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Exhibit 3.3
FIFTH AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
LEPERCQ CORPORATE INCOME FUND L.P.
Dated as of December 31, 1996
As Supplemented as of March 10, 1997
To Include Pacific Place Merger
As Supplemented as of January 29, 1998
To Include Phoenix and Savannah Contributions
As Supplemented as of May 8, 1998
To Include Anchorage Contribution
As Supplemented as of June 19, 1998
To Include Trademark Lancaster Contribution
As Supplemented as of December 31, 1998
To Include Columbia Contribution
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TABLE OF CONTENTS
Page
ARTICLE 1 DEFINED TERMS.................................................................... 1
ARTICLE 2 ORGANIZATIONAL MATTERS........................................................... 15
Section 2.1 Organization..................................................................... 15
Section 2.2 LCIF I Merger.................................................................... 16
Section 2.3 Name............................................................................. 16
Section 2.4 Registered Office and Agent Principal
Office.................................................................... 17
Section 2.5 Term............................................................................. 17
ARTICLE 3 PURPOSE.......................................................................... 17
Section 3.1 Purpose and Business............................................................. 17
Section 3.2 Powers........................................................................... 18
ARTICLE 4 CAPITAL CONTRIBUTIONS............................................................ 18
Section 4.1 Capital Contributions of the Partners............................................ 18
Section 4.2 Issuances of Additional Partnership
Interests................................................................. 19
ARTICLE 5 DISTRIBUTIONS.................................................................... 20
Section 5.1 Requirement and Characterization of
Distributions.................................................................... 20
Section 5.2 Amounts Withheld................................................................. 21
Section 5.3 Distributions Upon Liquidation................................................... 21
ARTICLE 6 ALLOCATIONS...................................................................... 21
Section 6.1 Allocations For Capital Account
Purposes.................................................................. 22
ARTICLE 7 MANAGEMENT AND OPERATIONS OF BUSINESS............................................ 23
Section 7.1 Management....................................................................... 23
Section 7.2 Certificate of Limited Partnership............................................... 26
Section 7.3 Restrictions on Authority........................................................ 26
Section 7.4 Reimbursement of LXP............................................................. 26
Section 7.5 Outside Activities of and Participation
in Other Transactions by LXP and the
General Partner........................................................... 28
Section 7.6 Indemnification.................................................................. 28
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ARTICLE 8 RIGHTS AND OBLIGATIONS OF THE LIMITED
PARTNERS......................................................................... 30
Section 8.1 Management of Business........................................................... 30
Section 8.2 Outside Activities of Additional Limited
Partners......................................................................... 30
Section 8.3 Return of Capital................................................................ 30
Section 8.4 Redemption Rights................................................................ 30
ARTICLE 9 BOOKS, RECORDS, ACCOUNTING AND REPORTS........................................... 37
Section 9.1 Records and Accounting........................................................... 37
Section 9.2 Fiscal Year...................................................................... 37
ARTICLE 10 TAX MATTERS...................................................................... 37
Section 10.1 Preparation of Tax Returns....................................................... 37
Section 10.2 Tax Elections.................................................................... 37
Section 10.3 Tax Matters Partner.............................................................. 38
Section 10.4 Withholding...................................................................... 38
ARTICLE 11 TRANSFERS AND WITHDRAWALS........................................................ 39
Section 11.1 Transfer......................................................................... 39
Section 11.2 Transfer of Partnership Interests by
the General Partner and the Initial
Limited Partner .......................................................... 39
Section 11.3 Additional Limited Partners' Rights
to Transfer............................................................... 40
Section 11.4 Substituted Additional Limited
Partners.................................................................. 42
Section 11.5 Assignees........................................................................ 42
Section 11.6 General Provisions............................................................... 43
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ARTICLE 12 ADMISSION OF PARTNERS............................................................ 44
Section 12.1 Admission of Subsequent Partner.................................................. 44
Section 12.2 Amendment of Agreement and Certificate
of Limited Partnership.................................................... 45
ARTICLE 13 DISSOLUTION, LIQUIDATION AND TERMINATION......................................... 45
Section 13.1 Dissolution...................................................................... 45
Section 13.2 Winding Up....................................................................... 46
Section 13.3 Negative Capital Accounts........................................................ 47
Section 13.4 Deemed Distribution and Recontribution........................................... 48
Section 13.5 Rights of the Limited Partners................................................... 48
Section 13.6 Waiver of Partition.............................................................. 48
ARTICLE 14 AMENDMENT OF PARTNERSHIP AGREEMENT............................................... 48
ARTICLE 15 GENERAL PROVISIONS............................................................... 50
Section 15.1 Addresses and Notice............................................................. 50
Section 15.2 Titles and Captions.............................................................. 50
Section 15.3 Pronouns and Plurals............................................................. 50
Section 15.4 Further Action................................................................... 50
Section 15.5 Binding Effect................................................................... 51
Section 15.6 Waiver........................................................................... 51
Section 15.7 Counterparts..................................................................... 51
Section 15.8 Applicable Law................................................................... 51
Section 15.9 Invalidity of Provisions......................................................... 51
Section 15.10 Entire Agreement................................................................. 52
EXHIBIT A PARTNERS' CONTRIBUTIONS AND PARTNERSHIP INTERESTS
EXHIBIT B CAPITAL ACCOUNT MAINTENANCE
EXHIBIT C SPECIAL ALLOCATION RULES
EXHIBIT D-1 NOTICE OF REDEMPTION
EXHIBIT D-2 NOTICE OF REDEMPTION
EXHIBIT D-3 NOTICE OF REDEMPTION
EXHIBIT D-4 NOTICE OF REDEMPTION
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FIFTH AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
LEPERCQ CORPORATE INCOME FUND L.P.
THIS FIFTH AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP, dated as of December 31, 1996, is entered into by and among
Lex GP-1, Inc., a Delaware corporation ("GP-1"), as the General Partner, Lex
LP-1, Inc. a Delaware corporation ("LP-1"), as the Initial Limited Partner,
Lexington Corporate Properties, Inc., a Maryland corporation ("LXP"), which is
the sole stockholder of the General Partner and the Initial Limited Partner, the
Persons whose names will be hereinafter set forth on Exhibit A as Special
Limited Partners as attached hereto, the Persons whose names will be hereinafter
set forth on Exhibit A as Property Limited Partners attached hereto, the Persons
whose names will be hereinafter set forth on Exhibit A as Red Butte Limited
Partners, and the Persons whose names will be hereinafter set forth on Exhibit A
as Expansion Limited Partners, with any other Persons who become Partners in the
Partnership as provided herein.
ARTICLE 1
DEFINED TERMS
The following definitions shall for all purposes
be applied to the following terms used in this Agreement.
"Act" means the Delaware Revised Uniform Limited
Partnership Act, as it may be amended from time to time.
"Additional Limited Partners" means the Special
Limited Partners, the Property Limited Partners, the Red Butte Limited Partners,
the Expansion Limited Partners, and any other limited partner admitted to the
Partnership pursuant to Section 4.2.A.
"Adjusted Capital Account" means the Capital
Account maintained for each Partner as of the end of each Partnership Year (i)
increased by any amounts which such Partner is obligated to restore pursuant to
any provision of this Agreement or is deemed to be obligated to restore
pursuant to the penultimate sentences of Regulations Sections 1.704-2(g)(1) and
1.704-2(i)(5) and (ii) decreased by the items described in Regulations Sections
1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), and 1.704-1(b)(2)(ii)(d)(6).
The foregoing definition of Adjusted Capital Account is intended to comply with
the provisions of
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Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently
therewith.
"Adjusted Capital Account Deficit" means, with
respect to any Partner, the deficit balance, if any, in such Partner's Adjusted
Capital Account as of the end of the relevant Partnership Year.
"Adjusted Property" means any property the
Carrying Value of which has been adjusted pursuant to Exhibit B hereof. Once an
Adjusted Property is deemed distributed by, and re-contributed to, the
Partnership for federal income tax purposes upon a termination thereof pursuant
to Section 708 of the Code, such property shall thereafter constitute a
Contributed Property until the Carrying Value of such property is further
adjusted pursuant to Exhibit B hereof.
"Affiliate" means, with respect to any Person, any
Person directly or indirectly controlling, controlled by or under common control
with such Person.
"Agreed Value" means (i) the 704(c) Value of such
property or other consideration in the case of any Contributed Property as of
the time of its contribution to the Partnership, reduced by any liabilities
either assumed by the Partnership upon such contribution or to which such
property is subject when contributed, and (ii) in the case of any property
distributed to a Partner by the Partnership, the Partnership's Carrying Value of
such property at the time such Property is distributed, reduced by any
indebtedness either assumed by such Partner upon such distribution or to which
such property is subject at the time of distribution under Section 752 of the
Code and the Regulations thereunder.
"Agreement" means this Fifth Amended and Restated
Agreement of Limited Partnership, as it may be amended, supplemented or restated
from time to time.
"Assignee" means a Person to whom one or more
Partnership Units held by an Additional Limited Partner have been transferred in
a manner permitted under this Agreement, but who has not become a Substituted
Additional Limited Partner and who has the rights set forth in Section 11.5.
"Book-Tax Disparities" means, with respect to any
item of Contributed Property or Adjusted Property, as of the date of any
determination, the difference between the Carrying Value of such Contributed
Property or Adjusted Property and the adjusted basis thereof for federal income
tax purposes as of such date. A
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Partner's share of the Partnership's Book-Tax Disparities in all of its
Contributed Property and Adjusted Property will be reflected by the difference
between such Partner's Capital Account balance as maintained pursuant to Exhibit
B and the hypothetical balance of such Partner's Capital Account computed as if
it had been maintained strictly in accordance with federal income tax accounting
principles.
"Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York, New York are authorized or
required by law to close.
"Capital Account" means the Capital Account maintained for
a Partner pursuant to Exhibit B hereof.
"Capital Contributions" means, with respect to any
Partner, any cash, cash equivalents or the Agreed Value of Contributed Property
which such Partner contributes or is deemed to contribute to the Partnership
pursuant to Section 4.1 or 4.2 hereof.
"Capital Event" means the sale, refinancing or other
disposition of a Partnership asset outside the ordinary course of the
Partnership's business.
"Carrying Value" means (i) with respect to a Contributed
Property or Adjusted Property, the 704(c) Value of such property reduced (but
not below zero) by all Depreciation with respect to such property charged to the
Partners' Capital Accounts and (ii) with respect to any other Partnership
property, the adjusted basis of such property for federal income tax purposes,
all as of the time of determination. The Carrying Value of any property shall be
adjusted from time to time in accordance with Exhibit B hereof, and to reflect
changes, additions or other adjustments to the Carrying Value for dispositions
and acquisitions of Partnership properties, as deemed appropriate by the General
Partner.
"Certificate" means the Certificate of Limited Partnership
relating to the Partnership filed in the office of the Delaware Secretary of
State, as amended from time to time in accordance with the terms hereof and the
Act.
"Certificate of Incorporation" means the Amended and
Restated Certificate of Incorporation of LXP, as amended or restated from time
to time.
"Code" means the Internal Revenue Code of 1986, as amended
and in effect from time to time, as interpreted by the
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applicable regulations thereunder. Any reference herein to a specific section or
sections of the Code shall be deemed to include a reference to any corresponding
provision of future law.
"Contributed Property" means each property or other asset,
in such form as may be permitted by the Act, but excluding cash, contributed or
deemed contributed to the Partnership (or deemed contributed to the Partnership
on termination and reconstitution thereof pursuant to Section 708 of the Code).
Once the Carrying Value of a Contributed Property is adjusted pursuant to
Exhibit B hereof, such property shall no longer constitute a Contributed
Property for purposes of Exhibit B hereof, but shall be deemed an Adjusted
Property for such purposes.
"Depreciation" means, for each fiscal year, an
amount equal to the federal income tax depreciation, amortization, or other cost
recovery deduction allowable with respect to an asset for such year, except that
if the Carrying Value of an asset differs from its adjusted basis for federal
income tax purposes at the beginning of such year or other period, Depreciation
shall be an amount which bears the same ratio to such beginning Carrying Value
as the federal income tax depreciation, amortization, or other cost recovery
deduction for such year bears to such beginning adjusted tax basis; provided,
however, that if the federal income tax depreciation, amortization, or other
cost recovery deduction for such year is zero, Depreciation shall be determined
with reference to such beginning Carrying Value using any reasonable method
selected by the General Partner.
"Effective Date" shall mean October 12, 1993, the
date of the filing of the LCIF I Merger Certificate with the Secretary of State
of the State of Delaware.
"Effective Time" shall mean October 12, 1993, the
time of the filing of the LCIF I Merger Certificate with the Secretary of State
of Delaware.
"Expansion Limited Partner" means a Person
admitted to the Partnership as an Expansion Limited Partner pursuant to Section
4.2 hereof as a result of the contribution by one of the Expansion Partnerships
of all of such Partnership's interest in an Expansion Property and the
subsequent dissolution of such Expansion Partnership, and who is shown as such
on the books and records of the Partnership.
"Expansion Limited Partner Interest" means a Partnership
Interest of an Expansion Limited Partner in the
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Partnership representing a fractional part of the Partnership Interests of all
Expansion Limited Partners and includes any and all benefits to which the holder
of such a Partnership Interest may be entitled as provided in this Agreement,
together with all obligations of such Person to comply with the terms and
provisions of this Agreement. An Expansion Limited Partner Interest may be
expressed as a number of Partnership Units.
"Expansion Limited Partner Redemption Right" shall have
the meaning set forth in Section 8.4.
"Expansion Partners Closing Date" shall mean the date
hereof.
"Expansion Partnership" means one of Toy Properties
Associates II, Toy Properties Associates V, and Fort Street Partners Limited
Partnership.
"Expansion Property" means an Expansion Partnership's
interest in any property.
"Expansion Redeeming Partners" shall have the meaning set
forth in Section 8.4.
"General Partner" means Lex GP-1, Inc. or its successors
as general partner of the Partnership.
"General Partner Interest" means a Partnership Interest
held by the General Partner that is a general partner interest. A General
Partner Interest shall be expressed as a number of Partnership Units.
"Immediate Family" means, with respect to any natural
Person, such natural Person's spouse and such natural Person's natural or
adoptive parents, descendants, nephews, nieces, brothers, and sisters.
"Incapacity" or "Incapacitated" means (i) as to any
individual Partner, death, total physical disability or entry by a court of
competent jurisdiction adjudicating him incompetent to manage his Person or his
estate; (ii) as to any corporation which is a Partner, the filing of a
certificate of dissolution, or its equivalent, for the corporation or the
revocation of its charter; (iii) as to any partnership which is a Partner, the
dissolution and commencement of winding up of the partnership; (iv) as to any
estate which is a Partner, the distribution by the fiduciary of the estate's
entire interest in the Partnership; (v) as to any trustee of a trust which is a
Partner, the termination of the trust (but not the substitution of a new
trustee); or (vi) as to
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any Partner, the bankruptcy of such Partner. For purposes
of this definition, bankruptcy of a Partner shall be deemed to have occurred
when (a) the Partner commences a voluntary proceeding seeking liquidation,
reorganization or other relief under any bankruptcy, insolvency or other similar
law now or hereafter in effect, (b) the Partner is adjudged as bankrupt or
insolvent, or a final and nonappealable order for relief under any Bankruptcy,
insolvency or similar law now or hereafter in effect has been entered against
the Partner, (c) the Partner executes and delivers a general assignment for the
benefit of the Partner's creditors, (d) the Partner files an answer or other
pleading admitting or failing to contest the material allegations of a petition
filed against the Partner in any proceeding of the nature described in clause
(b) above, (e) the Partner seeks, consents to or acquiesces in the appointment
of a trustee, receiver or liquidator for the Partner or for all or any
substantial part of the Partner's properties, (f) any proceeding seeking
liquidation, reorganization or other relief of or against such Partner under any
bankruptcy, insolvency or other similar law now or hereafter in effect has not
been dismissed within one hundred twenty (120) days after the commencement
thereof, (g) the appointment without the Partner's consent or acquiescence of a
trustee, receiver or liquidator for the assets of the Partner which such
appointment has not been vacated or stayed within ninety (90) days of such
appointment, or (h) an appointment referred to in clause (g) is not vacated
within ninety (90) days after the expiration of any such stay.
"Indemnitee" means (i) any Person made a party to a
proceeding by reason of his status as (A) the General Partner, or (B) a director
or officer of the Partnership, the General Partner, the Initial Limited Partner
or LXP, and (ii) such other Persons (including Affiliates of the Partnership,
the General Partner, the Initial Limited Partner or LXP) as the General Partner
may designate from time to time (whether before or after the event giving rise
to potential liability), in its sole and absolute discretion.
"Initial Limited Partner" means Lex LP-1, Inc.
"IRS" means the Internal Revenue Service, which
administers the internal revenue laws of the United States.
"LCIF I" means Lepercq Corporate Income Fund L.P., a
Delaware limited partnership.
"LCIF I Merger" means the Merger of Lex M-1 with and into
LCIF I pursuant to the LCIF I Merger Agreement.
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"LCIF I Merger Agreement" means the Agreement and Plan of
Merger of Lex M-1 into LCIF I dated as of October 12, 1993.
"LCIF I Merger Certificate" means the Certificate of
Merger of the Partnership into LCIF I, dated October 12, 1993 filed in the
office of the Delaware Secretary of State on October 12, 1993.
"LCIF II" means Lepercq Corporate Income Fund II L.P., a
Delaware limited partnership.
"Lex M-1" means Lex M-1, L.P., a Delaware limited
partnership.
"Limited Partner Interest" means a Partnership Interest
held by a Limited Partner in the Partnership that is a limited partner interest.
A Limited Partner Interest shall be expressed as a number of Partnership Units.
"Limited Partners" means the Initial Limited Partners, the
Special Limited Partners and the Property Limited Partners, and the Red Butte
Limited Partners.
"Liquidator" has the meaning set forth in Section 13.2.
"LCP" means The LCP Group, L.P.
"LXP" means Lexington Corporate Properties, Inc., a
Maryland corporation which is the sole stockholder of the General Partner and
the Initial Limited Partner.
"Mergers" means the merger of Lex M-1 with and into LCIF I
and the merger of Lex M-2 with and into LCIF II, which mergers became effective
on October 12, 1993.
"Net Income" means, for any taxable period, the excess, if
any, of the Partnership's items of income and gain for such taxable period over
the Partnership's items of loss and deduction for such taxable period. The items
included in the calculation of Net Income shall be determined in accordance with
Exhibit B. Once an item of income, gain, loss or deduction that has been
included in the initial computation of Net Income is subjected to the special
allocation rules in Exhibit C, Net Income or the resulting Net Loss, whichever
the case may be, shall be recomputed without regard to such item.
"Net Loss" means, for any taxable period, the excess, if
any, of the Partnership's items of loss and deduction for such
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taxable period over the Partnership's items of income and gain for such taxable
period. The items included in the calculation of Net Loss shall be determined in
accordance with Exhibit B. Once an item of income, gain, loss or deduction that
has been included in the initial computation of Net Loss is subjected to the
special allocation rules in Exhibit C, Net Loss or the resulting Net Income,
whichever the case may be, shall be recomputed without regard to such item.
"Nonrecourse Built-in Gain" means, with respect to any
Contributed Properties or Adjusted Properties that are subject to a mortgage or
negative pledge securing a Nonrecourse Liability, the amount of any taxable gain
that would be allocated to the Partners pursuant to Section 2.B of Exhibit C if
such properties were disposed of in a taxable transaction in full satisfaction
of such liabilities and for no other consideration.
"Nonrecourse Deductions" has the meaning set forth in
Regulations Section 1.704-2(b)(1), and the amount of Nonrecourse Deductions for
a Partnership Year shall be determined in accordance with the rules of
Regulations Section 1.704-2(c).
"Nonrecourse Liability" has the meaning set forth in
Regulations Section 1.752-1(a)(2).
"Notice of Redemption" means the Notice of Redemption
substantially in the form of Exhibit X-0, Xxxxxxx X-0, Xxxxxxx X-0, or Exhibit
D-4 to this Agreement.
"Operating Cash Flow" means, for any period, operating
revenue from leases on real property investments, partnership distributions with
respect to partnerships in which the Partnership has interests, and interest on
uninvested funds and other cash investment returns, less operating expenses,
capital expenditures and regularly scheduled principal and interest payments
(exclusive of balloon payments due at maturity) on outstanding mortgage and
other indebtedness. The General Partner may, in its discretion, reduce Operating
Cash Flow for any period by an amount determined by the General Partner to be
necessary to fund reserves required by the Partnership.
"Partner" means a General Partner, the Initial Limited
Partner, any Special Limited Partner, any Property Limited Partner, any Red
Butte Limited Partner or any Expansion Limited Partners and "Partners" means the
General Partner, the Limited Partner, the Special Limited Partners, the Property
Limited Partners, the Red Butte Limited Partners and the Expansion Limited
Partners.
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"Partner Minimum Gain" means an amount, with respect to
each Partner Nonrecourse Debt, equal to the Partnership Minimum Gain that would
result if such Partner Nonrecourse Debt were treated as a Nonrecourse Liability,
determined in accordance with Regulations Section 1.704-2(i)(3).
"Partner Nonrecourse Debt" has the meaning set forth in
Regulations Section 1.704-2(b)(4).
