336 0.06082%
Xxxxx, Xxxxxxx Xxxxxxxxx 1 3336 0.06082%
Xxxxxxx, Xxxxxxxxxx X. 1 3336 0.06082%
Markstein Trust 1 3336 0.06082%
Xxxxxxxx, Xxxxxx 0.5 1668 0.03041%
Xxxxxxxx, Xxxxxxx X. 0.5 1668 0.03041%
XxXxxxx, Living Trust 0.5 1668 0.03041%
XxXxxxx, Xxxxxx X. 1 3336 0.06082%
XxXxxxxx, Xxxxx X. 0.5 1668 0.03041%
XxXxxxx, Xxxxx X. 0.5 1668 0.03041%
XxXxx, Xxxxx X. 0.5 1668 0.03041%
Xxxx, Xxxxxx X. 0.5 1668 0.03041%
Xxxx, Xxxx 0.5 1668 0.03041%
Xxxxxxx, Xxxxxx X. 0.5 1668 0.03041%
Oceans Unlimited Partnership 1 3336 0.06082%
Xxxxxx, Xxxx X. 1 3336 0.06082%
A-5
PARTNERS' CONTRIBUTIONS AND PARTNERSHIP INTERESTS
Capital Partnership Percentage Redemption
Name of Partner Contribution Units Interest Exemption Date
--------------------------------------------------------------------------------------------------------------
O'Meallie, Xxxxxxxx X. 1 3336 0.06082%
Xxxxxx, Xxxxxx X. 0.5 1668 0.03041%
Otsuka, Xxxxxxx X. 1 3336 0.06082%
Xxxxx, Chupendra & Indira 1 3336 0.06082%
Xxxx, Xxxxxxx X. Xx. 1 3336 0.06082%
Xxxxxxxxxx, Xxxxx 3336 0.06082%
Xxxxxxxx, Xxxxxx 0.5 1668 0.03041%
Xxxxxxx, Xxxxxx 1 3336 0.06082%
Xxxx Xxxxxxx Irrevocable Trust 3336 0.06082%
Xxxxx, Xxxx X. & Xxx X. 1 3336 0.06082%
Xxxxx, Xxxxx X. 0.5 1668 0.03041%
Xxxxxxxx, Xxxxxx Revocable Asset
Management Trust 2 6672 0.12164%
Xxxxxxxxx, Xxxxxx X. 0.5 1668 0.03041%
Xxxxxxxxx, Xxxxxxxx 1 3336 0.06082%
Xxxx, Xxxx X. Xx. 2 6672 0.12164%
Xxxxxxx, Xxxxxxx X. Xx. 0.5 1668 0.03041%
Xxxxxxx Family Trust 1 3336 0.06082%
Xxxxxx (Xxxxxxx X.) Trust 1 3336 0.06082%
Xxxxxx, X. Xxxxx 1 3336 0.06082%
Xxxxxxxx, Xxxxxx X. 3 10007 0.18245%
Xxxxxxx, Xxxxxxx X. 1 3336 0.06082%
Xxxxxxx, Xxxxxxx X.& Xxxxxxxx X. 1 3336 0.06082%
Xxxxx, Xxxxx X. 1 3336 0.06082%
Xxxxx, Xxxxxx 5 16679 0.30409%
Xxxxxx, Xxxx 1 3336 0.06082%
Xxxxx, Xxxxxx 1 3336 0.06082%
St. Xxxxxx, M. Xxxxxx Xx. 1 3336 0.06082%
A-6
PARTNERS' CONTRIBUTIONS AND PARTNERSHIP INTERESTS
Capital Partnership Percentage Redemption
Name of Partner Contribution Units Interest Exemption Date
--------------------------------------------------------------------------------------------------------------
Xxxxx, Xxxxxx 0.5 1668 0.03041%
Xxxxx, Xxxx Revocable Trust 0.5 1668 0.03041%
Xxxxx, Xxxxxx X. 0.5 1668 0.03041%
Xxxxxxxxx (Xxxx) Marital Trust... 1 3336 0.06082%
Xxxxxxxxxxx, Xxxx X. 1 3336 0.06082%
Xxxxxxxx, Xxxxxxx Xxxx 0.333 1111 0.02026%
Travis, Sonaia 1 3336 0.06082%
UBATCO & CO. 0.5 1668 0.03041%
Xxxxxx, Xxxxxx 1 3336 0.06082%
Voute, P. Xxxxxxx 1 3336 0.06082%
Xxxxxxxx, Xxxxxx X. 1 3336 0.06082%
Xxxxxxxxx, Xxxxxxx 1 3336 0.06082%
Xxxxxxxxx, Xxxxxx X. 1 3336 0.06082%
Xxxxxx, Xxxx X. 1 3336 0.06082%
Xxxxxx, Xxxxx 1 3336 0.06082%
Xxxxxxxxxx, Xxxxxx X. 1 3336 0.06082%
Worthington (Xxxxxxx Xxxx) Special Trust 1 3336 0.06082%
