Exhibit 10.2
FOURTH AMENDMENT TO
SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF
LEPERCQ CORPORATE INCOME FUND II L.P.
This FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF LEPERCQ CORPORATE INCOME FUND II L.P. (this "Amendment")
is made and effective as of January 3, 2005 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, as amended by that certain First Amendment thereto effective as of June
19, 2003, by Second Amendment thereto effective as of June 30, 2003, and by
Third Amendment thereto 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 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. Pursuant to that certain Underwriting Agreement, dated as of
December 2, 2004, by and among Bear, Xxxxxxx & 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 65,112 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.
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 65,112 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/ X. Xxxxxx Eglin
------------------------------
X. Xxxxxx Eglin
Vice President
EXHIBIT A
PARTNERS' CONTRIBUTIONS AND PARTNERSHIP INTERESTS
Percentage
Capital Partnership Interest of Redemption
Name of Partner Contribution Units Class Exemption Date
---------------------------------------------------------------------------------------------------------------
General Partner
---------------
Lex GP-1 Trust $100 35,411 0.72018% N/A
Limited Partner
---------------
Lex LP-1 Trust $100 3,462,082.5 70.41091% N/A
Series B Preferred Limited Partner
----------------------------------
Lex LP-1 Trust $14,199,025 567,961 100% (of N/A
Series B)
Series C Preferred Limited Partner
----------------------------------
Lex LP-1 Trust $24,568,637.56 504,619 100% (of N/A
Series C)
Special Limited Partners 1.11285% N/A
------------------------
Xxxxxxx X. Xxxxxxx _____ 3,354
The LCP Group, L.P. _____ 14,914
Xxxxx X. Xxxx _____ 2,161.5
E. Xxxxxx Xxxxxxx _____ 21,443
Xxxxxxx X. Xxxxx _____ 8,241
Xxxxxx X. Xxxxxxx _____ 4,605
Phoenix Limited Partner 4.37884% 15-Jan-99
-----------------------
E. Xxxxxx Xxxxxxx G.P. interest 175,306
The E. Xxxxxx Xxxxxxx Family, L.P. 40,000
Xxxxxx Limited Partners (Units 23.34995% 1-Sep-99
----------------------- Contributed)
AGR Trust 2 6,672
Xxxxxxx, Xxxxxx X. 1 3,336
Xxxxxxx, Xxxxxx X. III 1 3,336
Xxxxxx, E. Xxx 1 3,336
Xxxxxxxxxx, Xxxxxxx X. & Xxxxx 1 3,336
Xxxx, Xxxxx X.(Jr.) & Xxxxx X. 1 3,336
Xxxxxxxx, Xxxx X. Xx. 1 3,336
PARTNERS' CONTRIBUTIONS AND PARTNERSHIP INTERESTS
Percentage
Capital Partnership Interest of Redemption
Name of Partner Contribution Units Class Exemption Date
---------------------------------------------------------------------------------------------------------------
Xxxxxxx, Xxxx 0.5 1,668
Xxxxxxxx, Xxxx X. 1 3,336
Xxxxxx, Xxxx X. 0.5 1,668