"Partner Nonrecourse Deductions" has the meaning set forth
in Regulations Section 1.704-2(i)(2), and the amount of Partner Nonrecourse
Deductions with respect to a Partner Nonrecourse Debt for a Partnership Year
shall be determined in accordance with the rules of Regulations Section
1.704-2(i)(2).
"Partnership" shall have the meaning set forth in Section
2.3 of this Agreement.
"Partnership Interest" means an ownership interest in the
Partnership representing a Capital Contribution by a Partner and includes any
and all benefits to which the holder of such a Partnership Interest may be
entitled as provided in this Agreement, together with all obligations of such
Person to comply with the terms and provisions of this Agreement. A Partnership
Interest shall be expressed as a number of Partnership Units.
"Partnership Minimum Gain" has the meaning set forth in
Regulations Section 1.704-2(b)(2), and the amount of Partnership Minimum Gain,
as well as any net increase or decrease in Partnership Minimum Gain, for a
Partnership Year shall be determined in accordance with the rules of Regulations
Section 1.704-2(d).
"Partnership Record Date" means the record date
established by the General Partner for the distribution of Operating Cash Flow
pursuant to Section 5.1 hereof, which record date shall be the same as the
record date established by LXP for a distribution to its stockholders of some or
all of such distribution.
"Partnership Unit" means a fractional, undivided share of
the Partnership Interests of all Partners issued pursuant to Sections 4.1 and
4.2.
"Partnership Year" means the fiscal year of the
Partnership, which shall be the calendar year.
"Percentage Interest" means, as to a Partner, its interest
in the Partnership as determined by dividing the
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Partnership Units owned by such Partner by the total number of Partnership Units
then outstanding and as specified in Exhibit A attached hereto, as such Exhibit
may be amended from time to time.
"Person" means an individual or a corporation,
partnership, trust, unincorporated organization, association, limited liability
company or other entity.
"Prior Agreements" means the Agreement of Limited
Partnership of Lex M-1, L.P., dated as of October 5, 1993, between the General
Partner, the Initial Limited Partner, the First Amended and Restated Agreement
of Limited Partnership of Lex M-1, L.P., dated as of October 8, 1993, between
the General Partner, the Initial Limited Partner and the Special Limited
Partners, the First Amended and Restated Agreement of Limited Partnership of
Lepercq Corporate Income Fund L.P. dated as of October 12, 1993, between the
General Partner, the Initial Limited Partner and the Special Limited Partners,
the Second Amended and Restated Agreement of Limited Partnership of Lepercq
Corporate Income Fund L.P., dated as of October 12, 1993 between the General
Partner, the Initial Limited Partner and the Special Limited Partners, and the
Third Amended and Restated Agreement of Limited Partnership of Lepercq Corporate
Income Fund L.P. dated August 1, 1995 between the General Partner, the Initial
Limited Partner, the Special Limited Partners and the Property Limited Partners,
and the Fourth Amended and Restated Agreement of Limited Partnership of Lepercq
Corporate Income Fund L.P. dated as of May 22, 1996 between the General Partner,
the Initial Limited Partner, the Special Limited Partners, the Property Limited
Partners, and the Red Butte Limited Partners.
"Property Limited Partner" means a Person admitted to the
Partnership as a Property Limited Partner pursuant to Section 4.2 hereof as a
result of the contribution of an interest in an Underlying Partnership and who
is shown as such on the books and records of the Partnership.
"Property Limited Partner Interest" means a Partnership
Interest of a Property Limited Partner in the Partnership representing a
fractional part of the Partnership Interests of all Property Limited Partners
and includes any and all benefits to which the holder of such a Partnership
Interest may be entitled as provided in this Agreement, together with all
obligations of such Person to comply with the terms and provisions of this
Agreement. A Property Limited Partner Interest may be expressed as a number of
Partnership Units.
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"Property Limited Partner Redemption Right" shall
have the meaning set forth in Section 8.4.
"Property Partners Closing Date" shall mean August 1,
1995.
"Property Redeeming Partners" shall have the meaning set
forth in Section 8.4.
"Recapture Income" means any gain recognized by the
Partnership upon the disposition of any property or asset of the Partnership,
which gain is characterized as ordinary income because it represents the
recapture of deductions previously taken with respect to such property or asset.
"Red Butte" means Red Butte Creek Associates Limited
Partnership, a limited partnership organized under the laws of the State of
Utah.
"Red Butte Limited Partner" means a Person admitted to the
Partnership as a Red Butte Limited Partner pursuant to Section 4.2 hereof as a
result of the contribution by Red Butte of all of its interest in the Red Butte
Property and the subsequent dissolution of Red Butte and who is shown as such on
the books and records of the Partnership.
"Red Butte Limited Partner Interest" means a Partnership
Interest of a Red Butte Limited Partner in the Partnership representing a
fractional part of the Partnership Interests of all Red Butte Limited Partners
and includes any and all benefits to which the holder of such a Partnership
Interest may be entitled as provided in this Agreement, together with all
obligations of such Person to comply with the terms and provisions of this
Agreement. A Red Butte Limited Partner Interest may be expressed as a number of
Partnership Units.
"Red Butte Limited Partner Redemption Right" shall have
the meaning set forth in Section 8.4.
"Red Butte Partners Closing Date" shall mean May 22, 1996.
"Red Butte Property" means all of Red Butte's interest in
that certain property located at 000 Xxxxxxx Xxx, Xxxxxxxxxx of Utah Xxxxxxxx
Xxxx, Xxxx Xxxx Xxxx, Xxxx.
"Red Butte Redeeming Partners" shall have the meaning set
forth in Section 8.4.
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"Redeeming Partner" shall mean either a Special Redeeming
Partner, a Property Redeeming Partner, a Red Butte Redeeming Partner, or an
Expansion Redeeming Partner, as the case may be.
"Redemption Amount" means the number of REIT Shares equal
to the product of the number of Partnership Units offered for redemption by a
Redeeming Partner, multiplied by the Redemption Factor; provided that in the
event the General Partner issues to all holders of REIT Shares rights, options,
warrants or convertible or exchangeable securities entitling the stockholders to
subscribe for or purchase REIT Shares, or any other securities or property
(collectively, the "rights") then the Redemption Amount shall also include such
rights that a holder of that number of REIT Shares would be entitled to receive.
"Redemption Exercise Date" shall mean that applicable date
as set forth next to each Property Limited Partners' name, and each Red Butte
Limited Partners' name, on Exhibit A.
"Redemption Factor" means 1.0, provided that in the event
that LXP (i) declares or pays a dividend on its outstanding REIT Shares in REIT
Shares or makes a distribution to all holders of its outstanding REIT Shares in
REIT Shares, (ii) subdivides its outstanding REIT Shares, or (iii) combines its
outstanding REIT Shares into a smaller number of REIT Shares, the Redemption
Factor shall be adjusted by multiplying the Redemption Factor in effect
immediately before such event by a fraction, the numerator of which shall be the
number of REIT Shares issued and outstanding on the record date for such
dividend, distribution, subdivision or combination (assuming for such purposes
that such dividend, distribution, subdivision or combination has occurred as of
such time), and the denominator of which shall be the actual number of REIT
Shares (determined without the above assumption) issued and outstanding on the
record date for such dividend distribution, subdivision or combination. Any
adjustment to the Redemption Factor shall become effective immediately after the
effective date of such event retroactive to the record date, if any, for such
event.
"Redemption Right" shall mean either the Special Limited
Partner Redemption Right, the Property Limited Partner Redemption Right, the Red
Butte Limited Partner Redemption Right, or the Expansion Limited Partner, as the
case may be.
"Regulations" means the Income Tax Regulations promulgated
under the Code, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
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"REIT" means a real estate investment trust under Section
856 of the Code.
"REIT Share" shall mean a share of Common Stock, $.0001
par value, of LXP. A REIT Share shall also mean a share of Excess Xxxxx, x.0000
par value, of LXP issued in exchange or upon conversion of a share of such
Common Stock under the circumstances contemplated by the Certificate of
Incorporation.
"Relative Interest" means the percentage determined by a
fraction, the numerator of which is the Capital Contributions deemed to be made
by the General Partner, the Initial Limited Partner and the Special Limited
Partners on the Effective Date to the Partnership and the denominator of which
is such Capital Contributions plus the capital contributions deemed to be made
by the partners of LCIF II to LCIF II on the Effective Date. LXP may require the
Partnership to adjust the Relative Interest from time to time, in its discretion
(provided that the sum of the Relative Interest of the Partnership and the
relative interest of LCIF II continue to total one (1.0)), so that each
Partnership Unit held by the Special Limited Partners remains substantially
equivalent to each partnership unit held by the special limited partners in LCIF
II with regard to (i) allocations of income, gain, loss, deduction and credit,
(ii) distributions from Operating Cash Flow and (iii) distributions upon
dissolution and liquidation of the Partnership and LCIF II.
"Residual Gain" or "Residual Loss" means any item of gain
or loss, as the case may be, of the Partnership recognized for federal income
tax purposes resulting from a sale, exchange or other disposition of Contributed
Property or Adjusted Property, to the extent such item of gain or loss is not
allocated pursuant to Section 2.X.x(a) or 2.B.2(a) of Exhibit C to eliminate
Book-Tax Disparities.
"704(c) Value" of any Contributed Property means the fair
market value of such property or other consideration at the time of contribution
as determined by the General Partner using such reasonable method of valuation
as it may adopt; provided that the 704(c) Value of any property deemed
contributed to the Partnership for federal income tax purposes upon termination
and reconstitution thereof pursuant to Section 708 of the Code shall be
determined in accordance with Exhibit B hereof. Subject to Exhibit B hereof, the
General Partner shall, in its sole and absolute discretion, use such method as
it deems reasonable and appropriate to allocate the aggregate of the 704(c)
Values of Contributed Properties in a single or integrated transaction among the
separate properties on a basis proportional to their respective fair market
values.
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"Special Limited Partner" means a Person admitted to the
Partnership as a Special Limited Partner pursuant to Section 4.2 hereof and who
is shown as such on the books and records of the Partnership.
"Special Limited Partner Interest" means a Partnership
Interest of the Special Limited Partners in the Partnership representing a
fractional part of the Partnership Interests of all Special Limited Partners and
includes any and all benefits to which the holder of such a Partnership Interest
may be entitled as provided in this Agreement, together with all obligations of
such Person to comply with the terms and provisions of this Agreement. A Special
Limited Partner Interest may be expressed as a number of Partnership Units.
"Special Limited Partner Redemption Right" shall have the
meaning set forth in Section 8.4 hereof.
"Special Redeeming Partner" has the meaning set forth in
Section 8.4 hereof.
"Specified Redemption Date" means the tenth (10th)
Business Day after receipt by the General Partner and LXP of a Notice of
Redemption.
"Subsequent Partner" means a Person admitted to
the Partnership as a Partner after the date hereof through the sale or issuance
by the Partnership of additional Partnership Interests and not through the
transfer of existing Partnership Interests.
"Subsidiary" means, with respect to any Person,
any corporation, partnership or other entity of which a majority of (i) the
voting power of the voting equity securities or (ii) the outstanding equity
interests is owned, directly or indirectly, by such Person.
"Substituted Additional Limited Partner" means a
Person who is admitted as an Additional Limited Partner to the Partnership
pursuant to Section 11.4.
"Terminating Capital Transaction" means any sale
or other disposition of all or substantially all of the assets of the
Partnership or a related series of transactions that, taken together, result in
the sale or other disposition of all or substantially all of the assets of the
Partnership.
"Unrealized Gain" attributable to any item of Partnership
property means, as of any date of determination, the
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excess, if any, of (i) the fair market value of such property (as determined
under Exhibit B hereof) as of such date, over (ii) the Carrying Value of such
property (prior to any adjustment to be made pursuant to Exhibit B hereof) as of
such date.
"Unrealized Loss" attributable to any item of Partnership
property means, as of any date of determination, the excess, if any, of (i) the
Carrying Value of such property (prior to any adjustment to be made pursuant to
Exhibit B hereof) as of such date, over (ii) the fair market value of such
property (as determined under Exhibit B hereof) as of such date.
"Underlying Partnership" means Barngiant Xxxxxxxxxx
Associates Limited Partnership, Barnhale Modesto Properties, Xxxxxx Rockshire
Associates Limited Partnership, Barnvyn Bakersfield Associates L.P., Barnhech
Xxxxxxxxxx Associates Limited Partnership, and Barnward Brownsville Properties,
the partnerships in which the Partnership will acquire interests by contribution
from the Property Limited Partners.
ARTICLE 2
ORGANIZATIONAL MATTERS
Section 2.1 Organization
A. The Partnership is a limited partnership formed pursuant to the
provisions of the Act and upon the terms and conditions set forth in the Prior
Agreements. The Partners hereby amend and restate the Prior Agreements in their
entirety as of the date hereof to reflect the admission of the Expansion Limited
Partners into the Partnership. Except as expressly provided herein to the
contrary, the rights and obligations of the Partners and the administration and
termination of the Partnership shall be governed by the Act. The Partnership
Interest of each Partner shall be personal property for all purposes.
Section 2.2 LCIF I Merger
A. GP-1 in its capacity as the general partner of the Partnership, and
LP-1 in its capacity as the limited partner of the Partnership, authorized and
approved the LCIF I Merger and the execution of the LCIF I Merger Agreement by
the Partnership. At the Effective Time, (i) Lex M-1 merged with and into LCIF I,
whereupon the separate existence of Lex M-1 ceased and (ii) LCIF I, also
referred to as the Partnership in this Agreement, was the surviving limited
partnership of the LCIF I Merger.
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B. At the Effective Time:
(1) Each limited partner interest in LCIF I outstanding immediately
prior to the Effective Time was exchanged for either shares of common stock in
LXP, or subordinated notes issued by LXP;
(2) Secured Property Associates L.P.'s interest in LCIF I
outstanding immediately prior to the Effective Time was exchanged for Special
Limited Partner Interests in LCIF I, and Secured Property Associates L.P. was
admitted to the Partnership as a Special Limited Partner;
(3) GP-1's interest in Lex M-1 was cancelled, and GP-1 was admitted
to the Partnership as a general partner of the Partnership; and
(4) LP-1's limited partner interest in Lex M-1 was cancelled, and
LP-1 was admitted to the Partnership as a limited partner of the Partnership.
Section 2.3 Name
The name of the Partnership is Lepercq Corporate Income Fund L.P. The
Partnership's business may be conducted under any other name or names deemed
advisable by the General Partner, including the name of the General Partner or
any Affiliate thereof. The words "Limited Partnership," "L.P.," "Ltd." or
similar words or letters shall be included in the Partnership's name where
necessary for the purposes of complying with the laws of any jurisdiction that
so requires. The General Partner in its sole and absolute discretion may change
the name of the Partnership at any time.
Section 2.4 Registered Office and Agent Principal Office
The address of the registered office of the Partnership in the State of
Delaware is located at 0000 Xxxxxx Xxxxxx, Xxxx xx Xxxxxxxxxx, Xxxxxx of Xxx
Xxxxxx, Xxxxxxxx 00000, and the registered agent for service of process on the
Partnership in the State of Delaware at such registered office is The
Corporation Trust Company. The principal office of the Partnership is located at
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and may be changed to such other
place as the General Partner may from time to time designate. The Partnership
may maintain offices at such other place or places within or outside the State
of Delaware as the General Partner deems advisable.
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Section 2.5 Term
The term of the Partnership commenced on October 5, 1993, the date the
Certificate was filed in the office of the Secretary of State of Delaware in
accordance with the Act and shall continue until December 31, 2093, unless the
Partnership is dissolved sooner pursuant to the provisions of Article 13 or as
otherwise provided by law.
ARTICLE 3
PURPOSE
Section 3.1 Purpose and Business
The purpose and nature of the business to be conducted by the
Partnership is (i) to conduct any business that may be lawfully conducted by a
limited partnership organized pursuant to the Act; provided that such business
shall be limited to and conducted in such a manner as to permit LXP at all times
to be classified as a REIT, unless LXP ceases to qualify as a REIT for reasons
other than the conduct of the business of the Partnership, (ii) to enter into
any partnership, joint venture or other similar arrangement to engage in any of
the foregoing or to own interests in any entity engaged in any of the foregoing
and (iii) to do anything necessary or incidental to the foregoing. In connection
with the foregoing, and without limiting LXP's right in its sole discretion to
cease qualifying as a REIT, the Partners acknowledge that LXP's status as a REIT
inures to the benefit of all the Partners and not solely to LXP.
Section 3.2 Powers
The Partnership shall be empowered to do any and all acts and things
necessary, appropriate, proper, advisable, incidental to or convenient for the
furtherance and accomplishment of the purposes and business described herein and
for the protection and benefit of the Partnership; provided that the Partnership
shall not take, or refrain from taking, any action which, in the judgment of
LXP, in its sole and absolute discretion, (i) could adversely affect the ability
of LXP to continue to qualify as a REIT under Section 857 of the Code, (ii)
could subject LXP to any additional taxes under any Section of the Code or (iii)
could violate any law or regulation of any governmental body or agency having
jurisdiction over LXP or its securities, unless such action (or inaction) shall
have been specifically consented to by LXP in writing.
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Notwithstanding anything to the contrary that may be contained herein,
the Partnership had and continues to have the power and authority to execute,
acknowledge, verify, deliver, file and record any and all documents and
instruments, including the LCIF I Merger Agreement and the LCIF I Merger
Certificate, and to perform any and all acts required by applicable law or which
were or may be necessary or advisable in order to give effect to the
consummation of the LCIF I Merger.
ARTICLE 4
CAPITAL CONTRIBUTIONS
Section 4.1 Capital Contributions of the Partners
As of the date of this Agreement, (i) the Partners shall be deemed to
have made the Capital Contributions set forth in Exhibit A to this Agreement and
(ii) each Partner shall own Partnership Units in the amount set forth for such
Partner in Exhibit A and shall have a Percentage Interest in the Partnership as
set forth for such Partner in Exhibit A, which Percentage Interest shall be
adjusted in Exhibit A from time to time by the General Partner to the extent
necessary to reflect accurately redemptions, Capital Contributions, Capital
Events, the issuance of additional Partnership Units or similar events having an
effect on a Partner's Percentage Interest. Except as provided in Sections 4.2
and 10.4, the Partners shall have no obligation to make any additional Capital
Contributions or loans to the Partnership.
Section 4.2 Issuances of Additional Partnership Interests
A. The General Partner is hereby authorized to cause the Partnership
from time to time to issue to the Partners or other Persons additional
Partnership Units or other Partnership Interests in one or more classes, or one
or more series of any of such classes, with such designations, preferences and
relative, participating, optional or other special rights, powers and duties,
including rights, powers and duties senior to existing Partnership Interests,
all as shall be determined by the General Partner in its sole and absolute
discretion, including, without limitation, (i) the allocations of items of
Partnership income, gain, loss, deduction and credit to each such class or
series of Partnership Interests, (ii) the right of each such class or series of
Partnership Interests to share in Partnership distributions, and (iii) the
rights of each such class or series of Partnership Interests upon dissolution
and liquidation of the Partnership.
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B. Notwithstanding any provision of Section 4.2.A to the contrary, no
such additional Partnership Units or other Partnership Interests shall be issued
to the General Partner, the Initial Limited Partner, LXP or any of their
Subsidiaries unless
(1) (a) the additional Partnership Interests are issued in
connection with an issuance of shares of LXP, which shares have designations,
preferences and other rights, all such that the economic interests are
substantially similar to the designations, preferences and other rights of the
additional Partnership Interests issued to the General Partner, the Initial
Limited Partner, LXP or any of their Subsidiaries in accordance with Section
4.2.A, and (b) LXP through the General Partner or the Limited Partner shall make
a Capital Contribution to the Partnership in an amount equal to the proceeds
raised in connection with the issuance of such shares of LXP, or
(2) the additional Partnership Interests are issued to all Partners
in proportion to their respective Percentage Interests.
ARTICLE 5
DISTRIBUTIONS
Section 5.1 Requirement and Characterization of Distributions
A. General. The General Partner shall distribute quarterly an amount
equal to 100% of the Operating Cash Flow generated by the Partnership during
such quarter to the Partners, who are Partners on the Partnership Record Date
with respect to such quarter in accordance with their respective Percentage
Interests on such Partnership Record Date; provided, that in no event may a
Partner receive a distribution of Operating Cash Flow with respect to a
Partnership Unit if such Partner is entitled to receive a distribution out of
such Operating Cash Flow with respect to a REIT Share for which such Partnership
Unit has been redeemed or exchanged.
B. Property Limited Partners. For purposes of this Section 5.1, a
Property Limited Partner shall be treated as having no Partnership Units and,
therefore, shall not be entitled to receive cash distributions until such
Property Limited Partner's applicable Redemption Exercise Date (or such earlier
date as a Property Limited Partner is entitled to exercise its Property Limited
Partner Redemption Right under the second paragraph of Section 8.4.B); provided,
that the General Partner shall distribute to the Property Limited Partners that
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contributed interests in Barngiant Xxxxxxxxxx Associates Limited Partnership and
Barnhech Xxxxxxxxxx Associates Limited Partnership cash in the amount reflected
on Exhibit A to the extent the Partnership receives cash distributions from the
respective Underlying Partnership pro rata in accordance with their relative
Percentage Interests.