Xxxxxx, Xxxxxx X. 1 3336 0.06082%
Wu, Yen Bin & Xxxx Eng 0.5 1668 0.03041%
Xxxxx, Xxxxxx & Jo Xxxx 1 3336 0.06082%
Xxxx, Xxxxxx & Muna 1 3336 0.06082%
Xxxxxx, Xxxxxxx & Xxxxxx 1 3336 0.06082%
Roskind, E. Xxxxxx 0.302 22300 0.40657%
Xxxx, Xxxxx X. 0.1125 1575 0.02872%
Xxxxx, Xxxxxxx X. 0.121 40296 0.73467%
Xxxxxxx, Xxxxxx X. 0.095 53015 0.96656%
Xxxxxxxx, Xxxxx X. 0.078 35394 0.64530%
A-7
PARTNERS' CONTRIBUTIONS AND PARTNERSHIP INTERESTS
Capital Partnership Percentage Redemption
Name of Partner Contribution Units Interest Exemption Date
--------------------------------------------------------------------------------------------------------------
Xxxxxxxxxx, Xxxxx X. 0.01 33 0.00060%
The LCP Group, L.P. 373116 6.80257%
Xxxxxxxx (Xxxxxxx) Trust dtd. 4/5/90 35214 0.64201%
Roskind, E. Xxxxxx 2001 Trust 33333 0.60772%
Third Lero Corp. 3404 0.06206%
A-8
As a result of Lepercq Corporate Income Fund II L.P. (the
"Partnership") and Lexington OC LLC ("LOC") having entered into a Contribution
Agreement with Xxxxxxxx Properties #14 LLC, an Indiana limited liability company
("Xxxxxxxx #14") and Xxxxxxxx Properties #16 LLC, an Indiana limited liability
company ("Xxxxxxxx #16," collectively with Xxxxxxxx #14, the "Xxxxxxxx Entities"
or individually a "Xxxxxxxx Entity") on the date hereof, pursuant to which at
the direction of the Partnership, LOC acquired fee title to certain real
property commonly known as 191 and 000 Xxxxxxxxx Xxxxx in Hebron Business Center
in Hebron, Ohio and the building improvements thereon (the "Property") from the
Xxxxxxxx Entities, subject to Seller's Indebtedness (as defined in the Agreement
for Purchase and Sale, dated September 20, 2001, between Xxxxxxxx Entities and
Lexington Corporate Properties Trust in respect of the Property (the "Purchase
Agreement")), the General Partner pursuant to Section 4.2A and Section 14.1.B(2)
of the Partnership Agreement (defined below) has authorized the issuance of
Partnership Units to the Xxxxxxxx Entities. The Xxxxxxxx Entities shall receive
the number of Partnership Units specified in the Schedule. For purposes of
applying the terms and conditions of the Partnership Agreement, the Xxxxxxxx
Entities shall be Partners of the Partnership with the rights and obligations of
Additional Limited Partners.
For purposes of Section 5.1 of the Partnership Agreement, the
Xxxxxxxx Entities shall be entitled to receive cash distributions with respect
to each Partnership Unit equal to the cash dividend payable with respect to each
share of Lexington Corporate Properties Trust ("LXP") common stock, determined
at the time of each quarterly distribution beginning with the distribution
payable to shareholders of record from and after the date hereof.