Xxxx, Xxxxxxx X. & Xxxxxxxx X. 1 3,336
Xxxxxx, Xxxxxx 1 3,336
Xxxxxx, Xxxxxxx X. 1 3,336
W.C. & X.X. Xxxxxxx Family Trust 1 3,336
Xxxxxxxx, Xxxx X. Revocable 1 3,336
Intervivos Trust
Xxxxxxxx, Xxxxxxxx X. 0.5 1,668
Xxxx, Xxxx X. 1 3,336
Xxxxxx, Xxxxx X. 0.5 1,668
Xxxx, Xxxx & Xxxxxx 1 3,336
Xxxxx, Xxxxx X. 1 3,336
Xxxxxxx, Xxxxxxx X. 1 3,336
Xxxxxxx Family Trust 1 3,336
Xxxxxxx Living Trust 1 3,336
Xxxxxxxxx, Xxxxx X. 0.5 1,668
Xxxxxxxx, Xxxxxxx X. 1 3,336
Xxxx, Xxxxxx X. 1 3,336
Xxxx, Xxx Long & Xxxx Xxx 0.5 1,668
Xxxxxx, Xxxxxx X. 0.5 1,668
Xxxxx, Xxxxx 1 3,336
Xxxxx, Xxxxxxx X. & Xxxxxx X. 1 3,336
Xxxxxxx (Xxxxxx X. Xx.)Revocable Trust 1 3,336
Xxxxxx, Xxxxxx X. 0.5 1,668
Croft (Xxxxx X.) Trust dtd 6/2/89 1 3,336
Xxxx, Xxxxx (Jr.) 0.25 834
A-2
PARTNERS' CONTRIBUTIONS AND PARTNERSHIP INTERESTS
Percentage
Capital Partnership Interest of Redemption
Name of Partner Contribution Units Class Exemption Date
---------------------------------------------------------------------------------------------------------------
Xxxxx, Xxxxxx X. 1 3,336
Xxxxxx, Xxxxxxx X. (Jr.) 0.25 834
Dash, Xxx 1 3,336
Xxxxx, Xxxxxxx X. 1 3,336
XxXxxx, Xxxxxxx X. 1 3,336
DMK Trust 1 3,336
Xxxxxx, Xxxxxxx X. 0.5 1,668
Xxxx, Xxxxx. 1 3,336
Xxxxxxxx, Xxxxx X. & Xxxxx X. 1 3,336
Edelman (Xxxx) Trust 1 3,336
Xxxxxx, Xxxxxxxxx 0.333 1,111
Xxxxxxxxx, Xxxxxxx 1 3,336
Xxxxxxx, (Xxxx X. Xx.) Ins. Trust 1 3,336
Xxxxx, Xxxxxx X. & Xxxxxx X. 1 3,336
Xxxxxxx, Xxxxx X. & Xxxxx X. 1 3,336
Xxxxxxx, Xxxxxxx X. 1 3,336
Xxxxxxxx, Xxxxxxx X. & Xxxxx 1 3,336
Xxxx, Xxxxx X. 0.5 1,668
Xxxxx, Xxxx X. & Xxxxx 1 3,336
Xxx, Xxxxxxx & Xxxxxx 1 3,336
Xxxxxxxx (Xxxxx X.) Trust u/a/d 5/7/90 1 3,336
Xxxxxxx, Xxxxxx 1 3,336
Xxxxx, Xxxx X. 1 3,336
Gold, Xxxxxx X. 1 3,336
Goldfinger, Xxxxx X. Trust 1 3,336
Xxxxxxx, Xxxxxx X. & Xxxxxxxx X. 1 3,336
The LCP Group 1 3,336
A-3
PARTNERS' CONTRIBUTIONS AND PARTNERSHIP INTERESTS
Percentage
Capital Partnership Interest of Redemption
Name of Partner Contribution Units Class Exemption Date
---------------------------------------------------------------------------------------------------------------
Xxxxxx, Xxxxxx X. 1 3,336
Xxxxxxxx, Xxxxxxx X. 1 3,336
Xxxxxxxxx, Xxxxx X. & Xxxxx X. 1 3,336
Xxxxxxxx, Xxxxxxx X. & Xxxxxxxxx 1 3,336
Xxxxxx, Xxxxx X. 0.5 1,668
Hanger, Xxxxxx X. 1 3,336
Xxxxxxx, Xxxxxx X. 1 3,336
Xxxxx, Drexwell 4 13,343
Xxxx, Xxxxxx X. 1 3,336
HMSP Realty Co. 1 3,336
Houston, Xxxxxx X. 1 3,336
Xxxxxxx (Xxxx X.) Trust 1 3,336
Xxxx, Xxxxxxx 0.5 1,668
Xxxxxx, Xxxxxxx X. 1 3,336
Irmscher, Xxxxx X. 1 3,336
Ito, Xxxxxx Xxxxxx 0.5 1,668
Xxxxxxx, Xxxxxxxxxx 0.333 1,111
Xxxxxxx, Xxxxxxx X 1 3,336
Xxxxxxx, Xxxxxxx X. & Xxxx X. 1 3,336
Xxxxx (Xxxx X.) Rev. Trust uad 9/24/91 1 3,336
Xxxxxx, Xxxxx X. 1 3,336
Xxxxxx, Xxxxxx 1 3,336