C. Red Butte Limited Partners. Notwithstanding Section 5.1.A, each
Red Butte Limited Partner's share of Operating Cash Flow (other than The LCP
Group, L.P. and Xxxxxxx X. Xxxxx) shall be limited to a cash distribution of
$0.165 per Partnership Unit per quarter ($0.66 per Partnership Unit per annum)
through January 1, 1998, increasing to $0.27 per Partnership Unit per quarter
($1.08 per Partnership Unit per annum) on and after January 1, 1998, provided,
that if LXP reduces its dividend below $1.08 then the distribution to which each
Red Butte Limited Partner is entitled shall be reduced by the percentage
reduction in the LXP dividend. The LCP Group, L.P. and Xxxxxxx X. Xxxxx shall be
entitled to cash distributions of $0.27 per Partnership Unit per quarter ($1.08
per Partnership Unit per annum) commencing on the date hereof or such lower
dividend rate as is payable with respect to the common stock of LXP.
D. Expansion Limited Partners. Notwithstanding Section 5.1.A, LCP
(with respect to all Partnership Units received in connection with the admission
of Expansion Limited Partners) and those Expansion Limited Partners that receive
their Partnership Units as a result of holding a partnership interest in Toy
Properties Associates II or Toy Properties Associates V, shall receive a share
of Operating Cash Flow limited to a cash distribution of $0.28 per Partnership
Unit per quarter ($1.12 per Partnership Unit per annum), provided, that if LXP
reduces its dividend below $1.12 then the distribution to which such Expansion
Limited Partner is entitled shall be reduced by the percentage reduction in the
LXP dividend. Those Expansion Limited Partners that receive their Partnership
Units as a result of holding partnership interests in Fort Street Partners will
receive no dividend until 2006 and then will be entitled to a cash distribution
of $0.28 per Partnership Unit per quarter ($1.12 per Partnership Unit per annum)
beginning in 2006, provided, that if LXP reduces its dividend below $1.12 then
the distribution to which such Expansion Limited Partner is entitled shall be
reduced by the percentage reduction in the LXP dividend.
Section 5.2 Amounts Withheld
All amounts withheld pursuant to the Code or any provisions of any
state or local tax law and Section 10.5 hereof
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with respect to any allocations, payment or distribution to the Partners or the
Assignees shall be treated as amounts distributed to the Partners or the
Assignees pursuant to Section 5.1 for all purposes under this Agreement.
Section 5.3 Distributions Upon Liquidation
Proceeds from a Terminating Capital Transaction, and any other cash
received or reductions in reserves made after commencement of the liquidation of
the Partnership, shall be distributed to the Partners in accordance with Section
13.2.
ARTICLE 6
ALLOCATIONS
Section 6.1 Allocations For Capital Account Purposes
For purposes of maintaining the Capital Accounts and in determining
the rights of the Partners among themselves, the Partnership's items of income,
gain, loss and deduction (computed in accordance with Exhibit B hereof) shall be
allocated among the Partners in each taxable year (or portion thereof) as
provided herein below.
A. Net Income. After giving effect to the special allocations set
forth in Section 1 of Exhibit C, and to the allocations of Net Income to
Property Limited Partners, Red Butte Limited Partners and Expansion Limited
Partners set forth below, Net Income shall be allocated to the General Partner
and the Limited Partners in accordance with their respective Percentage
Interests (determined as a percentage of total Partnership Units outstanding
other than Partnership Units held by Property Limited Partners, Red Butte
Limited Partners, and Expansion Limited Partners); provided, that following (i)
the Effective Date and (ii) the sale or other disposition (in which gain or loss
is recognized) of real properties representing at least fifty (50%) percent of
the Carrying Value of such properties as of the Effective Date, gains from the
sale or other disposition of partnership assets shall be allocated to the
Partners other than the Property Limited Partners, having negative Capital
Accounts, to the extent and in accordance with such negative Capital Accounts
and thereafter to all Partners in accordance with their Percentage Interests;
provided further, that, a Property Limited Partner shall be specially allocated
items of Partnership income and gain prior to such Property Limited Partner's
applicable Redemption Exercise Date to the extent such Property Limited Partner
receives a cash distribution pursuant to Section 5.1;
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provided, further, that a Red Butte Limited Partner and an Expansion Limited
Partner will be allocated taxable income only in an amount equal to the cash
distributions received.
B. Net Losses. After giving effect to the special allocations set
forth in Exhibit C, Net Losses shall be allocated first, to any Partner having a
positive Capital Account in accordance with and to the extent of such positive
Capital Account, and thereafter to the Limited Partners in accordance with their
respective Percentage Interests; provided, that, in no event shall Property
Limited Partners be allocated losses prior to such Property Limited Partner's
applicable Redemption Exercise Date; provided further, that, a portion of the
Partnership's allocable share of an Underlying Partnership's Depreciation shall
be allocated by the Partnership to the Property Limited Partners that
contributed the interests in such Underlying Partnership in an amount equal to
the product of the ratio of such Property Limited Partner's Partnership Units to
the total outstanding Partnership Units held by all Partners and the total
Depreciation allocable to the Partnership from the Underlying Partnership.
C. For purposes of Regulations Section 1.752-3(a)(3), the Partners
agree that Nonrecourse Liabilities of the Partnership in excess of the sum of
the amount of Partnership Minimum Gain and the total amount of Nonrecourse
Built-in Gain shall be allocated first to account for any income or gain to be
allocated to the Property Limited Partners, the Red Butte Limited Partners, and
the Expansion Limited Partners pursuant to Sections 2.B and 2.D of Exhibit C and
then among the Partners in accordance with their respective Percentage
Interests.
D. Any gains upon the sale or other taxable disposition of any
Partnership asset shall, to the extent possible, after taking into account other
required allocations of gain pursuant to Exhibit C that are characterized as
Recapture Income, be allocated to Partners in the same proportions and to the
same extent as such Partners have been allocated any deductions directly or
indirectly giving rise to the treatment of such gains as Recapture Income.
ARTICLE 7
MANAGEMENT AND OPERATIONS OF BUSINESS
Section 7.1 Management
A. Except as otherwise expressly provided in this Agreement, all
management powers over the business and affairs of the Partnership are and shall
be exclusively vested in the
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General Partner. The Limited Partners shall not have any right to participate in
or exercise control or management power over the business and affairs of the
Partnership. The General Partner may not be removed by the Limited Partners. In
addition to the powers now or hereafter granted to a general partner of a
limited partnership under applicable law or which are granted to the General
Partner under any other provision of this Agreement, the General Partner,
subject to Section 7.3 hereof, shall have full power and authority to do all
things deemed necessary or desirable by it to conduct the business of the
Partnership, to exercise all powers set forth in Section 3.2 hereof and to
effectuate the purposes set forth in Section 3.1 hereof, including, without
limitation:
(1) the execution, acknowledgement, verification, delivery, filing
and recording, for and in the name of the Partnership, and, to the extent
necessary, GP-1 and LP-l, of any and all documents and instruments, including
the LCIF I Merger Agreement and the performance of any and all acts required by
applicable law or which GP-1 deems necessary or advisable in order to give
effect to the consummation of the LCIF I Merger;
(2) the making of any expenditures, the lending or borrowing of
money (including, without limitation, making prepayments on loans and borrowing
money to permit the Partnership to make distributions to its Partners in such
amounts as will permit LXP (so long as LXP qualifies as a REIT) to avoid the
payment of any federal income tax (including, for this purpose, any excise tax
pursuant to Section 4981 of the Code) and to make distributions to its
stockholders sufficient to permit LXP to maintain REIT status) and the
assumption or guarantee of, or other contracting for, indebtedness and other
liabilities;
(3) the acquisition, disposition, mortgage, pledge, encumbrance,
hypothecation or exchange of any assets of the Partnership or the merger or
other combination of the Partnership with or into another entity (all of the
foregoing subject to any prior approval only to the extent required by Section
7.3 hereof);
(4) the use of the assets of the Partnership for any purpose
consistent with the terms of this Agreement and on any terms the General Partner
sees fit, and the making of capital contributions or loans to its Subsidiaries;
(5) the management, operation, leasing, landscaping, repair,
alteration, demolition or improvement of any real property or improvements owned
by the Partnership or any Subsidiary of the Partnership;
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(6) the negotiation, execution and performance of any contracts,
conveyances or other instruments that the General Partner considers useful or
necessary to the conduct of the Partnership's operations or the implementation
of the General Partner's powers under this Agreement;
(7) the distribution of Partnership cash or other Partnership assets
in accordance with this Agreement;
(8) the formation of, or acquisition of an interest in, and the
contribution of property to, any further limited or general partnerships or
joint ventures that the General Partner deems desirable;
(9) the undertaking of any action in connection with the
Partnership's direct or indirect investment in its Subsidiaries or any other
Person (including, without limitation, the contribution or loan of funds by the
Partnership to such Persons);
(10) the determination of the fair market value of any Partnership
property distributed in kind using such reasonable method of valuation as the
General Partner may adopt;
(11) the exercise, directly or indirectly, through any
attorney-in-fact acting under a general or limited power of attorney, of any
right, including the right to vote, appurtenant to any asset or investment held
by the Partnership; and
(12) the making, execution and delivery of any and all deeds,
leases, notes, deeds to secure debt, mortgages, deeds of trust, security
agreements, conveyances, contracts, guarantees, warranties, indemnities,
waivers, releases or legal instruments or agreements in writing necessary or
appropriate in the judgment of the General Partner for the accomplishment of any
of the powers of the General Partner enumerated in this Agreement.
B. At all times from and after the date hereof, the General Partner may
cause the Partnership to obtain and maintain (i) casualty, liability and other
insurance on the properties of the Partnership and (ii) liability insurance for
the Indemnitees hereunder.
C. At all times from and after the date hereof, the General Partner may
cause the Partnership to establish and maintain any and all reserves, working
capital accounts and other cash or similar balances in such amounts as the
General Partner,
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in its sole discretion, deems appropriate and reasonable from time to time.
D. In exercising its authority under this Agreement, the General
Partner may, but shall not be obligated to, take into account the tax
consequences to any Partner of any action taken by it. The General Partner and
the Partnership shall not, however, have liability to an Additional Limited
Partner under any circumstances as a result of an income tax liability incurred
by such Additional Limited Partner as a result of an action (or inaction) by the
General Partner pursuant to its authority under this Agreement.
Section 7.2 Certificate of Limited Partnership
To the extent that such action is determined by the General Partner
to be reasonable and necessary or appropriate, the General Partner shall file
amendments to the Certificate and do all the things to maintain the Partnership
as a limited partnership (or a partnership in which the limited partners have
limited liability) under the laws of the State of Delaware and each other state,
or the District of Columbia, in which the partnership may elect to do business
or own property. The General Partner shall use all reasonable efforts to cause
to be filed such other certificates or documents as may be reasonable and
necessary or appropriate for the formation, continuation, qualification and
operation of a limited partnership (or a partnership in which the limited
partners have limited liability to the extent provided by applicable law) in the
State of Delaware and any other state, or the District of Columbia, in which the
Partnership may elect to do business or own property.
Section 7.3 Restrictions on Authority
After the Effective Date, without the consent of holders of a
majority of the outstanding Partnership Units held by the Special Limited
Partners, the General Partner may not consent to the Partnership participating
in any merger, consolidation or other combination with or into another Person or
sale of all or substantially all of its assets.
Without the unanimous consent of the Red Butte Limited Partners, the
General Partner shall not dispose of its interest in the Red Butte Property
prior to January 1, 2001 except in the event of a foreclosure or in the event
that the General Partner determines that the failure to dispose of the Red Butte
Property would result in the disqualification of LXP as a real estate investment
trust under the Code. In addition, through January 1, 2001, the General Partner
shall not take any action that will
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result in a reduction in any Limited Partner's share of nonrecourse liabilities
attributable to the Limited Partner's LCIF Units by an amount which would cause
a taxable event to the Limited Partners.
Section 7.4 Reimbursement of LXP
A. Except as provided in this Section 7.4 and elsewhere in this
Agreement (including the provisions of Articles 5 and 6 regarding distributions,
payments and allocations to which it may be entitled), the General Partner shall
not be compensated for its services as general partner of the Partnership.
B. LXP and the General Partner shall be reimbursed on a monthly
basis, or such other basis as LXP may determine in its sole and absolute
discretion, for all expenses LXP incurs relating to the ownership and operation
of, or for the benefit of, the Partnership; provided that the amount of such
reimbursement shall be reduced by the product of (i) the Relative Interest and
(ii) any interest earned by LXP or the General Partner with respect to bank
accounts or other instruments or accounts held by either of them on behalf of
the Partnership as permitted in Section 7.5.A. Such reimbursements shall be in
addition to any reimbursement to LXP or the General Partner as a result of
indemnification pursuant to Section 7.6 hereof.
C. LXP shall also be reimbursed by the Partnership for the product
of (i) the Relative Interest and (ii) all expenses LXP incurs relating to the
reorganization of LXP, the Partnership, the General Partner and the Limited
Partner, and any other issuance of REIT Shares pursuant to Section 4.2 hereof.
D. In the event that LXP shall elect to purchase from stockholders
REIT Shares pursuant to any stock repurchase program or for the purpose of
delivering such REIT Shares to satisfy an obligation under Section 8.4 of this
Agreement, any dividend reinvestment program adopted by LXP, any employee stock
purchase plan adopted by LXP, or any other similar obligation or arrangement
undertaken by LXP in the future, the purchase price paid by LXP for such REIT
Shares and any other expenses incurred by LXP in connection with such purchase
shall be considered expenses of the Partnership and shall be reimbursed to LXP
to such extent, subject to the condition that, if such REIT Shares are sold, the
General Partner shall contribute to the Partnership, through the General or
Limited Partner, any proceeds received by the General Partner for such REIT
Shares (provided that REIT shares delivered to an Additional Limited Partner in
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exchange for Partnership Units pursuant to Section 8.4 shall not be considered a
sale of REIT Shares for such purpose).
Section 7.5 Outside Activities of and Participation in Other
Transactions by LXP and the General Partner
Without the consent of holders of a majority of the outstanding
Partnership Units held by the Special Limited Partners, LXP agrees that,
following the Effective Date, it will not (i) permit the General Partner or the
Initial Limited Partner to issue additional shares of capital stock, (ii)
assign, sell, pledge, hypothecate or otherwise transfer any outstanding shares
of capital stock in the General Partner or in the Initial Limited Partner, (iii)
permit the General Partner or the Initial Limited Partner to incur any
indebtedness or to engage in any business other than to hold and own the
Partnership Interests in the Partnership or (iv) allow or consent to any merger,
consolidation or other combination of the General Partner or the Initial Limited
Partner with or into another Person or the sale of all or substantially all of
its assets.
Section 7.6 Indemnification
A. The Partnership shall indemnify and hold harmless each Indemnitee
from and against any and all losses, claims, damages, liabilities, joint or
several, expenses (including, without limitation, attorney's fees and other
legal fees and expenses), judgments, fines, settlements, and other amounts
arising from any and all claims, demands, actions, suits or proceedings, civil,
criminal, administrative or investigative, that relate to the Mergers or to the
operations of the Partnership as set forth in this Agreement in which such
Indemnitee may be involved, or is threatened to be involved, as a party or
otherwise; provided that the Partnership shall not indemnify an Indemnitee for
such Indemnitee's breach of duty of loyalty to the Partnership or for acts or
omissions not taken by the Indemnitee in good faith or which involve intentional
misconduct or a knowing violation of law or in which such Indemnitee received an
improper personal benefit. The General Partner is hereby authorized and
empowered, on behalf of the Partnership, to enter into one or more indemnity
agreements consistent with the provisions of this Section 7.6 in favor of any
Indemnitee having or potentially having liability for any such indebtedness. It
is the intention of this Section 7.6.A that the Partnership indemnify each
Indemnitee to the fullest extent permitted under the Act. The termination of any
proceeding by judgment, order or settlement does not create a presumption that
the Indemnitee did not meet the requisite standard of conduct set forth in this
Section 7.6.A. The
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termination of any proceeding by conviction of an Indemnitee or upon a plea of
nolo contendere or its equivalent by an Indemnitee, or an entry of an order of
probation against an Indemnitee prior to judgment, creates a rebuttable
presumption that such Indemnitee acted in a manner contrary to that specified in
this Section 7.6.A with respect to the subject matter of such proceeding.
B. Reasonable expenses incurred by an Indemnitee who is a party to a
proceeding may be paid or reimbursed by the Partnership in advance of the final
disposition of the proceeding upon receipt by the Partnership of (i) a written
affirmation by the Indemnitee of the Indemnitee's good faith belief that the
standard of conduct necessary for indemnification by the Partnership as
authorized in Section 7.6.A has been met and (ii) a written undertaking by or on
behalf of the Indemnitee to repay the amount if it shall ultimately be
determined that the standard of conduct has not been met.
C. The indemnification provided by this Section 7.6 shall be in
addition to any other rights to which an Indemnitee or any other Person may be
entitled under any agreement, pursuant to any vote of the Partners, as a matter
of law or otherwise.
D. The Partnership may, but shall not be obligated to, purchase and
maintain insurance on behalf of any of the Indemnitees and such other Persons as
the General Partner shall determine against any liability that may be asserted
against or expenses that may be incurred by such Person in connection with the
Partnership's activities, regardless of whether the Partnership would have the
power to indemnify such Person against such liability under the provisions of
this Agreement.
E. In no event may an Indemnitee subject any of the Partners to
personal liability by reason of the indemnification provisions set forth in this
Agreement.
F. The provisions of this Section 7.6 are for the benefit of the
Indemnitees, their heirs, successors, assigns and administrators and shall not
be deemed to create any rights for the benefit of any other Persons. Any
amendment, modification or repeal of this Section 7.6 or any provision hereof
shall be prospective only and shall not in any way affect the limitations on the
Partnership's liability to any Indemnitee under this Section 7.6 as in effect
immediately prior to such amendment, modification or repeal with respect to
claims arising from or relating to matters occurring, in whole or in part, prior
to such amendment, modification or repeal, regardless of when such claims may
arise or be asserted.
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ARTICLE 8
RIGHTS AND OBLIGATIONS OF THE LIMITED PARTNERS
Section 8.1 Management of Business
The Limited Partners and Assignees shall not take part in the
operation, management or control of the Partnership's business, transact any
business in the Partnership's name or have the power to sign documents for or
otherwise bind the Partnership. The transaction of any such business by the
General Partner, any of its Affiliates or any officer, director, employee,
partner, agent or trustee of the General Partner, the Partnership or any of
their Affiliates, in their capacity as such, shall not affect, impair or
eliminate the limitations on the liability of the Limited Partners or Assignees
under this Agreement.
Section 8.2 Outside Activities of Additional Limited Partners
Neither the Partnership nor any Partners shall have any rights by
virtue of this Agreement in any business ventures of any Additional Limited
Partner or Assignee. None of the Additional Limited Partners nor any other
Person shall have any rights by virtue of this Agreement or the partnership
relationship established hereby in any business ventures of any other Person
(other than the General Partner and the Initial Limited Partner to the extent
expressly provided herein) and such Person shall have no obligation pursuant to
this Agreement or otherwise to offer any interest in any such business ventures
to the Partnership, any Additional Limited Partner or any such other Person,
even if such opportunity is of a character which, if presented to the
Partnership, any Additional Limited Partner, or such other Person, could be
taken by such Person.
Section 8.3 Return of Capital
Except pursuant to the right of redemption set forth in Section 8.4,
no Partner shall be entitled to the withdrawal or return of his Capital
Contribution, except to the extent of distributions made pursuant to this
Agreement or upon termination of the Partnership as provided herein.
Section 8.4 Redemption Rights
A. Subject to Section 8.4.C, on or at any time after the Effective
Date, each Special Limited Partner shall have the right (the "Special Limited
Partner Redemption Right") to require
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the Partnership to redeem on a Specified Redemption Date all or a portion of the
Partnership Units held by such Special Limited Partner for the Redemption Amount
to be delivered by the Partnership. The Special Limited Partner Redemption Right
shall be exercised pursuant to a Notice of Redemption delivered to the General
Partner and LXP by the Special Limited Partner who is exercising the Special
Limited Partner Redemption Right (the "Special Redeeming Partner"). A Special
Limited Partner may not exercise the Redemption Right for fewer than one
thousand (1,000) Partnership Units or, if such Special Limited Partner holds
fewer than one thousand (1,000) Partnership Units, all of the Partnership Units
held by such Special Limited Partner. The Special 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 Assignee of any
Special Limited Partner may exercise the rights of such Special Limited Partner
pursuant to this Section 8.4, and such Special Limited Partner shall be deemed
to have assigned such rights to such Assignee and shall be bound by the exercise
of such rights by such Special Limited Partner's Assignee. In connection with
any exercise of such rights by such Assignee on behalf of such Special Limited
Partner, the Redemption Amount shall be delivered by the Partnership directly to
such Assignee and not to such Special Limited Partner.