For purposes of Sections 6.1A and 6.1B of the Partnership
Agreement, allocations of Net Income and Net Loss by the Partnership generally
shall be made after giving effect to all allocations of taxable income to the
Xxxxxxxx Entities. Pursuant to the General Partner's authority in Section
14.1.B(2), Partnership taxable income shall be specially allocated to the
Xxxxxxxx Entities in an amount equal to, but not in excess of, all cash
distributions to the Xxxxxxxx Entities; provided, however, that the Xxxxxxxx
Entities shall be allocated taxable income as otherwise required in Exhibit B
and C of the Partnership Agreement; provided further, that with respect to
Exhibit C2.A.(1)(a) of the Partnership Agreement that in the case of the
Property, such items attributable thereto shall be allocated among the Partners
using the "traditional method" under Treasury Regulation Section 1.704-3(b)(1).
For purposes of Section 8.4 of the Partnership Agreement, on
the first anniversary of the Closing Date (as such term is defined in the
Purchase Agreement) and on each December 1, March 1, June 1 and September 1
thereafter (each a "Specified Redemption Date"), the Xxxxxxxx Entities shall
have the right (the "Xxxxxxxx Redemption Right") to require the Partnership to
redeem on a Specified Redemption Date the Partnership Units held by the Xxxxxxxx
Entities for the Redemption Amount to be delivered by the Partnership; provided,
however, that the Xxxxxxxx Entities must convert a number of Partnership Units
equal to at least the lesser of (i) 1,000 Partnership Units, or (ii) all of the
Partnership Units held by such Partner. The Xxxxxxxx Redemption Right shall be
exercised pursuant to a Notice of Redemption (substantially in the form of
A-9
Exhibits D-1 through D-3 modified to reflect the Xxxxxxxx Entities giving
notice) delivered to the General Partner and LXP on a Specified Redemption Date
by the Xxxxxxxx Entity who is exercising the redemption right (the "Xxxxxxxx
Redeeming Partner"). The Xxxxxxxx Redeeming Partner shall have no right, with
respect to any Partnership Units so redeemed, to receive any distributions paid
after the Specified Redemption Date. The Partnership covenants to cause the
registration of any LXP Common Stock issued in connection with a redemption in
such a manner as is required so that the shares of LXP Common Stock issued in
connection with such redemption are freely transferable. The Assignee of the
Xxxxxxxx Entities may exercise the redemption rights of the Xxxxxxxx Entities,
and the Xxxxxxxx Entities shall be deemed to have assigned such rights to such
Assignee and shall be bound by the exercise of such rights by such Assignee. In
connection with any exercise of such rights by such Assignee on behalf of the
Xxxxxxxx Entities, such Redemption Amount shall be delivered by the Partnership
directly to such Assignee and not to the Xxxxxxxx Entities.
The Partnership Units held by the Xxxxxxxx Entities shall be
subject to redemption by the Partnership if otherwise required by the terms of
the Partnership Agreement.
The Partnership hereby covenants not to dispose of its
interest in the Property or repay any of the Seller's Indebtedness with respect
to the Property (other than normal periodic payments of principal and other than
a refinancing that does not result in a reduction of the Seller's Indebtedness)
during the Tax Protection Period without the prior consent of the holders of
fifty one (51%) percent of the Partnership Units held by the Xxxxxxxx Entities,
except that the foregoing covenant shall not apply and no such consent shall be
required in the event of (a) a foreclosure of the Property and any subsequent
sale thereof by any lender or such lender's designee or assignee; (b) sale of
the Property by the Partnership after the disaffirmance or rejection of either
of (i) the Net Lease Agreement dated October 2, 1998, as amended by First
Amendment to Lease Agreement dated as of July 12, 1999, as amended by Second
Amendment to Lease Agreement dated as of March 2, 2001, as amended by Third
Amendment to Lease Agreement, dated as of October 16, 2001, between Xxxxxxxx
Properties #16, LLC and Xxxxx Corning in respect of the Property or (ii) the Net
Lease Agreement dated August 25, 1999, as amended by First Amendment to Net
Lease Agreement dated as of March 2, 2001 as amended by Second Amendment to
Lease Agreement, dated as of October 16, 2001, between Xxxxxxxx Properties #14,
LLC and Xxxxx Corning in respect of the Property; (c) a sale of the Property by
the Partnership if the Partnership determines that such disposition is necessary
to ensure its continued qualification as a real estate investment trust, or (d)
an exchange of the Property meeting the requirements of Section 1031 of the
Internal Revenue Code of 1986, as amended (the "Code") (Items a, b, c, and d
above are hereinafter referred to as the "Exempted Transactions"). In any event
in which the Partnership determines to dispose of the Property, the Partnership
agrees to use its best efforts to structure such a disposition as an exchange
that meets the requirements of Section 1031 of the Code.