Xxxxxxxxx, Xxxxxx 1 3,336
Xxxxxxx (Xxxxxx & Xxxxxxxx) Rev Trust 1 3,336
Keto, Xxxxxx X. 1 3,336
Xxxxxxx, Xxxxxxx X. 1 3,336
Xxxxxxx, Xxxxxxxx X. 3 10,007
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PARTNERS' CONTRIBUTIONS AND PARTNERSHIP INTERESTS
Percentage
Capital Partnership Interest of Redemption
Name of Partner Contribution Units Class Exemption Date
---------------------------------------------------------------------------------------------------------------
Xxxxxxx, Xxxxxxx X. 8 26,686
Xxxxxxx, Xxxxxx 3 10,007
Xxxxxxxx, Xxxxx X. 1 3,336
Xxxxxx, Xxxxx 1 3,336
Xxx, Xxxxxx X. 0.5 1,668
Xxx, Xxxxxxx X. 1 3,336
Lesser, Xxxxxx X. 1.5 5,004
Lesser, Xxxxxx X. 0.5 1,668
Xxxxxx (Xxxxxx & Xxxxx) Trust 1 3,336
Xxxx, Xxxxx X. & Xxxx X. 1 3,336
Xxxx, Xxxxx 0.5 1,668
Xxxxxxx, Xxxx X. Xx. 1 3,336
Love, Xxxxxxxxx 1 3,336
Xxxxx, F.F. Revocable Trust 1 3,336
Xxxxxxx, Xxxxxxxxxx X. 1 3,336
Markstein Trust 1 3,336
Xxxxxxxx, Xxxxxx 0.5 1,668
Xxxxxxxx, Xxxxxxx X. 0.5 1,668
XxXxxxx, Living Trust 0.5 1,668
XxXxxxx, Xxxxxx X. 1 3,336
XxXxxxxx, Xxxxx X. 0.5 1,668
XxXxxxx, Xxxxx X. 0.5 1,668
XxXxx, Xxxxx X. 0.5 1,668
XxXxxxxx, Xxxxxxxx 0.25 834
Xxxx, Xxxxxx X. 0.5 1,668
Xxxx, Xxxx 0.5 1,668
Xxxxxxx, Xxxxxx X. 0.5 1,668
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PARTNERS' CONTRIBUTIONS AND PARTNERSHIP INTERESTS
Percentage
Capital Partnership Interest of Redemption
Name of Partner Contribution Units Class Exemption Date
---------------------------------------------------------------------------------------------------------------
Oceans Unlimited Partnership 1 3,336
Xxxxxx, Xxxx X. 1 3,336
O'Meallie, Xxxxxxxx X. 1 3,336
Xxxxxx, Xxxxxx X. 0.5 1,668
Otsuka, Xxxxxxx X. 1 3,336
Xxxxxxxx, Xxxxxx 0.25 834
Xxxxx, Chupendra & Indira 1 3,336
Xxxx, Xxxxxxx X. Xx. 1 3,336
Xxxxxxxx, Xxxxxx 0.5 1,668
Xxxxxxx, Xxxxxx 1 3,336
Xxxx Xxxxxxx Irrevocable Trust 1 3,336
Xxxxxxxx, Xxxx 0.25 834
Xxxxx, Xxxx X. & Xxx X. 1 3,336
Xxxxx, Xxxxx X. 0.5 1,668
Xxxxxxxxx, Xxxxxx X. 0.5 1,668
Xxxxxxxxx, Xxxxxxxx 1 3,336
Xxxx, Xxxx X. Xx. 2 6,672
Xxxxxxx, Xxxxxxx X. Xx. 0.5 1,668
Xxxxxxx Family Trust 1 3,336
Xxxxxx (Xxxxxxx X.) Trust 1 3,336
Xxxxxx, X. Xxxxx 1 3,336
Xxxxxxxx, Xxxxxx X. 3 10,007
Xxxxxxx, Xxxxxxx X. 1 3,336
Xxxxxxx, Xxxxxxx X.& Xxxxxxxx X. 1 3,336
Xxxxx, Xxxxx X. 1 3,336
Xxxxx, Xxxxxx 5 16,679
Xxxxxx, Xxxx 1 3,336
A-6
PARTNERS' CONTRIBUTIONS AND PARTNERSHIP INTERESTS
Percentage
Capital Partnership Interest of Redemption
Name of Partner Contribution Units Class Exemption Date
---------------------------------------------------------------------------------------------------------------
Xxxxx, Xxxxxx 1 3,336
St. Xxxxxx, M. Xxxxxx Xx. 1 3,336
Xxxxx, Xxxx Revocable Trust 0.5 1,668
Xxxxx, Xxxxxx X. 0.5 1,668
Xxxxxxxxx (Iris) Marital Trust 1 3,336