B. Subject to Section 8.4.D, on the applicable Redemption Exercise
Date, or on each one year anniversary thereafter, each Property Limited Partner
shall have the right (the "Property Limited Partner Redemption Right") to
require the Partnership to redeem on a Specified Redemption Date all, but not
less than all, of the Partnership Units held by such Property Limited Partner
for the Redemption Amount to be delivered by the Partnership. The Property
Limited Partner Redemption Right shall be exercised pursuant to a Notice of
Redemption delivered to the General Partner and LXP by the Property Limited
Partner who is exercising the redemption right (the "Property Redeeming
Partner"). The Property 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 Assignee of any Property Limited Partner may
exercise the rights of such Property Limited Partner pursuant to this Section
8.4.B., and such Property Limited Partner shall be deemed to have assigned such
rights to such Assignee and shall be bound by the exercise of such rights by
such Property Limited Partner's Assignee. In connection with any exercise of
such rights by such Assignee on behalf of such Property Limited Partner, the
Redemption Amount shall be delivered by the Partnership directly to such
Assignee and not to such Property Limited Partner.
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Notwithstanding any other provision of this Section 8.4.B, if the
Partnership disposes of its interest in an Underlying Partnership, or if an
Underlying Partnership disposes of substantially all of its assets, then the
General Partner shall provide prompt written notification to the Property
Limited Partners that contributed interests in such Underlying Partnership, and
each such Property Limited Partner may exercise its Property Limited Partner
Redemption Right on the last Business Day of the calendar year in which such
disposition occurs or, if later, ten (10) Business Days following the
consummation of such transaction.
C. LXP hereby agrees to enter into a Guaranty Agreement with the
Partnership on the Effective Date, on terms reasonably satisfactory to LXP and
the Partnership, pursuant to which LXP shall guaranty the obligations of the
Partnership under Section 8.4.A and arrange for the delivery, if the Partnership
is unable, of the Redemption Amount on the Specified Redemption Date, whereupon
LXP or, if specified by LXP, the General Partner shall acquire the Partnership
Units offered for redemption by the Special Redeeming Partner and shall be
treated for all purposes of this Agreement as the owner of such Partnership
Units. Each of the Special Redeeming Partner, LXP, the Partnership, and the
General Partner shall treat the transaction between LXP and the Special
Redeeming Partner as a sale of the Special Redeeming Partner's Partnership Units
to LXP or the General Partner, as the case may be, for federal income tax
purposes. Each Special Redeeming Partner agrees to execute such documents as LXP
or the General Partner may reasonably require in connection with the issuance of
REIT Shares upon exercise of the Special Limited Partner Redemption Right.
D. LXP hereby further agrees to enter into a Guaranty Agreement with
the Partnership on the Property Partners Closing Date, on terms reasonably
satisfactory to LXP and the Partnership, pursuant to which LXP shall guaranty
the obligations of the Partnership under Section 8.4.B to pay the Redemption
Amount on the Specified Redemption Date, whereupon the Partnership shall acquire
the Partnership Units offered for redemption by the Property Redeeming Partner.
Each of the Property Redeeming Partner, LXP, the Partnership, and the General
Partner shall treat the transaction between LXP and the Property Redeeming
Partner as a sale of the Property Redeeming Partner's Partnership Units to LXP
or the General Partner, as the case may be, for federal income tax purposes.
Each Property 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 Property Limited Partner Redemption Right.
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E. Following the date that at least 50% of the Partnership Units
held by the Special Limited Partners immediately following the Effective Date
have been redeemed in accordance with the provisions of Section 8.4, LXP or the
General Partner may require the remaining Special Limited Partners to redeem
their Partnership Units for the Redemption Amount to be delivered by the
Partnership. The right of LXP or the General Partner under this Section 8.4.E
shall be exercised pursuant to a notice delivered to all remaining Special
Limited Partners. Such redemption shall be effective on the date specified in
the notice, which date shall be at least 30 days after the notice is sent to the
Special Limited Partners.
At any time that (i) LXP shall be considering a sale of all or
substantially all of its assets, or a merger, consolidation, stock issuance,
stock redemption or other similar transaction that would result in a change in
the beneficial ownership of LXP by 50% or more, or (ii) the Partnership shall be
considering a sale of all or substantially all of its assets or a merger,
consolidation, or issuance or redemption of partnership interests which would
result in a change in the beneficial ownership in LCIF capital or profits of 50%
or more, then the General Partner shall have the right to redeem the Partnership
Units held by all, but not less than all, of the Additional Limited Partners
(other than the Special Limited Partners) for the Redemption Amount provided
that such redemption is contingent upon the completion of such transaction. In
such event, the General Partner shall provide notice to the Limited Partners and
such Limited Partners shall be required to surrender their Partnership Units for
cancellation. The rights of such Additional Limited Partners shall be limited to
the receipt of the Redemption Amount.
F. In connection with any REIT Shares delivered to any Additional
Limited Partner upon the redemption of Partnership Units held by such Additional
Limited Partner, it is intended that such Additional Limited Partner be able to
resell publicly such REIT Shares pursuant to the provisions Rule 144 under the
Securities Act of 1933, but without the need to comply with the holding period
requirements of Rule 144(d). To the extent that counsel to LXP reasonably
determines that resales of any such REIT Shares cannot be made pursuant to the
provisions of Rule 144, and without the need to comply with the holding period
requirements of Rule 144(d), LXP agrees, at its sole cost and expense, if
requested by Special Limited Partners representing a majority of the Partnership
Units (including REIT Shares delivered upon exchange of such Partnership Units)
held by such Special Limited Partners, or by Additional Limited Partners
representing a majority of the Partnership Units (including REIT
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Shares delivered upon the exchange of such Partnership Units) held by such class
of Additional Limited Partners, to include REIT Shares that may be (or already
have been) acquired by any Special Limited Partner or any Additional Limited
Partner, as the case may be, in an effective registration statement under the
Securities Act of 1933; provided that LXP's obligations to include such REIT
Shares in such an effective registration statement shall be conditioned upon
Special Limited Partners representing a majority of the Partnership Units
(including REIT Shares delivered upon exchange of such Partnership Units) held
by such Special Limited Partners or, where applicable, by Additional Limited
Partners representing a majority of the Partnership Units (including REIT Shares
delivered upon the exchange of such Partnership Units) held by such class of
Additional Limited Partners, agreeing to be bound by a customary registration
rights agreements to be prepared by LXP. In addition, any Additional Limited
Partner whose REIT Shares are included in such registration statement must also
agree to be bound by the terms and provisions of a registration rights
agreement.
G. Notwithstanding the provisions of Section 8.4.A, Section 8.4.B,
Section 8.4.C, Section 8.4.D, and Section 8.4.I, a Subsequent Partner shall not
be entitled to exercise the Redemption Right pursuant to Section 8.4.A, Section
8.4.B, or Section 8.4.I if the delivery of REIT Shares to such Subsequent
Partner on the Specified Redemption Date would be prohibited under the
Certificate of Incorporation and shall be subject in any event to the issuance
of REIT Shares being in compliance with all applicable Federal and State
securities laws.
H. Notwithstanding any other provision of this Agreement, upon the
occurrence of a Capital Event prior to the Redemption Exercise Date, the
proceeds of which are distributed to the Partners, and ultimately
proportionately to the shareholders of LXP, the Percentage Interest of each
Partner shall, from the date of such Capital Event, be equal to (i) the product
of (a) such Partner's Percentage Interest prior to such Capital Event and (b)
the difference between (x) the fair market value of the assets of the
Partnership and (y) any amounts distributed to such Partner as a result of the
Capital Event, divided by (ii) the fair market value of the assets of the
Partnership after such distribution. The General Partner shall adjust the number
of Partnership Units owned by each Partner to appropriately reflect the
adjustments made by this Section 8.4.H.
I. On May 22, 1998, and on each January 15 thereafter beginning
January 15, 1999, each Red Butte Limited Partner shall have the right (the "Red
Butte Limited Partner Redemption Right") to require the Partnership to redeem on
a
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Specified Redemption Date all, but not less than all, of the Partnership Units
held by a Red Butte Limited Partner for the Redemption Amount to be delivered by
the Partnership. The Red Butte Limited Partner Redemption Right shall be
exercised pursuant to a Notice of Redemption delivered to the General Partner
and LXP by the Red Butte Limited Partner who is exercising the redemption right
(the "Red Butte Redeeming Partner"). The Red Butte 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 Assignee of any Red
Butte Limited Partner may exercise the rights of such Red Butte Limited Partner
pursuant to the exercise of this Section 8.4.I, and such Red Butte Limited
Partner shall be deemed to have assigned such rights to such Assignee and shall
be bound by the exercise of such rights by such Red Butte Limited Partner's
Assignee. In connection with any exercise of such rights by such Assignee on
behalf of such Red Butte Limited Partner, the Redemption Amount shall be
delivered by the Partnership directly to such Assignee and not to such Red Butte
Limited Partner.
The Partnership hereby covenants not to dispose of its interest in
the Red Butte Property prior to January 1, 2001. Notwithstanding the foregoing,
if the Partnership does dispose of its interest prior to May 22, 1998, then the
General Partner shall provide prompt written notification to the Red Butte
Limited Partners of such disposition and each such Red Butte Limited Partner may
exercise its Red Butte Limited Partner Redemption Right on the last Business Day
of the calendar year in which such disposition occurs or, if later, ten (10)
Business Days following the consummation of such transaction.
LXP agrees to enter into a Guaranty Agreement with the Partnership
on the Red Butte Partners Closing Date, on terms reasonably satisfactory to LXP
and the Partnership, pursuant to which LXP shall guaranty the obligations of the
Partnership under this Section 8.4.I to pay the Redemption Amount on the
Specified Redemption Date, whereupon the Partnership shall acquire the
Partnership Units offered for redemption by the Red Butte Redeeming Partner.
Each of the Red Butte Redeeming Partner, LXP, the Partnership and the General
Partner shall treat the transaction between LXP and the Red Butte Redeeming
Partner as a sale of the Red Butte Redeeming Partner's Partnership Units to LXP
or the General Partner, as the case may be, for federal income tax purposes.
Each Red Butte 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 Red Butte Limited Partner Redemption Right.
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J. On January 15, 1999 (January 15, 2006 for each Expansion Limited
Partner receiving an interest as a result of his interest in Fort Street
Partners Limited Partnership), and on each January 15 thereafter, each Expansion
Limited Partner shall have the right (the "Expansion Limited Partner Redemption
Right") to require the Partnership to redeem on a Specified Redemption Date all,
but not less than all, of the Partnership Units held by an Expansion Limited
Partner for the Redemption Amount to be delivered by the Partnership. The
Expansion Limited Partner Redemption Right shall be exercised pursuant to a
Notice of Redemption delivered to the General Partner and LXP by the Expansion
Limited Partner who is exercising the redemption right (the "Expansion Redeeming
Partner"). The Expansion 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 Assignee of any Expansion Limited Partner may
exercise the rights of such Expansion Limited Partner pursuant to the exercise
of this Section 8.4.I, and such Expansion Limited Partner shall be deemed to
have assigned such rights to such Assignee and shall be bound by the exercise of
such rights by such Expansion Limited Partner's Assignee. In connection with any
exercise of such rights by such Assignee on behalf of such Expansion Limited
Partner, the Redemption Amount shall be delivered by the Partnership directly to
such Assignee and not to such Expansion Limited Partner.
The Partnership hereby covenants not to dispose of its interest in
any of the Expansion Properties prior to January 1, 2001. Notwithstanding the
foregoing, if the Partnership does dispose of its interest prior to January 15,
1999, then the General Partner shall provide prompt written notification to the
Expansion Limited Partners of such disposition and each such Expansion Limited
Partner may exercise its Expansion Limited Partner Redemption Right on the last
Business Day of the calendar year in which such disposition occurs or, if later,
ten (10) Business Days following the consummation of such transaction.
LXP agrees to enter into a Guaranty Agreement with the Partnership
on the Expansion Partners Closing Date, on terms reasonably satisfactory to LXP
and the Partnership, pursuant to which LXP shall guaranty the obligations of the
Partnership under this Section 8.4.I to pay the Redemption Amount on the
Specified Redemption Date, whereupon the Partnership shall acquire the
Partnership Units offered for redemption by the Expansion Redeeming Partner.
Each of the Expansion Redeeming Partner, LXP, the Partnership and the General
Partner shall treat the transaction between LXP and the Expansion Redeeming
Partner as a sale of the Expansion Redeeming Partner's Partnership Units to LXP
or the General Partner, as the case may be, for federal
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income tax purposes. Each Expansion 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 Expansion Limited Partner
Redemption Right.
ARTICLE 9
BOOKS, RECORDS, ACCOUNTING AND REPORTS
Section 9.1 Records and Accounting
The General Partner shall keep or cause to be kept at the principal
office of the Partnership those records and documents required to be maintained
by the Act and other books and records deemed by the General Partner to be
appropriate with respect to the Partnership's business. The books of the
Partnership shall be maintained, for financial and tax reporting purposes, on an
accrual basis in accordance with generally accepted accounting principles, or on
such other basis as the General Partner determines to be necessary or
appropriate.
Section 9.2 Fiscal Year
The fiscal year of the Partnership shall be the calendar year.
ARTICLE 10
TAX MATTERS
Section 10.1 Preparation of Tax Returns
The General Partner shall arrange for the preparation and timely
filing of all returns of Partnership income, gains, deductions, losses and other
items required of the Partnership for federal and state income tax purposes and
shall use all reasonable efforts to furnish, within ninety (90) days of the
close of each taxable year, the tax information reasonably required by the
Additional Limited Partners for federal and state income tax reporting purposes.
Section 10.2 Tax Elections
Except as otherwise provided herein, the General Partner shall, in
its sole and absolute discretion, determine whether to make any available
election pursuant to the Code; provided that the General Partner shall make the
election under Section 754 of the Code in accordance with applicable Regulations
thereunder. The General Partner shall have the right to seek to
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revoke any such elections (including, without limitation, the election under
Section 754 of the Code) upon the General Partner's determination in its sole
and absolute discretion that such revocation is in the best interests of the
Partners.
Section 10.3 Tax Matters Partner
A. The General Partner shall be the "tax matters partner" of the
Partnership for federal income tax purposes. The tax matters partner is
authorized but not required, to take any action on behalf of the Partners of the
Partnership in connection with any tax audit or judicial review proceeding to
the extent permitted by law.
B. The taking of any action and the incurring of any expense by the
tax matters partner in connection with any such audit or proceeding, except to
the extent required by law, is a matter in the sole and absolute discretion of
the tax matters partner and the provisions relating to indemnification of the
General Partner set forth in Section 7.7 of this Agreement shall be fully
applicable to the tax matters partner in its capacity as such.
C. The tax matters partner shall receive no compensation for its
services. All third party costs and expenses incurred by the tax matters partner
in performing its duties as such (including legal and accounting fees and
expenses) shall be borne by the Partnership. Nothing herein shall be construed
to restrict the Partnership from engaging an accounting firm to assist the tax
matters partner in discharging its duties hereunder, so long as the compensation
paid by the Partnership for such services is reasonable.
Section 10.4 Withholding
Each Additional Limited Partner hereby authorizes the Partnership to
withhold from or pay on behalf of or with respect to such Additional Limited
Partner any amount of federal, state, local, or foreign taxes that the General
Partner determines that the Partnership is required to withhold or pay with
respect to any amount distributable or allocable to such Additional Limited
Partner pursuant to this Agreement. Any amount paid on behalf of or with respect
to an Additional Limited Partner shall constitute a loan by the Partnership to
such Additional Limited Partner which loan shall be repaid by such Additional
Limited Partner within fifteen (15) days after notice from the General Partner
that such payment must be made unless (i) the Partnership withholds such payment
from a distribution which would otherwise be made to such Additional Limited
Partner or (ii) the General
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Partner determines, in its sole and absolute discretion, that such payment may
be satisfied out of the available funds of the Partnership which would, but for
such payment, be distributed to Additional Limited Partner. Any amounts withheld
pursuant to the foregoing clauses (i) or (ii) shall be treated as having been
distributed to such Additional Limited Partner. Any amounts payable by a Limited
Partner hereunder shall bear interest at the base rate on corporate loans at
large United States money center commercial banks, as published from time to
time in The Wall Street Journal, such interest to accrue from the date such
amount is due (i.e., fifteen (15) days after demand) until such amount is paid
in full.
ARTICLE 11
TRANSFERS AND WITHDRAWALS
Section 11.1 Transfer
A. The term "transfer," when used in this Article 11 with respect to
a Partnership Unit, shall be deemed to refer to a transaction by which a Partner
purports to assign all or any part of its Partnership Interest to another
Person, and includes a sale, assignment, gift, pledge, encumbrance,
hypothecation, mortgage, exchange or any other disposition by law or otherwise.
The term "transfer" when used in this Article 11 does not include any redemption
of Partnership Units by an Additional Limited Partner or acquisition of
Partnership Units from an Additional Limited Partner by the General Partner
pursuant to Section 8.4.
B. No Partnership Interest shall be transferred, in whole or in
part, except in accordance with the terms and conditions set forth in this
Article 11. Any transfer or purported transfer of a Partnership Interest not
made in accordance with this Article 11 shall be null and void.
Section 11.2 Transfer of Partnership Interests by the General
Partner and the Initial Limited Partner
A. The General Partner may not transfer any of its General Partner
Interest except to the Initial Limited Partner or to LXP. The General Partner
may not withdraw as General Partner except in connection with the complete
transfer of its Partnership Interest as permitted hereunder.
B. The Initial Limited Partner may not transfer any of its
Partnership Interests, except to the General Partner or to LXP. The Initial
Limited Partner may not withdraw as Initial
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Limited Partner except in connection with the complete transfer of its
Partnership Interest as permitted hereunder.
C. If LXP acquires any or all of the Partnership Interests of the
General Partner or the Initial Limited Partner as permitted hereunder, LXP
agrees that it will not transfer any of its Partnership Interests, except to the
Initial Limited Partner or to the General Partner. LXP may not withdraw as
Partner except in connection with the complete transfer of any Partnership
Interest as permitted hereunder.
D. Any transferee who acquires a Partnership Interest under this
Section 11.2 may become a Substituted Additional Limited Partner, or a successor
General Partner upon such terms specified by the General Partner, including the
delivery to the General Partner of such documents or instruments, including
powers of attorney, as may be required in the discretion of the General Partner
in order to effect such Person's admission as a Partner.
Section 11.3 Additional Limited Partners' Rights to Transfer
A. Subject to the provisions of Section 11.3.E, no Additional
Limited Partner shall have the right to transfer all or any portion of its
Partnership Interest, or any of such Additional Limited Partner's rights as a
Special Limited Partner, a Property Limited Partner, a Red Butte Limited
Partner, or an Expansion Limited Partner, as the case may be, without the prior
written consent of the General Partner, which consent may be given or withheld
by the General Partner in its sole and absolute discretion. Any purported
transfer of a Partnership Interest by an Additional Limited Partner in violation
of this Section 11.3.A shall be void ab initio and shall not be given effect for
any purpose by the Partnership.
B. If an Additional Limited Partner is subject to Incapacity, the
executor, administrator, trustee, committee, guardian, conservator or receiver
of such Additional Limited Partner's estate shall have all the rights of a
Special Limited Partner, a Property Limited Partner, a Red Butte Limited
Partner, or an Expansion Limited Partner, as the case may be, but no more rights
than those enjoyed by other Special Limited Partners, Property Limited Partners,
or Red Butte Limited Partners, as the case may be, for the purpose of settling
or managing the estate and such power as the Incapacitated Additional Limited
Partner possessed to transfer all or any part of its interest in the
Partnership. The Incapacity of an Additional Limited Partner, in and of itself,
shall not dissolve or terminate the Partnership.
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C. The General Partner may prohibit any transfer otherwise
permitted under Section 11.3.E by an Additional Limited Partner of his
Partnership Units (i) if, in the opinion of legal counsel to the Partnership,
such transfer would require filing of a registration statement under the
Securities Act of 1933 or would otherwise violate any federal, state, or foreign
securities laws or regulations applicable to the Partnership or the Partnership
Units or, (ii) if the transferring Additional Limited Partner, fails or is
unable to obtain and deliver to the Partnership, after request therefor is made
by the General Partner, a legal opinion from counsel acceptable to the General
Partner, addressed to the Partnership and the General Partner, that such
registration is not required in connection with such transfer and that such
transfer does not violate any federal, state or foreign securities laws or
regulations applicable to the Partnership or the Partnership Units.
D. No transfer by an Additional Limited Partner of its
Partnership Units may be made to any Person if (i) in the opinion of legal
counsel for the Partnership, it would result in the Partnership being treated as
an association taxable as a corporation or (ii) such transfer is effectuated
through an "established securities market" or a "secondary market (or the
substantial equivalent thereof)" within the meaning of Section 7704(b) of the
Code.
E. Notwithstanding the provisions of Section 11.3.A (but
subject to the provisions of Section 11.3.C and 11.3.D), an Additional Limited
Partner may, with or without the consent of the General Partner, transfer all or
a portion of his Partnership Units to (i)(a) a member of his Immediate Family,
or a trust for the benefit of a member of his Immediate Family, (b) an
organization that qualifies under Section 501(c)(3) of the Code and that is not
a private foundation within the meaning of Section 509(a) of the Code or (c) a
partner in the Additional Limited Partner in a distribution by that Additional
Limited Partner to its partners under the partnership agreement of such
Additional Limited Partner or (ii) a lender as security for a loan made to or
guaranteed by the Additional Limited Partner, provided that in connection with
any such transfer the lender does not acquire greater rights with respect to the
Partnership Units than those held by the transferring Additional Limited
Partner.