LXP agrees to enter into a Guaranty Agreement with the
Partnership on the date the Xxxxxxxx Entities are admitted to the Partnership,
on terms reasonably
A-10
satisfactory to LXP and the Partnership, pursuant to which LXP shall guaranty
the obligations of the Partnership to pay the Redemption Amount on the Specified
Redemption Date. The Xxxxxxxx Redeeming Partner, LXP, the Partnership and the
General Partner shall treat the transaction between LXP and the Xxxxxxxx
Redeeming Partner as a sale of the Xxxxxxxx Redeeming Partner's Partnership
Units to LXP or the General Partner, as the case may be, for federal income tax
purposes. The Xxxxxxxx Redeeming Partner agrees to execute such documents as the
Partnership may reasonably require in connection with the issuance of REIT
shares upon exercise of the Xxxxxxxx Redemption Right.
"Non-Recourse Built-in Gain" shall mean gain recognized by the
Xxxxxxxx Entities under Section 731(a)(1) of the Code as a result of a deemed
distribution under Section 752(b) of the Code.
"Nonrecourse Debt" means the type of indebtedness which is
described in Treasury Regulation Section 1.752-1(a)(2), provided that if under
this Supplement such indebtedness of the Partnership is to be guaranteed by the
Xxxxxxxx Entities, then "Nonrecourse Debt" means the type of indebtedness which
would be described in Treasury Regulation Section 1.752-1(a)(2) but for any such
guarantee(s).
"Qualified Debt" means Nonrecourse Debt which also constitutes
"qualified nonrecourse financing" within the meaning of Section 465(b)(6) of the
Code.
"Required Debt Amount" means from time to time, as to the
Xxxxxxxx Entities, the amount of indebtedness of the Partnership which needs to
be allocated to the Xxxxxxxx Entities pursuant to Treasury Regulation Section
1.752 such that the Xxxxxxxx Entities will not recognize any Non-Recourse
Built-in Gain. The Required Debt Amount for the Xxxxxxxx Entities as of the date
of this Supplement is set forth on Exhibit A attached hereto. Such amount
(including any modification thereof pursuant to the immediately following
sentence) shall automatically change from time to time as a result of the
operations, allocations of taxable income and loss, and distributions made by
the Partnership. It is understood that the Required Debt Amount set forth on
Exhibit A is believed by the Xxxxxxxx Entities to be the requisite amount as of
the date hereof but until tax returns are completed for the Xxxxxxxx Entities
such amounts are not final, and after the date hereof, until April 25, 2002, the
Xxxxxxxx Entities may provide to the Partnership a different, then current
Required Debt Amount to reflect any such final determination, and thirty (30)
days after receipt thereof by the Partnership, Exhibit A shall be deemed amended
to reflect such other amount; provided that in no event shall such amount be
five percent (5%) more or less than the Required Debt Amount set forth on
Exhibit A.
"Tax Protection Period" shall mean the earlier of (i) the span
of time commencing on the date hereof and ending on the second (2nd) anniversary
thereof, or (ii) the date on which all of the Partnership Units issued to the
Xxxxxxxx Entities have been redeemed, sold or otherwise disposed of in other
than a non-taxable disposition.
In the event the Partnership (or any entity which obtained the
Property directly or indirectly from the Partnership in a fully or partially
non-taxable transaction)
A-11
intends to repay or refinance any indebtedness of the Partnership or any such
other entity secured by the Property (or allocated to the Property as
contemplated below) or which indebtedness has been guaranteed (in part) by the
Xxxxxxxx Entities (other than normal periodic payments of principal or a
refinancing which does not result in a reduction of such indebtedness), the
Partnership shall notify the Xxxxxxxx Entities prior to engaging in any such
repayment or refinancing, which notice shall include the Partnership's good
faith estimate of the amount of the reduction in the Partnership's liabilities
that will be allocated to the Xxxxxxxx Entities for inclusion in its tax basis
pursuant to Section 752 of the Code as a result of such repayment or
refinancing. The Partnership shall include in its notice how it intends to
provide for compliance with this Section. Any such notice shall be given as soon
as reasonably possible before a proposed repayment or refinancing but in any
event at least fifteen (15) days prior to any such repayment or refinancing.