Xxxxxxxxxxx, Xxxx X. 1 3,336
Xxxxxxxx, Xxxxxxx Xxxx 0.333 1,111
Xxxxx X. Xxxxxx Trust 1 3,336
UBATCO & CO. 0.5 1,668
Xxxxxx, Xxxxxx 1 3,336
Voute, P. Xxxxxxx 1 3,336
Xxxx, Xxxxx 0.25 834
Xxxxxxxx, Xxxxxx X. 1 3,336
Xxxxxxxxx, Xxxxxxx 1 3,336
Xxxxxxxxx, Xxxxxx X. 1 3,336
Xxxxxx, Xxxx X. 1 3,336
Xxxxxx, Xxxxx 1 3,336
Xxxxxxxxxx, Xxxxxx X. 1 3,336
Worthington (Xxxxxxx Xxxx) Special 1 3,336
Trust
Xxxxxx, Xxxxxx X. 1 3,336
Wu, Yen Bin & Xxxx Eng 0.5 1,668
Xxxxx, Xxxxxx & Jo Xxxx 1 3,336
Xxxx, Xxxxxx & Muna 1 3,336
Xxxxxx, Xxxxxxx & Xxxxxx 1 3,336
Roskind, E. Xxxxxx 0.302 22,300
Xxxx, Xxxxx X. 0.1125 1,575
Xxxxx, Xxxxxxx X. 0.121 40,296
A-7
PARTNERS' CONTRIBUTIONS AND PARTNERSHIP INTERESTS
Percentage
Capital Partnership Interest of Redemption
Name of Partner Contribution Units Class Exemption Date
---------------------------------------------------------------------------------------------------------------
Xxxxxxx, Xxxxxx X. 0.095 53,015
Xxxxxxxx, Xxxxx X. 0.078 35,394
Xxxxxxxxxx, Xxxxx X. 0.01 33
The LCP Group, L.P. 373,116
Xxxxxxxx (Xxxxxxx) Trust dtd. 4/5/90 35,214
Roskind, E. Xxxxxx 2001 Trust 33,333
Third Lero Corp. 3,404
A-8
Xxxxxxxx Limited Partners Supplement
------------------------------------
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
Exhibits D-1 through D-3 modified to reflect the Xxxxxxxx Entities giving
notice) delivered to the General Partner and LXP on a Specified
A-9
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 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
A-10
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) 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
A-11
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.
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.
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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: /s/ Xxxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Manager
XXXXXXXX PROPERTIES #16, LLC
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Manager
LEPERCQ CORPORATE INCOME FUND II L.P.
By: Lex GP-1, Inc., General Partner
By: /s/ Xxxxxxx X. Xxxxx
----------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
Xxxxxxxx Entities Required Debt Amount
------------------ --------------------
Xxxxxxxx Properties #14 LLC $1,382,641.59
Xxxxxxxx Properties #16 LLC $2,807,181.41
PARTNERS' CONTRIBUTIONS AND PARTNERSHIP INTERESTS
Capital Partnership Percentage Redemption
Name of Partner Contribution Units Interest Exemption Date
---------------------------------------------------------------------------------------------------------------
Xxxxxxxx Limited Partners 0.02727% 1-Dec-02
-------------------------
Xxxxxxxx Properties #14 LLC $6,305 443
Xxxxxxxx Properties #16 LLC $12,801.07 898
A-13