Section 11.4 Substituted Additional Limited Partners
A. No Additional Limited Partner shall have the right to
substitute a transferee in his place. The General Partner shall, however, have
the right to consent to the
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admission of a transferee of the interest of an Additional Limited Partner
pursuant to this Section 11.4 as a Substituted Additional Limited Partner which
consent may be given or withheld by the General Partner in its sole and absolute
discretion. The General Partner's failure or refusal to permit a transferee of
any such interests to become a Substituted Additional Limited Partner shall not
give rise to any cause of action against the Partnership or any Partner.
B. A transferee who has been admitted as a Substituted
Additional Limited Partner in accordance with this Article 11 shall have all the
rights and powers and be subject to all the restrictions and liabilities of the
transferor Additional Limited Partner under this Agreement.
C. Upon the admission of a Substituted Additional Limited
Partner, the General Partner shall amend Exhibit A, where applicable, to reflect
the name, address, number of Partnership Units, and Percentage Interest of such
Substituted Additional Limited Partner, and to eliminate or adjust, if
necessary, the name, address and interest of the predecessor of such Substituted
Additional Limited Partner.
Section 11.5 Assignees
If the General Partner, in its sole and absolute discretion,
does not consent to the admission of any permitted transferee under Section 11.3
as an Additional Limited Partner, as described in Section 11.4, such transferee
shall be considered an Assignee for purposes of this Agreement. An Assignee
shall be deemed to have had assigned to it, and shall be entitled to receive,
distributions from the Partnership and the share of Net Income, Net Losses,
Recapture Income, and any other items of income, gain, loss, deduction and
credit of the Partnership attributable to the Partnership Units assigned to such
transferee, but shall not be deemed to be a holder of Partnership Units for any
other purpose under this Agreement, and shall not be entitled to vote such
Partnership Units in any matter presented to the Additional Limited Partners for
a vote (such Partnership Units being deemed to have been voted on such matter in
the same proportion as all other Partnership Units held by Special Limited
Partners, Property Limited Partners, Red Butte Limited Partners, Expansion
Limited Partners, or other Additional Limited Partners, where applicable, are
voted). In the event any such transferee desires to make a further assignment of
any such Partnership Units, such transferee shall be subject to all the
provisions of this Article 11 to the same extent and in the same manner as any
Additional Limited Partner desiring to make an assignment of Partnership Units.
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Section 11.6 General Provisions
A. No Additional Limited Partner may withdraw from the
Partnership other than as a result of a permitted transfer of all of such
Additional Limited Partner's Partnership Units in accordance with this Article
11 or pursuant to redemption of all of its Partnership Units under Section 8.4.
B. Any Additional Limited Partner who shall transfer all of
his Partnership Units in a transfer permitted pursuant to this Article 11 shall
cease to be an Additional Limited Partner upon the admission of an Assignee of
such Partnership Units as a Substituted Additional Limited Partners. Similarly,
any Additional Limited Partner who shall transfer all of his Partnership Units
pursuant to a redemption of all of his Partnership Units under Section 8.4 shall
cease to be an Additional Limited Partner.
C. Transfers pursuant to this Article 11 may only be made on
the first day of a fiscal quarter of the Partnership, unless the General Partner
otherwise agrees.
D. If any Partnership Unit is transferred or assigned in
compliance with the provisions of this Article 11, or redeemed or transferred
pursuant to Section 8.4 on any day other than the first day of a Partnership
Year, then Net Income, Net Losses, each item thereof and all other items
attributable to such Partnership Unit for such Partnership Year shall be
allocated to the transferor Partner or the Redeeming Partner, as the case may
be, and, in the case of a transfer or assignment other than a redemption, to the
transferee Partner, by taking into account their varying interests during the
Partnership Year in accordance with Section 706(d) of the Code, using the
interim closing of the books method. Solely for purposes of making such
allocations, each of such items for the calendar month in which a transfer or
assignment occurs shall be allocated to the transferee Partner, and none of such
items for the calendar month in which a transfer or a redemption occurs shall be
allocated to the transferor Partner or the Redeeming Partner, as the case may
be. All distributions of Operating Cash Flow attributable to such Partnership
Unit with respect to which the Partnership Record Date is before the date of
such transfer, assignment or redemption shall be made to the transferor Partner
or the Redeeming Partner, as the case may be, and, in the case of a transfer or
assignment other than a redemption, all distributions of Operating Cash Flow
thereafter attributable to such Partnership Unit shall be made to the transferee
Partner.
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ARTICLE 12
ADMISSION OF PARTNERS
Section 12.1 Admission of Subsequent Partner
No person shall be admitted as a Partner except in accordance
with the terms of this Agreement and upon obtaining the consent of the General
Partner. Any prospective Partner must submit to the General Partner (i) evidence
of acceptance in form satisfactory to the General Partner of all of the terms
and conditions of this Agreement, and (ii) such other documents or instruments,
including powers of attorney, as may be required in the discretion of the
General Partner in order to effect such Person's admission as a Partner.
A. The admission of any Person as a Subsequent Partner shall
become effective on the date upon which the name of such Person is recorded in
the books and records of the Partnership, following the consent of the General
Partner to such admission.
B. If any Subsequent Partner is admitted to the Partnership on
any day other than the first day of a Partnership Year, then Net Income, Net
Losses, each item thereof and all other items allocable among Partners and
Assignees for such Partnership Year shall be allocated among such Subsequent
Partner and all other Partners and Assignees by taking into account their
varying interests during the Partnership Year in accordance with Section 706(d)
of the Code, using the interim closing of the books method. Solely for purposes
of making such allocations, each of such items for the calendar month in which
an admission of any Subsequent Partner occurs shall be allocated among all the
Partners and Assignees including such Additional Limited Partner. All
distributions of Operating Cash Flow with respect to which the Partnership
Record Date is before the date of such admission shall be made solely to
Partners and Assignees other than the Subsequent Partner, and all distributions
of Operating Cash Flow thereafter shall be made to all the Partners and
Assignees including such Subsequent Partner.
Section 12.2 Amendment of Agreement and Certificate of
Limited Partnership
For the admission to the Partnership of any Partner, the
General Partner shall take all steps necessary and appropriate under the Act to
amend the records of the Partnership and, if necessary, to prepare as soon as
practicable an amendment of this Agreement (including an amendment of Exhibit A)
and, if
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required by law, shall prepare and file an amendment to the Certificate.
ARTICLE 13
DISSOLUTION, LIQUIDATION AND TERMINATION
Section 13.1 Dissolution
The Partnership shall not be dissolved by the admission of
Substituted Additional Limited Partners or Subsequent Partners or by the
admission of a successor General Partner in accordance with the terms of this
Agreement. Upon the withdrawal of the General Partner, any successor General
Partner shall continue the business of the Partnership. The Partnership shall
dissolve, and its affairs shall be wound up, upon the first to occur of any of
the following ("Liquidating Events"):
A. the expiration of its term as provided in Section 2.5
hereof;
B. an event of withdrawal of the General Partner, as defined
in the Act, unless (i) at the time of such event there is at least one remaining
general partner of the Partnership who carries on the business of the
Partnership (and each remaining general partner of the Partnership is hereby
authorized to carry on the business of the Partnership in such an event) or (ii)
within ninety (90) days after such event, all Partners agree in writing to
continue the business of the Partnership and to the appointment, effective as of
the date of such event, of LXP as the general partner of the Partnership (and
LXP agrees to become a general partner of the Partnership);
C. entry of a decree of judicial dissolution of the
Partnership pursuant to the provision of the Act; or
D. the sale of all or substantially all of the assets
and properties of the Partnership.
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Section 13.2 Winding Up
A. Upon the occurrence of a Liquidating Event, the Partnership
shall continue solely for the purposes of winding up its affairs in an orderly
manner, liquidating its assets, and satisfying the claims of its creditors and
Partners. No Partner shall take any action that is inconsistent with, or not
necessary to or appropriate for, the winding up of the Partnership's business
and affairs. The General Partner or, in the event there is no remaining General
Partner, any Person elected by a majority in interest of the Limited Partners
(the General Partner or such other Person being referred to herein as the
"Liquidator") shall be responsible for overseeing the winding up and dissolution
of the Partnership and shall take full account of the Partnership's liabilities
and property and the Partnership property shall be liquidated as promptly as is
consistent with obtaining the fair value thereof, and the proceeds therefrom
shall be applied and distributed in the following order:
(1) First, to the satisfaction of all of the
Partnership's debts and liabilities, including all contingent, conditional or
immature claims and obligations to creditors other than the Partners (whether
by payment or the making of reasonable provision for payment thereof);
(2) Second, to the payment and discharge of all
of the Partnership's debts and liabilities to the General Partner;
(3) Third, to the payment and discharge of all
of the Partnership's debts and liabilities to the other Partners;
(4) The balance if any, to the Partners in
accordance with the positive Capital Account balances of the Partners, after
giving effect to all contributions, distributions, and allocations for all
periods.
The General Partner shall not receive any additional compensation for any
services performed pursuant to this Article 13.
B. Notwithstanding the provisions of Section 13.2.A hereof
which require liquidation of the assets of the Partnership, but subject to the
order of priorities set forth therein, if prior to or upon dissolution of the
Partnership the Liquidator determines that an immediate sale of part or all of
the Partnership's assets would be impractical or would cause undue loss to the
Partners, the Liquidator may, in its sole and
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absolute discretion (subject to its obligation to gradually settle and close
the Partnership's business under Section 17-803 of the Act), defer for a
reasonable time the liquidation of any assets except those necessary to satisfy
liabilities of the Partnership (including to those Partners as creditors).
Section 13.3 Negative Capital Accounts
A. Except as provided in this Section 13.3, no Partner,
general or limited, shall be liable to the Partnership or to any other Partner
for any negative balance outstanding in each such Partner's Capital Account,
whether such negative Capital Account results from the allocation of Net Losses,
or other items of deduction and loss to such Partner or from distributions to
such Partner.
B. Subject to Section 13.3.C, if any Special Limited Partner
on the date of the "liquidation" of his respective interest in the Partnership
(within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g)), including a
redemption under Section 8.4, would, following a hypothetical sale of
Partnership assets and the liquidation of the Partnership, have a negative
balance in his Capital Account, then such Special Limited Partner shall
contribute in cash to the capital of the Partnership the amount required to
increase his Capital Account as of such date to zero. Any such contribution
required of such Special Limited Partner hereunder shall be made on or before
the later of (i) the end of the Partnership Year in which the interest of such
Special Limited Partner is liquidated or (ii) the ninetieth (90th) day following
the date of such liquidation.
C. After the death of a Special Limited Partner, the executor
of the estate of such Special Limited Partner may elect to reduce (or eliminate)
the deficit Capital Account restoration obligation of such Special Limited
Partner. Pursuant to Section 13.3.B. such election may be made by such executor
by delivering to the General Partner within two hundred seventy (270) days of
the death of such Special Limited Partner a written notice setting forth the
maximum deficit balance in his Capital Account that such executor agrees to
restore under Section 13.3.B, if any. If such executor does not make a timely
election pursuant to this Section 13.3.C (whether or not the balance in his
Capital Account is negative at such time), then a Special Limited Partner's
estate (and the beneficiaries thereof who receive distribution of Partnership
Units therefrom) shall be deemed to have a deficit Capital Account restoration
obligation as set forth pursuant to the terms of Section 13.3.B.
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Section 13.4 Deemed Distribution and Recontribution
Notwithstanding any other provision of this Article 13, in the
event the Partnership is liquidated within the meaning of Regulations Section
1.704-1(b)(2)(ii)(g) but no Liquidating Event has occurred, the Partnership's
property shall not be liquidated, the Partnership's liabilities shall not be
paid or discharged, and the Partnership's affairs shall not be wound up.
Instead, for federal income tax purposes and for purposes of maintaining Capital
Accounts pursuant to Exhibit B hereto, the Partnership shall be deemed to have
distributed the property in kind to the Partners, who shall be deemed to have
assumed and taken such property subject to all Partnership liabilities, all in
accordance with their respective Capital Accounts. Immediately thereafter, the
General Partner and Limited Partners shall be deemed to have re-contributed the
Partnership property in kind to the Partnership, which shall be deemed to have
assumed and taken such property subject to all such liabilities.
Section 13.5 Rights of the Limited Partners
Except as otherwise provided in this Agreement, the Limited
Partners shall look solely to the assets of the Partnership for the return of
its Capital Contribution and shall have no right or power to demand or receive
property other than cash from the Partnership.
Section 13.6 Waiver of Partition
Each Partner hereby waives any right to partition of the
Partnership property.
ARTICLE 14
AMENDMENT OF PARTNERSHIP AGREEMENT
Section 14.1 Amendments
A. This Agreement may be amended with the consent of the
General Partner, the Initial Limited Partner, and the Special Limited Partners
representing a majority of Partnership Units held by such Special Limited
Partners, but such amendments shall not require the approval of any Additional
Limited Partners other than the Special Limited Partners.
B. Notwithstanding Section 14.1.A, the General Partner shall
have the power, without the consent of any other
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Partner to amend this Agreement as may be required to facilitate or implement
any of the following purposes:
(1) to add to the obligations of the General Partner
or surrender any right or power granted to the General Partner or any Affiliate
of the General Partner for the benefit of the Limited Partners;
(2) to reflect the admission, substitution,
termination, or withdrawal of Partners in accordance with this Agreement;
(3) to set forth the designation, rights, powers,
duties, and preferences of the holders of any additional Partnership Interests
issued pursuant to Section 4.2.A hereof;
(4) to reflect a change that is of an inconsequential
nature and does not adversely affect the Limited Partners in any material
respect, or to cure any ambiguity, correct or supplement any provision in this
Agreement not inconsistent with law or with other provisions, or make other
changes with respect to matters arising under this Agreement that will not be
inconsistent with law or with the provisions of this Agreement; and
(5) to satisfy any requirements, conditions, or
guidelines contained in any order, directive, opinion, ruling, or regulation of
a federal or state agency or contained in federal or state law.
The General Partner shall provide notice to the other Partners when any action
under this Section 14.1.B is taken.
C. Notwithstanding Sections 14.1.A and 14.1.B hereof, this
Agreement shall not be amended without the consent of each Partner adversely
affected if such amendment would (i) convert a Limited Partner's interest in the
Partnership into a general partner interest, (ii) modify the limited liability
of a Limited Partner in a manner adverse to such Partner, (iii) alter or modify
the Redemption Right and REIT Shares Amount as set forth in Section 8.4 in a
manner adverse to such Partner, or (iv) amend this Section 14.1.C. Further, no
amendment may alter the restrictions on the General Partner's authority set
forth in Section 7.3 without the consent specified in that section.
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ARTICLE 15
GENERAL PROVISIONS
Section 15.1 Addresses and Notice
Any notice, demand, request or report required or permitted to
be given or made to a Partner or Assignee under this Agreement shall be in
writing and shall be deemed given or made when delivered in person or when sent
by first class United States mail or by other means of written communication to
the Partner or Assignee at the address set forth in Exhibit A or such other
address of which the Partner shall notify the General Partner in writing.
Section 15.2 Titles and Captions
All article or section titles or captions in this Agreement
are for convenience only. They shall not be deemed part of this Agreement and in
no way define, limit, extend or describe the scope or intent of any provisions
hereof. Except as specifically provided otherwise, references to "Articles" and
"Sections" are to Articles and Sections of this Agreement.
Section 15.3 Pronouns and Plurals
Whenever the context may require, any pronoun used in this
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular form of nouns, pronouns and verbs shall include the plural and
vice versa. Each reference herein to Partnership Units held by the General
Partner, a Special Limited Partner, a Property Limited Partner or a Red Butte
Limited Partner shall be deemed to be a reference to Partnership Units held by
such Partner in its role as such.
Section 15.4 Further Action
The parties shall execute and deliver all documents, provide
all information and take or refrain from taking action as may be necessary or
appropriate to achieve the purposes of this Agreement.
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Section 15.5 Binding Effect
This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their heirs, executors, administrators, successors,
legal representatives and permitted assigns.
Section 15.6 Waiver
No failure by any party to insist upon the strict performance
of any covenant, duty, agreement or condition of this Agreement or to exercise
any right or remedy consequent upon a breach thereof shall constitute waiver or
any such breach or any other covenant, duty, agreement or condition.
Section 15.7 Counterparts
This Agreement may be executed in counterparts, all of which
together shall constitute one agreement binding on all the parties hereto,
notwithstanding that all such parties are not signatories to the original or the
same counterpart. Each party shall become bound by this Agreement immediately
upon affirming its signature hereto.
Section 15.8 Applicable Law
This Agreement shall be construed and enforced in accordance
with and governed by the laws of the State of Delaware, without regard to the
principles of conflicts of law.
Section 15.9 Invalidity of Provisions
If any provision of this Agreement is or becomes invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not be
affected thereby.
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Section 15.10 Entire Agreement
This Agreement contains the entire understanding and agreement
among the Partners with respect to the subject matter hereof and supersedes the
Prior Agreements and any other prior written or oral understandings or
agreements among them with respect thereto.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement under seal as of the date first written above.
GENERAL PARTNER:
Lex GP-1, Inc.
By____________________________
Name:
Title:
LIMITED PARTNER:
Lex LP-1, Inc.
By____________________________
Name:
Title:
LEXINGTON CORPORATE
PROPERTIES, INC.
By____________________________
Name:
Title:
PROPERTY LIMITED PARTNERS
By____________________________
On behalf of the Property
Limited Partners set forth
on Exhibit A
RED BUTTE LIMITED PARTNERS
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By____________________________
On behalf of the Red Butte
Limited Partners set forth
on Exhibit A
EXPANSION LIMITED PARTNERS
By____________________________
On behalf of the Expansion
Limited Partners set forth
on Exhibit A
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EXHIBIT A
PARTNERS' CONTRIBUTIONS AND PARTNERSHIP INTERESTS
Capital Partnership Percentage Redemption
Name and Address of Partner Contribution Units Interest Exercise Date
GENERAL PARTNER
---------------
Lex GP-1, Inc. $100 60,652 .5701% N/A
LIMITED PARTNER
---------------
Lex LP-1, Inc. $100 6,124,261 57.562% N/A
SPECIAL LIMITED PARTNERS
------------------------
Xxxxxxx X. Xxxxxxx ___ 6,556 .0616% N/A
The LCP Group, L.P. ___ 28,057 .2637% N/A
Xxxxxx X. Xxxx ___ 4,065.5 .0382% N/A
Xxxxx X. Xxxx ___ 4,065.5 .0382% N/A
Xxxxxxx X. Xxxxxxxx Trust dtd. ___ 2,608 .0245% N/A
4/5/90
E. Xxxxxx Xxxxxxx ___ 41,813 .3930% N/A
Xxxxxxx X. Xxxxx ___ 16,063 .1510% N/A
Xxxxxx X. Xxxxxxx ___ 9,001 .0846% N/A
A-1
58
PARTNERS' CONTRIBUTIONS AND PARTNERSHIP INTERESTS
Capital Partnership Percentage Redemption
Name and Address of Partner Contribution Units Interest Exercise Date
PROPERTY LIMITED PARTNERS
1) Barngiant Xxxxxxxxxx(1) March 1, 2004
Xxxxxx X. Xxxxx 1 7,804 .0733%
Xxxxxx X. Xxxxxxx .5 3,902 .0367%
Xxxx Xxxxxx .25 1,951 .0183%
Xxxxx Xxxxxx .25 1,951 .0183%
Estate of Xxxxx X. Xxxxxxxxx 1 7,804 .0733%
Xxxxxxxxx Brothers Oil Co. 2.5 19,510 .1834%
The Marital Trust 1 7,804 .0733%
U/W Xxxxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxx 1 7,804 .0733%
Xxxxxx X. Xxxx .001 406 .0038%
Xxxxx X. Xxxx .001 406 .0038%
Xxxxx Xxxxxxxxx 1.5 11,706 .1100%
Xxxx Xxxxxxxxx TTEE .5 3,902 .0367%
Xxx Xxxxxxxx .5 3,902 .0367%
Xxxxxx Properties, Inc. .2 797 .0075%
(economic interest only)
2) Barnhale Modesto February 1, 2006
Xxxxx Xxxxxx 1,655 .0156%
Xxxxxxx Xxxxx 115.5 4,967 .0467%
Xxxxxxx Xxxxx 77 3,311 .0311%
Xxxxxxx Xxxxxxxx 3,311 .0311%
Xxxxxxx X. Xxxxxx 77 3,311 .0311%
Xxxxxx X. Xxxx Trust 1,655 .0156%
(1) For purposes of Section 5.1, Property Limited Partners that contributed
interests in Barngiant Xxxxxxxxxx (except for Xxxxxxxxx Brothers Oil Co.
and The Marital Trust U/W Xxxxxxx X. Xxxxxxxxx) shall be entitled to cash
distributions of $2,100 annually in 1996 through 2003, and $350 in 2004.