To the extent the amounts allocated or to be allocated
pursuant to Treasury Regulation 1.752-3(a) are not sufficient to result in the
Xxxxxxxx Entities receiving an allocation of Qualified Debt at least equal to
the Required Debt Amount, the Partnership shall be obliged to provide the
Xxxxxxxx Entities with the opportunity to make a so-called "bottom-up" guarantee
of either (m) new secured Qualified Debt of the Partnership fulfilling the
requirements set forth immediately below, (n) new unsecured, unsubordinated
Qualified Debt of the Partnership or (o) if no debt of the Partnership under
clauses (m) or (n) is either then being incurred or such debt does not meet the
other requirements of this paragraph applicable to any such debt, existing
secured or unsecured Qualified Debt of the Partnership, but only if the Xxxxxxxx
Entities are provided sufficient evidence of the validity under applicable law
of a guarantee thereof made pursuant to this Supplement. In all events under
this paragraph, the general partner(s) of the Partnership shall be exculpated
under the applicable loan documents and no other partner of the Partnership, or
any affiliate of any partner (general or limited), shall be liable for any
portion of any indebtedness described in this paragraph to be guaranteed by the
Xxxxxxxx Entities. Any such debt of the Partnership so guaranteed by the
Xxxxxxxx Entities for which the Xxxxxxxx Entities are allocated a share of the
Partnership's indebtedness under Treasury Regulation Section 1.752-2 is herein
referred to as "Guaranteed Debt".
The requirements for Qualified Debt under subclause (m) of the
preceding paragraph above shall be that the principal amount of such Qualified
Debt at the time of the making of any proposed guarantee does not exceed a
seventy percent (70%) loan to fair market value ratio and has a commercially
reasonable debt service coverage ratio, and the portion of such Qualified Debt
to be guaranteed by the Xxxxxxxx Entities pursuant hereto does not exceed the
lesser of (1) the bottom sixty percent (60%) of the stated principal amount of
the Qualified Debt or (2) the bottom thirty-five percent (35%) of the fair
market value of the encumbered property, the bottom portion being the amount
such that if the encumbered property were foreclosed upon, the Xxxxxxxx Entities
would not be required to pay or perform under such guarantee unless the proceeds
from the foreclosure sale were less than sixty percent (60%) (or such lesser
percentage of the stated principal in the event a lower limit is set in the
preceding paragraph) of the stated principal amount of the Qualified Debt. If
any Guaranteed Debt is unsecured debt of the Partnership, the portion to be
guaranteed shall be the bottom twenty-five percent (25%) of the stated principal
amount of such unsecured debt.
A-12
If and to the extent a Xxxxxxxx Entity redeems, sells or
otherwise disposes of all or any Partnership Units (but not including herein a
conversion or redemption into other Partnership Units), then the provisions of
this Supplement related to the allocation of indebtedness to the Xxxxxxxx
Entities as to any such Partnership Units so redeemed, sold or otherwise
disposed of, shall end at the time of such redemption, sale or other
disposition.
This document may be executed in any number of counterparts,
each of which shall be deemed an original, and all of which shall constitute one
and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Xxxxxxxx Limited Partner Supplement on or as of December 6, 2001.
XXXXXXXX PROPERTIES #14, LLC
By:
Name:
Title:
XXXXXXXX PROPERTIES #16, LLC
By:
Name:
Title:
LEPERCQ CORPORATE INCOME
FUND II L.P.
By: Lex GP-1, Inc., General Partner
By:
Name:
Title:
A-13
XXXXXXXX ENTITIES REQUIRED DEBT AMOUNT
------------------ --------------------
Xxxxxxxx Properties #14 LLC $ 1,382,641.59
Xxxxxxxx Properties #16 LLC $ 2,807,181.41
A-14
PARTNERS' CONTRIBUTIONS AND PARTNERSHIP INTERESTS
Capital Partnership Percentage Redemption
Name of Partner Contribution Units Interest Exemption Date
--------------------------------------------------------------------------------------------------------------
XXXXXXXX LIMITED PARTNERS
Xxxxxxxx Properties #14 LLC $ 6,305 443 0.00808%
Xxxxxxxx Properties #16 LLC $ 12,801.07 898 0.01637%
A-15
