Exhibit 10.3
Execution Copy
FIFTH AMENDMENT TO
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF
NET 3 ACQUISITION L.P.
This FIFTH AMENDMENT TO AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP OF NET 3 ACQUISITION L.P. (this "Amendment") is made and effective
as of January 3, 2005, by and among the entities and individuals signatory
hereto.
A. Net 3 Acquisition L.P., a Delaware limited partnership (the
"Partnership"), is governed by that certain Amended and Restated Agreement of
Limited Partnership, dated effective as of November 28, 2001, as amended by that
certain First Amendment effective as of November 28, 2001, that certain Second
Amendment effective as of June 19, 2003, that certain Third Amendment effective
as of June 30, 2003, and that certain Fourth Amendment effective as of December
8, 2004 (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 Lepercq
Corporate Income Fund II L.P., a Delaware limited partnership (collectively, the
"Operating Partnerships"). Lex LP is the Initial Limited Partner of each of the
Operating Partnerships.
C. Pursuant to that certain Underwriting Agreement, dated as of
December 2, 2004, by and among Bear, ▇▇▇▇▇▇▇ & Co. Inc. (the "Underwriter "), on
the one hand, and LXP and the Operating Partnerships, on the other, and as of
the date hereof, LXP has completed the offer and sale (the "Offering") to the
Underwriter of an additional 400,000 preferred shares of beneficial interest,
classified as 6.50% Series C Cumulative Convertible Preferred Stock, par value
$0.0001 per share, of LXP ("Preferred Shares"), pursuant to a prospectus
supplement dated December 3, 2004 and the accompanying base prospectus dated
October 22, 2003.
D. The Preferred Shares carry a (i) cumulative preferred dividend, (ii)
liquidation preference and (iii) conversion right.
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 C 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 dated as of December 8, 2004.
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 an
additional 54,738 Preferred OP Units to Lex LP by amending and restating Exhibit
A to the Agreement.
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. Preferred OP Units. Lex LP is hereby issued 54,738 Preferred OP
Units and shall have the rights, preferences and privileges as set forth in the
Certificate of Designation. 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/ ▇. ▇▇▇▇▇▇ Eglin
----------------------------
▇. ▇▇▇▇▇▇ Eglin
Vice President
EXHIBIT A
PARTNERS
-------------------------------------------------------------------------------------------------------------
Number Of Number Of
Number Of Special Limited Preferred OP Capital
Name And Address Common Units Partner Units Units Contribution
-------------------------------------------------------------------------------------------------------------
General Partner:
----------------
Lex GP-1 Trust. 44,858 $643,500.90
Initial Limited Partner:
------------------------
Lex LP-1 Trust 4,396,084 $63,706,502.16
Special Limited Partner:
------------------------
The LCP Group, L.P. 44,858 $649,992.42
Series B Preferred Limited
--------------------------
Partner:
--------
Lex LP-1 Trust 486,201 $12,155,025
Series C Preferred Limited
--------------------------
Partner:
--------
Lex LP-1 Trust 424,215 $20,653,967.44
---------------- ---------------- ---------------- ----------------
4,440,942 44,858 855,678 $97,808,987.92
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