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PARTNERS' CONTRIBUTIONS AND PARTNERSHIP INTERESTS
Capital Partnership Percentage Redemption
Name and Address of Partner Contribution Units Interest Exercise Date
Xxxxxx X. Xxxxxxx, Trustee 38.5 1,656 .0156%
Xxxxxx X. Xxxxxxx Revocable
Trust dtd 3/24/92
Estate of Xxxxxx X. Xxxxxxxxxx 1,655 .0156%
Xxxx Xxxxxx 77 3,311 .0311%
Xxxxxx Rips 19.25 1,656 .0156%
Xxxxxxx X. Rips 19.25 1,655 .0156%
Xxxxxx X. Xxxxxx 1,655 .0156%
Xxxxx X. Xxxxxxx Xxxxxx Trust 1,655 .0156%
Xxxxxxx X. Xxxxxxxx 19.25 1,656 .0156%
E. Xxxxxx Xxxxxxx 20.2 872 .0082%
(economic interest only)
Xxxxxx Properties, Inc. 20.2 871 .0082%
(economic interest only)
March 1, 2005
3) Xxxxxx Rockshire
Xxxxxx X. Xxxx 1 3,672 .0345%
Xxxxxx Xxxxxxxx 1 3,672 .0345%
Xxxxxxx X. Xxxxx, Xx. 1 3,672 .0345%
Xxxxxxx X. Xxxxxxx 1.5 5,508 .0518%
Xxxxxxx Xxxxx 1 3,672 .0345%
The Residuary Trust .5 1,836 .0173%
U/W Xxxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxx .001 4 .00004%
Xxxxx X. Xxxx .001 4 .00004%
Xxxxxx Xxxxxxxxx 1 3,672 .0345%
Xxxx Xxxxxxxxx TTEE 1 3,672 .0345%
R. Xxxxx Xxxxxxxx 1 3,672 .0345%
Xxxxxx Xxxx 1 3,672 .0345%
Xxxxxx Properties, Inc. .5 1,933 .0182%
(economic interest only)
4) Barnvyn Bakersfield January 1, 2003
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PARTNERS' CONTRIBUTIONS AND PARTNERSHIP INTERESTS
Capital Partnership Percentage Redemption
Name and Address of Partner Contribution Units Interest Exercise Date
Xxxx X. Xxxxxxxx 6,257 .0588%
Xxxxxx Xxxxxx 1.47 5,485 .0516%
Xxxxxxx X. Xxxxxxx .26 978 .0092%
Xxxxxx Properties, Inc. .26 978 .0092%
(economic interest only)
5) Barnhech Xxxxxxxxxx(2) May 1, 2006
Xxxxx X. Xxxx 1 1,703 .0160%
Crestar Bank, Co-Ttee 1 1,703 .0160%
u/a dtd 1/31/86
with Xxxxx X. Linen IV
Xxxxxxx X. Xxxxx 1 1,703 .0160%
Xxxxxx Living Trust, dtd 10/7/97 .5 852 .0080%
Xxxxxxx X. Xxxxxx III & Xxxxxxx Xxxxxx
Xxxxxxx X. Xxxxxxx, Xx. .5 852 .0080%
Xxxx Xxxxx 1 1,703 .0160%
Xxxxx X. Xxxxxx 1 1,703 .0160%
Xxxx X. Xxxxxx .5 852 .0080%
Xxxxxx Properties, Inc. .4 695 .0065%
(economic interest only)
(2) For purposes of Section 5.1, Property Limited Partners that contributed
interests in Barnhech Xxxxxxxxxx shall be entitled to cash
distributions of $490 annually in 1996 through 2005, and $163 in 2006.
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PARTNERS' CONTRIBUTIONS AND PARTNERSHIP INTERESTS
Capital Partnership Percentage Redemption
Name and Address of Partner Contribution Units Interest Exercise Date
6) Barnward Brownsville November 2, 2004
Xxxxx Xxxxx Xxxx 1 5,424 .0510%
Xxxxxx Xxxx 1 5,424 .0510%
Xxxxxx Xxxxxxxxxxx 1 5,424 .0510%
Xxxxx Xxxxxxx 1 5,424 .0510%
Xxxxxx Xxxxxxx 1 5,424 .0510%
Xxxxxx X. Xxxxxx 1 5,424 .0510%
E. Xxxxxx Xxxxxxx .26 1,428 .0134%
(economic interest only)
Xxxxxx Properties, Inc. .26 1,428 .0134%
(economic interest only)
RED BUTTE LIMITED PARTNERS May 22, 1998
Xxxxxx Properties, Inc. 172 .0016%
Partners of Barnshore Associates
- E. Xxxxxx Xxxxxxx 4,245 .0399%
- Xxxxx X. Xxxx 2,122 .0199%
- Xxxxxx X. Xxxx 2,123 .0200%
- Xxxxxxx X. Xxxxx 2,123 .0200%
- Xxxxxx X. Xxxxxxx 2,123 .0200%
- Xxxxxx Xxxxxxxx 2,123 .0200%
- Xxxxx Xxxxxxxx 1,061 .0100%
- Xxxxxxx X. Xxxxxxxx
Trust dtd. 4/5/90 1,061 .0100%
Xxxxxx, Xxxx X. 16,921 .1590%
Xxxxxx, X.X. 1,811 .0170%
Xxxx, Xxxxxxxx 33,842 .3181%
Xxxxxx, Xxxxxx X. 16,921 .1590%
Xxxxxx Xxxxxxx, Trustee, Xxxxxx
Xxxxxxx Marital Trust 33,842 .3181%
Xxxxxxx, Windsor & Xxxx 16,921 .1590%
Xxxxxxxxxxx, Xxxxx X. 16,921 .1590%
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PARTNERS' CONTRIBUTIONS AND PARTNERSHIP INTERESTS
Capital Partnership Percentage Redemption
Name and Address of Partner Contribution Units Interest Exercise Date
Dallas, Xxxxxx X. (Sr.) 16,921 .1590%
Xxxxxx, Xxxxxx 33,842 .3181%
Diversi, Xxxxx X. (Jr.) 10,861 .1021%
Xxxxx, X. Xxxxxxx 16,921 .1590%
Dye Investment Properties #1 33,842 .3181%
Xxxxxxxxxx, Xxxxx 33,842 .3181%
Falconer Family Limited 33,842 .3181%
Partnership
Xxxxx, Xxxxxx X. 16,921 .1590%
The Bud and Xxxx Xxx Xxxxxxxxx 16,921 .1590%
Partnership
The Xxxxxxx X. and Xxxx 16,921 .1590%
Xxxxxxxxx Family Partnership
Xxxxxxx, Xxxxx X. 5,431 .0510%
Xxxxx, Xxxxxxxx X. 37,236 .3500%
Xxxxxxxxxx, Xxxxxx X. 20,315 .1909%
Xxxxxx, Xxxxxx X. 3,734 .0351%
Xxxxx, Tinesley H. 10,862 .1021%
Xxxxxx, Xxxxxxxx 33,842 .3181%
Xxxxxxx, Xxxxxx X. 16,921 .1590%
Xxxxx, Xxxxx Xxx 5,431 .0510%
Xxxxx, X. Xxxxxx 2,716 .0255%
Xxxxxx, Xxxxxxx X. 2,716 .0255%
Xxxxxx Trust 38,594 .3627%
Xxxxxxx, X.X. 1,810 .0170%
Xxxxxxx, Xxxxx X. (Jr.) 33,842 .3181%
Xxxxxxx, Xxxxx X. (Sr.) 33,842 .3181%
Xxxxxxx, Xxxxxx X. 33,842 .3181%
Krone, Xxxxxx X. 8,147 .0766%
Xxxxx, Xxxxxx X. 5,431 .0510%
Xxxxxxx, Xxxxxx & Virginia 33,842 .3181%
A-6
63
PARTNERS' CONTRIBUTIONS AND PARTNERSHIP INTERESTS
Capital Partnership Percentage Redemption
Name and Address of Partner Contribution Units Interest Exercise Date
Maronick, E. Phil 33,842 .3181%
Xxxxxx, Eff W. 3,734 .0351%
Xxxxxxx, Xxxxx X. 16,921 .1590%
Mazo, (Xxxxxx)/Trust 5,431 .0510%
McGonacle, Xxxxx & Xxx 16,921 .1590%
Xxxxxx, Xxxxxxx X. 16,921 .1590%
Neiman, H.F. 1,810 .0170%
Xxxxxxxxx, Xxxxx (Jr.) 20,315 .1909%
Xxxx, Xxxxxx X. 16,921 .1590%
Post, Xxxxx X. (Jr.) 10,862 .1021%
Price, Xxxxxx X. 16,921 .1590%
Xxxxx, Estate of Guy C. 37,236 .3500%
Romney, Xxxxxx Xxxx & Xxxxx 20,315 .1909%
TTEES
Xxxxxxxx, Xxxxxx X. 5,431 .0510%
Xxxxxxxx, Xxxxxx X. 33,842 .3181%
Xxxxxxxx, Xxxxxxx X. 33,842 .3181%
Xxxxxx, Xxxxx X. 5,431 .0510%
Xxxxxxxxxx, Xxxxx 33,842 .3181%
Xxxxxxx, Xxxx X. 16,921 .1590%
Strimatter, Xxxx X. & Xxxxx X. 16,921 .1590%
Xxxx, Geils 33,842 .3181%
Xxxxxx, Xxxxx X. 33,842 .3181%
Xxxxxxxx, Xxxxxx X. (Jr.) 5,431 .0510%
Xxxx X. Xxxxxxxx Trustee, Red 2,716 .0255%
Butte Creek Trust
Xxxxx, Xxxxxxx 5,431 .0510%
The LCP Group, L.P. 104,704 .9841%
Xxxxxxx X. Xxxxx 9,302 .0874%
EXPANSION LIMITED PARTNERS
1) Toy Properties Associates II January 15, 1999
A-7
64
PARTNERS' CONTRIBUTIONS AND PARTNERSHIP INTERESTS
Capital Partnership Percentage Redemption
Name and Address of Partner Contribution Units Interest Exercise Date
Xxxxxxx X. Xxxxxx 854 .0080%
Xxx X. Xxxxxx 854 .0080%
Xxxxxx X. Xxxxxxx 1,707 .0160%
Xxxxxxxx X. Xxxxxx 1,707 .0160%
Xxxxxx X. Xxxxxx 1,707 .0160%
Xx. Xxxx X. Xxxxxx 1,707 .0160%
X.X. Xxxxxxx 3,414 .0321%
Xxxxxx Xxxxx 1,707 .0160%
Xxxxxxxx X. Xxxxxxx 1,707 .0160%
Xxxxx X. Xxxxxx 1,707 .0160%
Xxxxxx X. Xxxx 1,707 .0160%
Xxxxx X. Xxxxxxxx 1,707 .0160%
Xxxxxxxx X. Xxxxxxxx 1,707 .0160%
Xxxxxx Xx Xxx 854 .0080%
Xxxxx X. Xxx 000 .0000%
Xxxxx X. Xxxxxxxx 1,707 .0160%
Dr. Xxxxx Xxxx 1,707 .0160%
Xxxx X. Xxxxxxx, Xx. 1,707 .0160%
Xxxx X. Xxxxxxx 1,707 .0160%
Xxxxxx X. Xxxxxx 1,707 .0160%
WAT Enterprises Limited 1,707 .0160%
Partnership
Xxxx Xxx Xxxxxx 1,707 .0160%
Xxxxx Xxxx Xxxxxxx 1,707 .0160%
Xxxxxxx X. Xxxxxxx 1,707 .0160%
O.K.O.W. Investors 22,619 .2126%
(Special LP)
The LCP Group, L.P. 18,065 .1698%
Xxxxxxx X. Xxxxx 4,696 .0441%
E. Xxxxxx Xxxxxxx 327 .0031%
Xxxxxx X. Xxxx 163 .0015%
A-8
65
PARTNERS' CONTRIBUTIONS AND PARTNERSHIP INTERESTS
Capital Partnership Percentage Redemption
Name and Address of Partner Contribution Units Interest Exercise Date
Xxxxx X. Xxxx 163 .0015%
Xxxxxx X. Xxxxxxx 196 .0018%
Xxxxxxx X. Xxxxxxxx Trust dtd. 131 .0012%
4/5/90
Xxxxx Xxxxxxxx 131 .0012%
2) Toy Properties Associates V January 15, 1999
Xxxxxxx X. Xxxxxxxxx, DDS 778 .0073%
Xxxxxx X. and Xxxxx X. Xxxxx 778 .0073%
9401 Ashley L.P. 778 .0073%
Xxxx X. Xxxxxxxxxxx, Xx., MD 778 .0073%
Xxxxxxx X. Xxxxx, DDS 778 .0073%
Xxxxx X. Bridge, Jr. 778 .0073%
Xxxx Xxxxxxx Xxxx, MD 778 .0073%
Xxx X. Xxxxxx 778 .0073%
Xxxxxx X. and Xxxxx X. Xxxxx 778 .0073%
Xxxxxx X. Xxxxx 778 .0073%
Xxxxxx X. Xxxxxx 778 .0073%
Xxxxxxxxx Xxxxxxxxx 778 .0073%
Xxxxxx X. Xxxxxxx 778 .0073%
Xxxxxxx X. Xxxxxx 778 .0073%
Xxxxx X. Xxxxxx 778 .0073%
W. Xxxx Xxxxxx 778 .0073%
Miles X. Xxxxxx 778 .0073%
Xxxxx X. Xxxxx 778 .0073%
Xxxxxxx X. X'Xxxxx, DDS 778 .0073%
Xxxx X. Xxxxx 778 .0073%
Xxxxxx X. Xxxxxxxxxxxx 778 .0073%
Xxxxxx and Xxxxxxxx Xxxxxxxxx 778 .0073%
Xxxxxx X. and Xxxxxx X. Xxxx 778 .0073%
Xxxx X. and Xxxxxx Xxx 778 .0073%
A-9
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PARTNERS' CONTRIBUTIONS AND PARTNERSHIP INTERESTS
Capital Partnership Percentage Redemption
Name and Address of Partner Contribution Units Interest Exercise Date
The LCP Group, L.P. 9,601 .0902%
Xxxxxxx X. Xxxxx 1,958 .0184%
E. Xxxxxx Xxxxxxx 238 .0022%
Xxxxxx X. Xxxx 119 .0011%
Xxxxx X. Xxxx 119 .0011%
Xxxxxx X. Xxxxxxx 146 .0014%
Xxxxxxx X. Xxxxxxxx Trust dtd. 97 .0009%
4/5/90
Xxxxx Xxxxxxxx 97 .0009%
Xxxxxxxx Xxxxxxxxxxx 51 .0005%
0) Xxxx Xxxxxx Partners January 15, 2006
Xxxxxxx Xxxxxxx Xxxxx 2,262 .0213%
Xxxxxx X. Xxxxxx 6,855 .0644%
Xxxx X. Xxxxxx 6,855 .0644%
Xxxxxxxx X. Xxxxxx 6,855 .0644%
Xxxxxx Xxxxxxx Xxxxx 2,331 .0219%
Uwarda Day 6,855 .0644%
Xxxxxx Xx Xxxxx, MD 6,855 .0644%
Xxxx Xxxxx 3,428 .0322%
The Estate of Xxxx Xxxx 6,855 .0644%
Xxxxxxxx Xxxx, Executor
Xxxxxx Xxxx 6,855 .0644%
Xxxxx Xxxxx 27,420 .2577%
Xxxxxx Xxxxxxx Xxxxxxx 2,262 .0213%
Xxxx Xxxxxxxx 6,855 .0644%
Xxxxx X. Xxxxxx 6,855 .0644%
Xxxxx Xxxxx 6,855 .0644%
Xxxxxxxx X. Koenkow 6,855 .0644%
Xxxxxxx and Xxxxxxxx X. Xxxxxxxxxx 13,710 .1289%
Xxxxx X. Xxxxx 6,855 .0644%
A-10
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PARTNERS' CONTRIBUTIONS AND PARTNERSHIP INTERESTS
Capital Partnership Percentage Redemption
Name and Address of Partner Contribution Units Interest Exercise Date
Xxxxxxx X. Xxxxx 3,427 .0322%
Xxxx Xxxxxx 6,855 .0644%
Xxxxxxx X. Xxxxxxxx 6,855 .0644%
Xxxxx Xxxxxxxx 6,855 .0644%
Xxxx X. Xxxxxxx 13,710 .1289%
R. Xxxxxxx Xxxxxxx 13,710 .1289%
W. Xxxxxx Xxxx 6,855 .0644%
C. Xxxxxx Xxxxx 6,855 .0644%
Xxxxxx X. Xxxxx 6,855 .0644%
Xxxxxxx X. Xxxxxxx 1,662 .0156%
E. Xxxxxx Xxxxxxx 208 .0020%
Xxxxxxx X. Xxxxx 4,023 .0378% January 15, 1999
The LCP Group, L.P. 13,444 .1264% January 15, 1999
A-11
68
EXECUTION COPY
As a result of the merger of the Partnership with Pacific Place
Partners Ltd. ("Pacific Place") on March 10, 1997, the General Partner has
authorized the issuance of Partnership Units to all former partners of Pacific
Place (the "Pacific Place Limited Partners") in the amounts specified on Exhibit
A-1 attached hereto and made a part hereof. For purposes of applying the terms
and conditions of the Partnership Agreement, the Pacific Place Limited Partners
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, each Pacific
Place Limited Partners shall be entitled to receive distributions with respect
to each Partnership Unit equal to the cash dividend payable with respect to each
share of LXP common stock, determined at the time of each quarterly
distribution.
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 Pacific
Place Limited Partners. Taxable income shall be specially allocated to the
Pacific Place Limited Partners in an amount equal to, but not in excess of, the
cash distributed to the Pacific Place Limited Partners; provided, however, that
the Pacific Place Limited Partners shall be allocated taxable income (i) as
otherwise required in Exhibit B and C of the Partnership Agreement, and (ii)
resulting from the transaction in which the Replacement Property (as defined
below) was acquired. For purposes of Section 6.1C of the Partnership Agreement,
Nonrecourse Liabilities of the Partnership shall be allocated to account for any
income or gain to be allocated to the Pacific Place Limited Partners pursuant to
Sections 2.B and 2.D of Exhibit C, in the same priority as Nonrecourse
Liabilities are allocated to the Property Limited Partners, the Red Butte
Limited Partners, the Expansion Limited Partners and any subsequent Additional
Limited Partners that are admitted to the Partnership. The Partnership covenants
to retain sufficient Nonrecourse Liabilities to permit the allocation of such
Nonrecourse Liabilities to the Pacific Place Limited Partners in an amount
sufficient to avoid recapture of tax liability with respect to the Pacific Place
Limited Partners' negative capital accounts.
A-12
69
For purposes of Section 8.4 of the Partnership Agreement, on April 15,
1999, and on each January 15, April 15, July 15 and October 15 thereafter (each
a "Notice Date"), each Pacific Place Limited Partner shall have the right (the
"Pacific Place Limited Partner Redemption Right") to require the Partnership to
redeem on a Specified Redemption Date the Partnership Units held by a Pacific
Place Limited Partner for the Redemption Amount to be delivered by the
Partnership; provided, however, that a Pacific Place Limited Partner 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 Pacific Place Limited Partner Redemption Right shall be exercised pursuant
to a Notice of Redemption (substantially in the form of Exhibits D-1 through D-4
modified to reflect the Pacific Place Limited Partner) delivered to the General
Partner and LXP on a Notice Date by the Pacific Place Limited Partner who is
exercising the redemption right (the "Pacific Place Redeeming Partner"). The
Pacific Place 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 any Pacific Place
Limited Partner may exercise the redemption rights of such Pacific Place Limited
Partner, and such Pacific Place Limited Partner 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 such Pacific Place Limited Partner, the Redemption Amount
shall be delivered by the Partnership directly to such Assignee and not to such
Pacific Place Limited Partner.
The Partnership Units held by the Pacific Place Limited Partners 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
those certain properties located at 0 Xxxxxxxx Xx., Xxx Xxxxxxxx, Pa., 00 X.
Xxxx Xx., Xxx Xxxxxxxx, Xx.,
A-13
70
and 245 Salem Church Rd., Mechanicsburg, Pa., (the "Replacement Property") prior
to March 1, 2002 without the prior consent of the holders of fifty one percent
(51%) of the Partnership Units held by Pacific Place Limited Partners, except in
the event of a foreclosure or in the event the Partnership determines that such
a disposition is necessary to ensure its continued qualification as a real
estate investment trust. In any event in which the Partnership determines to
dispose of the Replacement Property, the Partnership agrees to use its best
efforts to structure such a disposition as an exchange that meets the
requirements of Code Section 1031. Notwithstanding the foregoing, if the
Partnership does dispose of its interest prior to April 15, 1999, then the
General Partner shall provide prompt written notification to the Pacific Place
Limited Partners of such disposition and each such Pacific Place Limited Partner
may exercise its Pacific Place Limited Partner Redemption Right on the last
Business Day of the calendar year in which such disposition occurs or, if later,
ten (10) Business Days following the consummation of such transaction.
LXP agrees to enter into a Guaranty Agreement with the Partnership on
the date the Pacific Place Limited Partners 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. Each of the Pacific Place Redeeming Partner,
LXP, the Partnership and the General Partner shall treat the transaction between
LXP and the Pacific Place Redeeming Partner as a sale of the Pacific Place
Redeeming Partner's Partnership Units to LXP or the General Partner, as the case
may be, for federal income tax purposes. Each Pacific Place 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 Pacific Place
Limited Partner Redemption Right.
A-14
71
PARTNERS' CONTRIBUTIONS AND PARTNERSHIP INTERESTS
Capital Partnership Percentage Redemption Exercise
Name and Address of Partner Contribution Units Interest Date
PACIFIC PLACE LIMITED PARTNERS April 15, 1999
------------------------------
Xx. Xxxxxx X. Xxxxx 1,543 .0145%
Xx. Xxxxxxx X. Xxxxx 772 .0073%
Xx. Xxxxxx X. Xxxx 1,543 .0145%
Xxxxx X. Xxxxx, Trustee 771 .0072%
u/a dated 12/28/90
Xxxxxxx X. Xxxxx, Trust 772 .0073%
X.X. Xxxxxxxxxx & Son, Inc. c/o 6,216 .0584%
Ray Oak
Xxxxxxx X. Xxxxxxx 1,543 .0145%
C. Xxxxx Xxxxx 1,543 .0145%
Xxxxxxx X. Xxxxxxx 386 .0036%
Shoppers Village Associates 1,543 .0145%
c/o Xxxxxx X. Caller
Xxxxxx X. Caller 1,188 .0112%
Chappy Partners 72,000 .6767%
Xxxxx X. Xxxxxxxx 772 .0073%
Xxxxx X. Xxxxx 1,543 .0145%
Xxxxxx X. Xxxxx 1,543 .0145%
Xx. Xxxxxx X. Xxxx 3,085 .0289%
Xxxxxx X. Xxxxxxx 772 .0073%
Xxxxxxx X. Xxxxx 1,543 .0145%
Xxxxxxxxx X. Xxxxxxx 772 .0073%
Xx. Xxxxxx Xxxxxxxx 1,543 .0145%
Xxxxxx X. Xxxxxxxx 2,314 .0217%
Xxxxx Xxxxxxxxx and 1,157 .0109%
Xxxx Xxxxxxx
Xxxx Xxxxxxxxx 385 .0036%
Dr. & Xxx. Xxxxxxxx Xxxxx 1,543 .0145%
Xxxxxxx X. Xxxxxx Trust 1,543 .0145%
A-15
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PARTNERS' CONTRIBUTIONS AND PARTNERSHIP INTERESTS
Capital Partnership Percentage Redemption Exercise
Name and Address of Partner Contribution Units Interest Date
Xxx X. Xxxxxx 1,543 .0145%
Xxxxxx Xxxxxxx 000 .0000%
Xx. Xxxxxxx X. Xxxxxxxx 1,543 .0145%
Investment Capital Associates 1,619 .0152%
ICA Pacific Place, Inc. 3,373 .0317%
Xxxx X. Xxxxxx, III Ranch, Ltd. 1,543 .0145%
Xxx X. Xxxxxx Ranch, Ltd. 1,542 .0145%
Xxxxxx Caller Xxxxxx 1,188 .0112%
Xx. Xxxxxxx X. Xxxxx 771 .0072%
Xxxxx X. Xxxx 772 .0073%
Xxx Xxxxxxxxx and 385 .0036%
Xxxx Xxxxxxxxx
Xxxx X. Xxxxxxxxx 772 .0073%
Xxxxxxx X. Xxxxxxxxx 772 .0073%
King Xxxxxxxx 1,687 .0159%
Xxxxxxx X. Xxxxxxxx 89,300 .8393%
Xxxxxx X. Xxxxxx 1,543 .0145%
Xxxxxx X. Xxxxxxxxx 98,906 .9296%
Xxxxx X. Xxxxx 3,085 .0290%
Xxxxxx X. Xxxxx 772 .0073%
Xxxx XxXxxxxx 1,620 .0152%
Xxxxxxx X. XxXxxxxx 1,543 .0145%
Xxxxxx X. Xxxxx 1,543 .0145%
Xxxxxxx Xxxx 5,399 .0507%
Xx. Xxxxxxxxxxxxx X. Xxxx 1,543 .0145%
Xxxxxxx Xxxxxxxx Trust dtd 1,543 .0145%
8/26/88
Xxxxxxx X. Xxxxxxx 1,543 .0145%
A-16
73
PARTNERS' CONTRIBUTIONS AND PARTNERSHIP INTERESTS
Capital Partnership Percentage Redemption Exercise
Name and Address of Partner Contribution Units Interest Date
Pell Holdings 56,000 .5263%
Xxxxxx X. Xxxxxxxx 1,543 .0145%
Xxxx Xxxxx Xxxxxx 1,687 .0159%
Xx. Xxxxx X. Xxxxxx 1,543 .0145%
Xxxxxxxx Xxxxxx 1,296 .0122%
C & H Xxxxx Inc. 6,171 .0580%
Xxxxxx X. & Xxxx X. Xxxxxx 1,543 .0145%
RMS Associates 52,500 .4934%
Xxxxx X. Xxxxxxxxxx 1,543 .0145%
Xxxxxx Xxxxxxxxxx 1,188 .0112%
Xxxxxx X. Xxxxxxx 2,314 .0217%
Xxxxx Xxxxxxx & Xxxx Xxxxxxxxx 386 .0036%
Xx. Xxxxxx Xxxxxxxx 1,543 .0145%
Xx. Xxxxxxx X. Xxxxx 1,543 .0145%
Xxxxxxx Xxxxxx 386 .0036%
Xx. Xxxxxxx X. Xxxxx 1,543 .0145%
Xxxxxx Xxxxxxx 772 .0073%
Xxxxxxx X. Xxxxx 1,543 .0145%
Xx. Xxxxxxx Xxxxxxxxx 1,543 .0145%
Xx. Xxxxxx X. Xxxxxx 771 .0072%
Dr. & Xxx. Xx X. Xxxxxx 1,543 .0145%
Xxxxx X. Xxxxxxx 1,543 .0145%
Xxxxxx X. Xxxxxxx 771 .0072%
Dr. & Xxx. Xxxxxx Xxxxxxx 771 .0072%
Mr. & Xxx. Xxxx Xxxxxxx 1,543 .0145%
Xxxxxx X. Xxxxxxx 1,543 .0145%
A-17
74
EXECUTION COPY
As a result of the contribution of the interests in the Phoenix Hotel
Associates Limited Partnership ("Phoenix") on January 29, 1998, the General
Partner pursuant to Section 4.2.A and Sections 14.1.B(2) and 14.1.B(3) of this
Agreement has authorized the issuance of Partnership Units to those former
partners of Phoenix (the "Phoenix Limited Partners") electing to contribute all
or a portion of their interests to the Partnership. Each Phoenix Limited Partner
shall receive the number of Units specified below. For purposes of applying the
terms and conditions of the Partnership Agreement, the Phoenix Limited Partners
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, each Phoenix
Limited Partner shall be entitled to receive distributions with respect to each
Partnership Unit equal to the cash dividend payable with respect to each share
of LXP common stock, determined at the time of each quarterly distribution
beginning with the distribution payable to shareholders of record of LXP on
January 30, 1998.
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 Phoenix
Limited Partners. Pursuant to the General Partners' authority in Section
14.1.B(3), Partnership taxable income shall be specially allocated to the
Phoenix Limited Partners in an amount equal to, but not in excess of, all cash
distributions to the Phoenix Limited Partners; provided, however, that the
Phoenix Limited Partners shall be allocated taxable income (i) as otherwise
required in Exhibit B and C of the Partnership Agreement, and (ii) resulting
from the transaction in which the Replacement Property (as defined below) was
acquired. For purposes of Section 6.1C of the Partnership Agreement, Nonrecourse
Liabilities of the Partnership shall be allocated to account for any income or
gain to be allocated to the Phoenix Limited Partners pursuant to Sections 2.B
and 2.D of Exhibit C, in the same priority as Nonrecourse Liabilities are
A-18
75
EXECUTION COPY
allocated to the Property Limited Partners, the Red Butte Limited Partners, the
Expansion Limited Partners, the Phoenix Limited Partners, the Savannah Limited
Partners and any subsequent Additional Limited Partners that are admitted to the
Partnership. The Partnership covenants to retain sufficient Nonrecourse
Liabilities to permit the allocation of such Nonrecourse Liabilities to the
Phoenix Limited Partners in an amount sufficient to avoid recapture of tax
liability with respect to the Phoenix Limited Partners' negative capital
accounts.
For purposes of Section 8.4 of the Partnership Agreement, on January
15, 1999, and on each January 15, April 15, July 15 and October 15 thereafter
(each a "Notice Date"), each Phoenix Limited Partner shall have the right (the
"Phoenix Limited Partner Redemption Right") to require the Partnership to redeem
on a Specified Redemption Date the Partnership Units held by a Phoenix Limited
Partner for the Redemption Amount to be delivered by the Partnership; provided,
however, that a Phoenix Limited Partner 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 Phoenix Limited Partner
Redemption Right shall be exercised pursuant to a Notice of Redemption
(substantially in the form of Exhibits D-1 through D-4 modified to reflect the
Phoenix Limited Partner) delivered to the General Partner and LXP on a Notice
Date by the Phoenix Limited Partner who is exercising the redemption right (the
"Phoenix Redeeming Partner"). The Phoenix 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 any
Phoenix Limited Partner may exercise the redemption rights of such Phoenix
Limited Partner, and such Phoenix Limited Partner 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
A-19
76
EXECUTION COPY
on behalf of such Phoenix Limited Partner, the Redemption Amount shall
be delivered by the Partnership directly to such Assignee and not to such
Phoenix Limited Partner.
The Partnership Units held by the Phoenix Limited Partners shall be
subject to redemption by the Partnership if otherwise required by the terms of
the Partnership Agreement.
The Partnership hereby covenants not to permit Phoenix to dispose of
its interest in those certain properties acquired by Phoenix in connection with
its rights under that certain Exchange Agreement dated December 29, 1997 between
Phoenix and Security Trust Company (the property so acquired, the "Replacement
Property") prior to January 1, 2003 without the prior consent of the holders of
fifty-one percent (51%) of the Partnership Units held by Phoenix Limited
Partners, except in the event of a foreclosure or in the event the Partnership
determines that such a disposition is necessary to ensure its continued
qualification as a real estate investment trust. In any event in which the
Partnership determines to cause Phoenix to dispose of the Replacement Property,
the Partnership agrees to use its best efforts to cause Phoenix to structure
such a disposition as an exchange that meets the requirements of Code Section
1031. Notwithstanding the foregoing, if the Partnership does dispose of its
interest prior to January 15, 1999, then the General Partner shall provide
prompt written notification to the Phoenix Limited Partners of such disposition
and each such Phoenix Limited Partner may exercise its Phoenix Limited Partner
Redemption Right on the last Business Day of the calendar year in which such
disposition occurs or, if later, ten (10) Business Days following the
consummation of such transaction. In addition, if the Code Section 1031 exchange
described in the Exchange Agreement does not take place, or if such exchange
does not result in a deferral of all of the gain that would have been recognized
upon the sale by Phoenix of the Relinquished Property (as defined in the
Exchange Agreement), then the General Partner shall provide prompt written
notification to the Phoenix Limited Partners and shall cause LCIF to distribute
cash to the Phoenix Limited
A-20
77
EXECUTION COPY
Partners in redemption of the portion of their LCIF Units corresponding to the
portion of the value of the Relinquished Property which is treated as
transferred in a taxable transaction.
LXP agrees to enter into a Guaranty Agreement with the Partnership on
the date the Phoenix Limited Partners 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. Each of the Phoenix Redeeming Partner, LXP, the
Partnership and the General Partner shall treat the transaction between LXP and
the Phoenix Redeeming Partner as a sale of the Phoenix Redeeming Partner's
Partnership Units to LXP or the General Partner, as the case may be, for federal
income tax purposes. Each Phoenix 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 Phoenix Limited Partner Redemption
Right.
A-21
78
PARTNERS' CONTRIBUTIONS AND PARTNERSHIP INTERESTS
Name and Address of Capital Partnership Percentage Redemption
Partner Contribution Units Interest Date
------- ------------ ----- -------- ----
PHOENIX LIMITED (Class A Units January 15, 1999
PARTNERS Contributed)
Xxxxx Xxxxxxx .25 12,272 .1153%
Xxxx Xxxxxxxx .5 24,546 .2307%
Revocable Trust dtd.
5/6/83
Xxxxxxx X. Xxxxxxxx .67 22,892 .2152%
Xxxxx X. Xxxxxxxx 250 .0023%
Xxxxxx X. Xxxxxxxx 250 .0023%
Xxxx X. Xxxxxxxx 250 .0023%
Xxxxxx X. Xxxxxxxx as 250 .0023%
custodian for Xxxx
Xxxxxx Xxxxxxx
xxXxxxx Family Trust .25 12,273 .1154%
dtd. 6/21/90
Xxxxx Xxxxxxx .125 6,136 .0577%
Xxxxxxx X. Xxxxxx .5 24,546 .2307%
Xxxxxxxxx Xxxxx .5 24,546 .2307%
Fremar Company .1425 6,996 .0658%
Xxxxxxx X. Xxxxxxxxxx .125 6,136 .0577%
Xxxx Xxxxx Xxxx Trust .5 24,546 .2307%
Xxxxxx X. Xxxxx, M.D. .5 24,546 .2307%
Xxxxxx X. Xxxxxxx 1.0 49,093 .4614%
Xxxxxxx X. Xxxxxxx .07 3,436 .0323%
Xxxxxxxx Xxxxxxxxx, 1.0 49,093 .4614%
M.D.
Xxxxxx X. Xxxxxx, 1.0 49,093 .4614%
Trustee
Xxxxxx X. Xxxxxx Rev.
Trust u/a/d 4/6/90
Xxxx X. Xxxxxxxx .25 12,272 .1153%
A-22
79
PARTNERS' CONTRIBUTIONS AND PARTNERSHIP INTERESTS
Name and Address of Capital Partnership Percentage Redemption
Partner Contribution Units Interest Date
------- ------------ ----- -------- ----
Ventana Canyon, Inc. .25 12,272 .1153%
Potter Family Trust .5 24,546 .2307%
u/a dtd 7/24/98 -
Xxxxx X. Xxxxxx and
Xxxxxxxxx X. Xxxxxx,
Trustees
E. Xxxxxx Xxxxxxx .25 12,272 .1153%
Xxx X. Xxxxxxxxx TTEE 1.0 49,093 .4614%
Xxxxxx X. & Xxx X.
Xxxxxxxx Marital
Trust U/A dtd. 1/7/82
Xxxxxxx X. Seed, M.D. .335 16,446 .1546%
Xxxxxxxx X. Xxxxx .5 24,546 .2307%
Xxxxx Xxxxx .5 24,546 .2307%
Xxxxx X. Xxxxx TTEE .5 24,546 .2307%
Xxxxx Xxxxxxx Xxxxx
Intervivos Trust
Xxxxx X. Xxxxxx .5 24,546 .2307%
(Class B Units
Contributed)
E. Xxxxxx Xxxxxxx 7.5 344,663 3.239%
Xxxx Xxxxx 1.0 30,000 .2820%
Ventana Canyon Inc. 2.5 114,887 1.080%
Xxxxxxx X. Xxxxxxxx 1.6 73,528 .6911%
Trust
dtd. 4/5/90
Barnnix, Inc. 1% G.P. interest 33,957 .3192%
A-23
80
As a result of the contribution of the interests in the Savannah
Waterfront Hotel LLC ("Savannah") on January 29, 1998, the General Partner
pursuant to Section 4.2.A and Sections 14.1.B(2) and 14.1.B(3) of this Agreement
has authorized the issuance of Partnership Units to those former members of
Savannah (the "Savannah Limited Partners") electing to contribute all or a
portion of their interests to the Partnership. Each Savannah Limited Partner
shall receive the number of Units specified below. For purposes of applying the
terms and conditions of the Partnership Agreement, the Savannah Limited Partners
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, each
Savannah Limited Partner shall be entitled to receive distributions with respect
to each Partnership Unit equal to the cash dividend payable with respect to each
share of LXP common stock, determined at the time of each quarterly distribution
beginning with the distribution payable to shareholders of record of LXP on
January 30, 1998.
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
Savannah Limited Partners. Pursuant to the General Partners' authority in
Section 14.1.B(3), Partnership taxable income shall be specially allocated to
the Savannah Limited Partners in an amount equal to, but not in excess of, all
cash distributions to the Savannah Limited Partners; provided, however, that the
Savannah Limited Partners shall be allocated taxable income (i) as otherwise
required in Exhibit B and C of the Partnership Agreement, and (ii) resulting
from the transaction in which the Replacement Property (as defined below) was
acquired. For purposes of Section 6.1C of the Partnership Agreement, Nonrecourse
Liabilities of the Partnership shall be allocated to account for any income or
gain to be allocated to the Savannah Limited Partners pursuant to Sections 2.B
and 2.D of Exhibit C, in the same priority as Nonrecourse Liabilities are
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allocated to the Property Limited Partners, the Red Butte Limited Partners, the
Expansion Limited Partners, the Savannah Limited Partners, the Phoenix Limited
Partners and any subsequent Additional Limited Partners that are admitted to the
Partnership. The Partnership covenants to retain sufficient Nonrecourse
Liabilities to permit the allocation of such Nonrecourse Liabilities to the
Savannah Limited Partners in an amount sufficient to avoid recapture of tax
liability with respect to the Savannah Limited Partners' negative capital
accounts.
For purposes of Section 8.4 of the Partnership Agreement, on
January 15, 1999, and on each January 15, April 15, July 15 and October 15
thereafter (each a "Notice Date"), each Savannah Limited Partner shall have the
right (the "Savannah Limited Partner Redemption Right") to require the
Partnership to redeem on a Specified Redemption Date the Partnership Units held
by a Savannah Limited Partner for the Redemption Amount to be delivered by the
Partnership; provided, however, that a Savannah Limited Partner 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 Savannah Limited Partner Redemption Right shall be exercised pursuant to a
Notice of Redemption (substantially in the form of Exhibits D-1 through D-4
modified to reflect the Savannah Limited Partner) delivered to the General
Partner and LXP on a Notice Date by the Savannah Limited Partner who is
exercising the redemption right (the "Savannah Redeeming Partner"). The Savannah
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 any Savannah Limited Partner may exercise
the redemption rights of such Savannah Limited Partner, and such Savannah
Limited Partner 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
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such rights by such Assignee on behalf of such Savannah Limited Partner, the
Redemption Amount shall be delivered by the Partnership directly to such
Assignee and not to such Savannah Limited Partner.
The Partnership Units held by the Savannah Limited Partners shall
be subject to redemption by the Partnership if otherwise required by the terms
of the Partnership Agreement.
The Partnership hereby covenants not to permit Savannah to dispose
of its interest in those certain properties acquired by Savannah in connection
with its rights under that certain Exchange Agreement dated December 29, 1997
between Savannah and Security Trust Company (the property so acquired, the
"Replacement Property") prior to January 1, 2003 without the prior consent of
the holders of fifty-one percent (51%) of the Partnership Units held by Savannah
Limited Partners, except in the event of a foreclosure or in the event the
Partnership determines that such a disposition is necessary to ensure its
continued qualification as a real estate investment trust. In any event in which
the Partnership determines to cause Savannah to dispose of the Replacement
Property, the Partnership agrees to use its best efforts to cause Savannah to
structure such a disposition as an exchange that meets the requirements of Code
Section 1031. Notwithstanding the foregoing, if the Partnership does dispose of
its interest prior to January 15, 1999, then the General Partner shall provide
prompt written notification to the Savannah Limited Partners of such disposition
and each such Savannah Limited Partner may exercise its Savannah Limited Partner
Redemption Right on the last Business Day of the calendar year in which such
disposition occurs or, if later, ten (10) Business Days following the
consummation of such transaction. In addition, if the Code Section 1031 exchange
described in the Exchange Agreement does not take place, or if such exchange
does not result in a deferral of all of the gain that would have been recognized
upon the sale by Savannah of the Relinquished Property (as defined in the
Exchange Agreement), then the General Partner shall provide prompt written
notification to the Savannah Limited Partners and
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shall cause LCIF to distribute cash to the Savannah Limited Partners in
redemption of the portion of their LCIF Units corresponding to the portion of
the value of the Relinquished Property which is treated as transferred in a
taxable transaction.
LXP agrees to enter into a Guaranty Agreement with the Partnership
on the date the Savannah Limited Partners 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. Each of the Savannah Redeeming Partner, LXP,
the Partnership and the General Partner shall treat the transaction between LXP
and the Savannah Redeeming Partner as a sale of the Savannah Redeeming Partner's
Partnership Units to LXP or the General Partner, as the case may be, for federal
income tax purposes. Each Savannah 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 Savannah Limited Partner Redemption
Right.
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Capital Partnership Percentage Redemption
Name and Address of Partner Contribution Units Interest Exercise Date
--------------------------- ------------ ----- -------- -------------
SAVANNAH LIMITED PARTNERS (Units January 15, 1999
Contributed)
H. Xxxxxxxx Xxxx, Xx. 1,100 157,447 1.480%
Xxxxxxxxx X. Xxxx 125 17,891 .1682%
Xxxxxxx X. Xxxx 125 17,891 .1682%
Xxxxxxx X. Xxxxxxxx Trust 125 17,891 .1682%
dtd. 4/5/90
Xxxxx Xxxxx 275 39,361 .3700%
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As a result of the Partnership having entered into a Contribution
Agreement with RBH Ventures, a Washington general partnership on May 8, 1998,
pursuant to which the Partnership acquired 51.31% of the net equity value of
certain real property located in the city of Anchorage, Alaska, on which is
located a commercial building (the "Anchorage Property") from RBH, the General
Partner pursuant to Section 4.2.A and Sections 14.1.B(2) and 14.1.B(3) of this
Agreement has authorized the issuance of Partnership Units to RBH (the
"Anchorage Limited Partner"). The Anchorage Limited Partner shall receive the
number of Units specified below. For purposes of applying the terms and
conditions of the Partnership Agreement, the Anchorage Limited Partner shall be
a Partner of the Partnership with the rights and obligations of Additional
Limited Partners.
For purposes of Section 5.1 of the Partnership Agreement, the
Anchorage Limited Partner shall be entitled to receive distributions with
respect to each Partnership Unit equal to the cash dividend payable with respect
to each share of LXP common stock, determined at the time of each quarterly
distribution beginning with the distribution payable to shareholders of record
of LXP on July 30, 1998.
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
Anchorage Limited Partner. Pursuant to the General Partner's authority in
Section 14.1.B(3), Partnership taxable income shall be specially allocated to
the Anchorage Limited Partner in an amount equal to, but not in excess of, all
cash distributions to the Anchorage Limited Partner; provided, however, that the
Anchorage Limited Partner shall be allocated taxable income as otherwise
required in Exhibit B and C of the Partnership Agreement. For purposes of
Section 6.1C of the Partnership Agreement, Nonrecourse Liabilities of the
Partnership shall be allocated to account for any income or gain to be allocated
to the Anchorage Limited Partner pursuant to Sections 2.B and 2.D of Exhibit C,
in the same priority as Nonrecourse Liabilities are allocated to the Property
Limited Partners, the Red Butte
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Limited Partners, the Expansion Limited Partners, the Savannah Limited Partners,
the Phoenix Limited Partners and any subsequent Additional Limited Partners that
are admitted to the Partnership. The Partnership covenants to retain sufficient
Nonrecourse Liabilities to permit the allocation of such Nonrecourse Liabilities
to the Anchorage Limited Partner in an amount sufficient to avoid recapture of
tax liability with respect to the Anchorage Limited Partner's negative capital
accounts.
For purposes of Section 8.4 of the Partnership Agreement, on July
15, 1999, and on each July 15, October 15, January 15 and April 15 thereafter
(each a "Notice Date"), the Anchorage Limited Partner shall have the right (the
"Anchorage Limited Partner Redemption Right") to require the Partnership to
redeem on a Specified Redemption Date the Partnership Units held by the
Anchorage Limited Partner for the Redemption Amount to be delivered by the
Partnership; provided, however, that the Anchorage Limited Partner 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 Anchorage Limited Partner Redemption Right shall be exercised pursuant to a
Notice of Redemption (substantially in the form of Exhibits D-1 through D-4
modified to reflect the Anchorage Limited Partner) delivered to the General
Partner and LXP on a Notice Date by the Anchorage Limited Partner who is
exercising the redemption right (the "Anchorage Redeeming Partner"). The
Anchorage 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 Anchorage Limited
Partner may exercise the redemption rights of the Anchorage Limited Partner, and
the Anchorage Limited Partner 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 Anchorage
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Limited Partner, such Redemption Amount shall be delivered by the Partnership
directly to such Assignee and not to such Anchorage Limited Partner.
The Partnership Units held by the Anchorage Limited Partner shall
be subject to redemption by the Partnership if otherwise required by the terms
of the Partnership Agreement.
LXP agrees to enter into a Guaranty Agreement with the Partnership
on the date the Anchorage Limited Partner is 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. Each of the Anchorage Redeeming Partner, LXP,
the Partnership and the General Partner shall treat the transaction between LXP
and the Anchorage Redeeming Partner as a sale of the Anchorage Redeeming
Partner's Partnership Units to LXP or the General Partner, as the case may be,
for federal income tax purposes. The Anchorage 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 Anchorage Limited Partner
Redemption Right.
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Capital Partnership Percentage Redemption
Name and Address of Partner Contribution Units Interest Exercise Date
--------------------------- ------------ ----- -------- -------------
ANCHORAGE LIMITED PARTNER July 15, 1999
Sarkowsky Family Limited 181,375 1.705%
Partnership
Xxxxxx X. Xxxxxxxx 97,816 .9194%
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As a result of the Partnership having entered into a Contribution
Agreement with Trademark Lancaster L.P., a Texas limited partnership ("Trademark
Lancaster") on June 19, 1998, pursuant to which the Partnership acquired from
Trademark Lancaster the right, title and interest as a purchaser in the Contract
of Sale and Joint Escrow Instructions dated December 16, 1997 between Michaels
Stores, Inc. as seller and Trademark Acquisition and Development, Inc. as
purchaser (the "Lancaster Contract"), which has as its subject matter all that
certain plot, piece, or parcel of land comprising 36.95 acres, together with the
buildings and improvements constructed thereon consisting of a one story
distribution facility comprising approximately 432,000 square feet
(collectively, the "Lancaster California Property"), the General Partner
pursuant to Section 4.2.A and Sections 14.1.B(2) and 14.1.B(3) of this Agreement
has authorized the issuance of Partnership Units to Trademark Lancaster (the
"Trademark Lancaster Limited Partner"). The Trademark Lancaster Limited Partner
shall receive the number of Units specified below. For purposes of applying the
terms and conditions of the Partnership Agreement, the Trademark Lancaster
Limited Partner shall be a Partner of the Partnership with the rights and
obligations of Additional Limited Partners.
For purposes of Section 5.1 of the Partnership Agreement, the
Trademark Lancaster Limited Partner shall be entitled to receive distributions
with respect to each Partnership Unit equal to the cash dividend payable with
respect to each share of LXP common stock, determined at the time of each
quarterly distribution beginning with the distribution payable to shareholders
of record of LXP on July 30, 1998.
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
Trademark Lancaster Limited Partner. Pursuant to the General Partner's authority
in Section 14.1.B(3), Partnership taxable income shall be specially allocated to
the Trademark Lancaster Limited Partner in an amount equal to, but not in
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excess of, all cash distributions to the Trademark Lancaster Limited Partner;
provided, however, that the Trademark Lancaster Limited Partner shall be
allocated taxable income as otherwise required in Exhibit B and C of the
Partnership Agreement. For purposes of Section 6.1C of the Partnership
Agreement, Nonrecourse Liabilities of the Partnership shall be allocated to
account for any income or gain to be allocated to the Trademark Lancaster
Limited Partner pursuant to Sections 2.B and 2.D of Exhibit C, in the same
priority as Nonrecourse Liabilities are allocated to the Property Limited
Partners, the Red Butte Limited Partners, the Expansion Limited Partners, the
Savannah Limited Partners, the Phoenix Limited Partners, the Anchorage Limited
Partner and any subsequent Additional Limited Partners that are admitted to the
Partnership. The Partnership covenants to retain sufficient Nonrecourse
Liabilities to permit the allocation of such Nonrecourse Liabilities to the
Trademark Lancaster Limited Partner in an amount sufficient to avoid recapture
of tax liability with respect to the Trademark Lancaster Limited Partner's
negative capital accounts.
For purposes of Section 8.4 of the Partnership Agreement, on March
1, 1999, and on each March 1, June 1, September 1, and December 1 thereafter
(each a "Notice Date"), the Trademark Lancaster Limited Partner shall have the
right (the "Trademark Lancaster Limited Partner Redemption Right") to require
the Partnership to redeem on a Specified Redemption Date the Partnership Units
held by the Trademark Lancaster Limited Partner for the Redemption Amount to be
delivered by the Partnership; provided, however, that the Trademark Lancaster
Limited Partner 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 Trademark Lancaster Limited Partner Redemption Right shall
be exercised pursuant to a Notice of Redemption (substantially in the form of
Exhibits D-1 through D-4 modified to reflect the Trademark Lancaster Limited
Partner) delivered to the General Partner and LXP on a Notice Date by the
Trademark Lancaster Limited Partner who is exercising the redemption right (the
"Trademark Lancaster Redeeming Partner"). The
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Trademark Lancaster 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 Trademark Lancaster
Limited Partner may exercise the redemption rights of the Trademark Lancaster
Limited Partner, and the Trademark Lancaster Limited Partner 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 Trademark Lancaster Limited Partner, such
Redemption Amount shall be delivered by the Partnership directly to such
Assignee and not to such Trademark Lancaster Limited Partner.
The Partnership Units held by the Trademark Lancaster Limited
Partner shall be subject to redemption by the Partnership if otherwise required
by the terms of the Partnership Agreement.
LXP agrees to enter into a Guaranty Agreement with the Partnership
on the date the Trademark Lancaster Limited Partner is 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. Each of the Trademark
Lancaster Redeeming Partner, LXP, the Partnership and the General Partner shall
treat the transaction between LXP and the Trademark Lancaster Redeeming Partner
as a sale of the Trademark Lancaster Redeeming Partner's Partnership Units to
LXP or the General Partner, as the case may be, for federal income tax purposes.
The Trademark Lancaster 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 Trademark Lancaster Limited Partner Redemption
Right.
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Capital Partnership Percentage Redemption
Name and Address of Partner Contribution Units Interest Exercise Date
--------------------------- ------------ ----- -------- -------------
TRADEMARK LANCASTER LIMITED March 1, 1999
PARTNER
Trademark Lancaster, L.P. 125,416 1.179%
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COLUMBIA LIMITED PARTNERS SUPPLEMENT
As a result of the Partnership having entered into (i) a
Contribution Agreement with Columbia Property Associates, a Maryland limited
partnership ("CPA") on December 31, 1998, pursuant to which the Partnership
acquired an estate-for- years interest in a parcel of real property located in
Columbia, Maryland (the "Columbia Property") from CPA, (ii) a Contribution
Agreement with The E. Xxxxxx Xxxxxxx Irrevocable Trust on December 3, 1998
pursuant to which the Partnership acquired a remainder interest in the Columbia
Property, (iii) a Contribution Agreement with The LCP Group, L.P. on December 3,
1998, (iv) a Contribution Agreement with The LCP Group, L.P. on December 3,
1998, and (v) a Contribution Agreement with The LCP Group, L.P., Xxxxxx Page,
Inc., Xxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxx Trust on December 3, 1998, the
General Partner pursuant to Section 4.2.A and Sections 14.1.B(2) and 14.1.B(3)
of this Agreement has authorized the issuance of Partnership Units to all former
partners of CPA, The LCP Group, L.P., Xxxxxx Page, Inc., Xxxxx X. Xxxxxxxx,
Xxxxxxx X. Xxxxxxxx Trust and The E. Xxxxxx Xxxxxxx Irrevocable Trust (the
"Columbia Limited Partners"). The Columbia Limited Partners shall receive the
number of Units specified below. For purposes of applying the terms and
conditions of the Partnership Agreement, the Columbia Limited Partners shall be
a Partner of the Partnership with the rights and obligations of Additional
Limited Partners.
For purposes of Section 5.1 of the Partnership Agreement, each
Columbia Limited Partner shall be entitled to receive distributions with respect
to each Partnership Unit equal to the cash dividend payable with respect to each
share of LXP common stock, determined at the time of each quarterly distribution
beginning with the distribution in respect to the first quarter of 1999.
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
Columbia Limited Partners. Pursuant to the General Partner's
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authority in Section 14.1.B(3), Partnership taxable income shall be specially
allocated to the Columbia Limited Partners in an amount equal to, but not in
excess of, all cash distributions to the Columbia Limited Partners; provided,
however, that the Columbia Limited Partners shall be allocated taxable income as
otherwise required in Exhibit B and C of the Partnership Agreement. For purposes
of Section 6.1C of the Partnership Agreement, Nonrecourse Liabilities of the
Partnership shall be allocated to account for any income or gain to be allocated
to the Columbia Limited Partners pursuant to Sections 2.B and 2.D of Exhibit C,
in the same priority as Nonrecourse Liabilities are allocated to the Property
Limited Partners, the Red Butte Limited Partners, the Expansion Limited
Partners, the Savannah Limited Partners, the Phoenix Limited Partners, the
Anchorage Limited Partner, the Trademark Lancaster Limited Partner and any
subsequent Additional Limited Partners that are admitted to the Partnership. The
Partnership covenants to retain sufficient Nonrecourse Liabilities to permit the
allocation of such Nonrecourse Liabilities to the Columbia Limited Partners in
an amount sufficient to avoid recapture of tax liability with respect to the
Columbia Limited Partners' negative capital accounts.
For purposes of Section 8.4 of the Partnership Agreement, on
December 1, 1999, and on each December 1, March 1, June 1 and September 1
thereafter (each a "Notice Date"), each Columbia Limited Partner shall have the
right (the "Columbia Limited Partner Redemption Right") to require the
Partnership to redeem on a Specified Redemption Date the Partnership Units held
by a Columbia Limited Partner for the Redemption Amount to be delivered by the
Partnership; provided, however, that a Columbia Limited Partner 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 Columbia Limited Partner Redemption Right shall be exercised pursuant to a
Notice of Redemption (substantially in the form of Exhibits D-1 through D-4
modified to reflect the Columbia Limited Partner) delivered to the General
Partner and LXP on a Notice Date by the Columbia Limited Partner who is
exercising the redemption right (the "Columbia Redeeming
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Partner"). The Columbia 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 Columbia Limited
Partner may exercise the redemption rights of the Columbia Limited Partner, and
the Columbia Limited Partner 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 such Columbia Limited Partner, such Redemption Amount shall be
delivered by the Partnership directly to such Assignee and not to such Columbia
Limited Partner.
The Partnership Units held by the Columbia Limited Partners 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 Columbia Property prior to January 1, 2004 except in the event of a
foreclosure or in the event the Partnership determines that such a disposition
is necessary to ensure its continued qualification as a real estate investment
trust.
LXP agrees to enter into a Guaranty Agreement with the Partnership
on the date the Columbia Limited Partners 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. Each of the Columbia Redeeming Partner, LXP,
the Partnership and the General Partner shall treat the transaction between LXP
and the Columbia Redeeming Partner as a sale of the Columbia Redeeming Partner's
Partnership Units to LXP or the General Partner, as the case may be, for federal
income tax purposes. The Columbia Redeeming Partner agrees to execute
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such documents as the Partnership may reasonably require in connection with the
issuance of REIT shares upon exercise of the Columbia Limited Partner Redemption
Right.
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Capital Partnership Percentage Redemption
Name and Address of Partner Contribution Units Interest Exercise Date
--------------------------- ------------ ----- -------- -------------
COLUMBIA LIMITED PARTNERS (Units December 1, 1999
Contributed)
Xxxxxxx X. Xxxxxxxxx 1.0 7,731 .0727%
Xxxxx X. Xxxx 1.0 7,731 .0727%
Xxxxxxxx X. Xxxxxxxx 1.0 7,731 .0727%
Xxxxx X. Xxxxxx 0.5 3,866 .0363%
Xxxxx Xxxxxx 0.5 3,866 .0363%
Xxxxxx Xxxxx 0.5 3,866 .0363%
Xxxx X. Xxxxx 0.5 3,866 .0363%
Xxxxxxx X. Xxxxxx 0.5 3,866 .0363%
Xxxxx Xxxx 1.0 7,731 .0727%
Xxxxxxx Xxxxxxx 0.5 3,866 .0363%
Xxx Xxxxx 0.5 3,866 .0363%
Xxxxx Xxxxxx 0.5 3,866 .0363%
Xxxxxxx Xxxx 0.5 3,866 .0363%
Xxxxxx Xxxxx 1.0 7,731 .0727%
Xxxxx X. Xxxxxx 0.5 3,866 .0363%
The LCP Group, L.P. 86,014 .8084%
Xxxxxx Page, Inc. 23,342 .2194%
Xxxxx X. Xxxxxxxx 6,766 .0636%
Xxxxxxx X. Xxxxxxxx Trust 1,349 .0127%
E. Xxxxxx Xxxxxxx Irrevocable 19,231 .1808%
Trust
Xxxxx X. Xxxxxxxx 392.5 .0037%
Xxxxx X. Xxxxxxxxxx 392.5 .0037%
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EXHIBIT B
CAPITAL ACCOUNT MAINTENANCE
1. Capital Accounts of the Partners
A. The Partnership shall maintain for each Partner a separate
Capital Account in accordance with the rules of Regulations Section
1.704-1(b)(2)(iv). Such Capital Account shall be increased by (i) the amount of
all Capital Contributions and any other deemed contributions made by such
Partner to the Partnership pursuant to this Agreement and (ii) all items of
Partnership income and gain (including income and gain exempt from tax) computed
in accordance with Section 1.B hereof and allocated to such Partner pursuant to
Section 6.1.A of the Agreement and Exhibit C hereof, and decreased by (x) the
amount of cash or Agreed Value of all actual and deemed distributions of cash or
property made to such Partner pursuant to this Agreement and (y) all items of
Partnership deduction and loss computed in accordance with Section 1.B hereof
and allocated to such Partner pursuant to Section 6.1.B of the Agreement and
Exhibit C hereof.
B. For purposes of computing the amount of any item of income,
gain, deduction or loss to be reflected in the Partners' Capital Accounts,
unless otherwise specified in this Agreement, the determination, recognition and
classification of any such item shall be the same as its determination,
recognition and classification for federal income tax purposes determined in
accordance with Section 703(a) of the Code (for this purpose all items of
income, gain, loss or deduction required to be stated separately pursuant to
Section 703(a)(1) of the Code shall be included in taxable income or loss), with
the following adjustments:
(1) Except as otherwise provided in Regulation Section
1.704-1(b)(2)(iv)(m), the computation of all items of income, gain, loss and
deduction shall be made without regard to any election under Section 754 of the
Code which may be made by the Partnership; provided that the amounts of any
adjustments to the adjusted bases of the assets of the Partnership made pursuant
to Section 734 of the Code as a result of the distribution of property by the
Partnership to a Partner (to the extent that such adjustments have not
previously been reflected in the Partners' Capital Accounts) shall be reflected
in the Capital Accounts of the Partners in the manner and subject to the
limitations prescribed in Regulations Section 1.704-1(b)(2)(iv)(m)(4).
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99
(2) The computation of all items of income, gain, loss and
deduction shall be made without regard to the fact that items described in
Sections 705(a)(1)(B) or 705(a)(2)(B) of the Code are not includable in gross
income or are neither currently deductible nor capitalized for federal income
tax purposes.
(3) Any income, gain or loss attributable to the taxable
disposition of any Partnership property shall be determined as if the adjusted
basis of such property as of such date of disposition were equal in amount to
the Partnership's Carrying Value with respect to such property as of such date.
(4) In lieu of the depreciation, amortization, and other cash
recovery deductions taken into account in computing such taxable income or loss,
there shall be taken into account Depreciation for such fiscal year.
(5) In the event the Carrying Value of any Partnership Asset
is adjusted pursuant to Section 1.D hereof, the amount of any such adjustment
shall be taken into account as gain or loss from the disposition of such asset.
(6) Any items specially allocated under Section 2 of Exhibit C
hereof shall not be taken into account.
C. Generally, a transferee (including any Assignee) of a
Partnership Unit shall succeed to a pro rata portion of the Capital Account of
the transferor; provided that if the transfer causes a termination of the
Partnership under Section 708(b)(1)(B) of the Code, the Partnership's properties
shall be deemed, solely for federal income tax purposes, to have been
distributed in liquidation of the Partnership to the holders of Partnership
Units (including such transferee) and re-contributed by such Persons in
reconstitution of the Partnership. In such event, the Carrying Values of the
Partnership properties shall be adjusted immediately prior to such deemed
distribution pursuant to Section x.X.(2) hereof. The Capital Accounts of such
reconstituted Partnership shall be maintained in accordance with the principles
of this Exhibit B.
D. (1) Consistent with the provisions of Regulations Section
1.704-1(b)(2)(iv)(f), and as provided in Section 1.D.(2), the Carrying Values of
all Partnership assets shall be adjusted upward or downward to reflect any
Unrealized Gain or Unrealized Loss attributable to such Partnership property, as
of the times of the adjustments provided in Section 1.D.(2) hereto, as if such
Unrealized Gain or Unrealized Loss had been recognized on an
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100
actual sale of each such property and allocated pursuant to Section 6.1 of the
Agreement.
(2) Such adjustments shall be made as of the following times:
(a) immediately prior to the acquisition of an additional interest in the
Partnership by any new or existing Partner in exchange for more than a de
minimis Capital Contribution; (b) immediately prior to the distribution by the
Partnership to a Partner of more than a de minimis amount of property as
consideration for an interest in the Partnership; and (c) immediately prior to
the liquidation of the Partnership within the meaning of Regulations Section
1.704-1(b)(2)(ii)(g); provided that adjustments pursuant to clauses (a) and (b)
above shall be made only if the General Partner determines that such adjustments
are necessary or appropriate to reflect the relative economic interests of the
Partners in the Partnership.
(3) In accordance with Regulations Section
1.704-1(b)(2)(iv)(e) the Carrying Value of Partnership assets distributed in
kind shall be adjusted upward or downward to reflect any Unrealized Gain or
Unrealized Loss attributable to such Partnership property, as of the time any
such asset is distributed.
(4) In determining Unrealized Gain or Unrealized Loss for
purposes of this Exhibit B, the aggregate cash amount and fair market value of
all Partnership assets (including cash or cash equivalents) shall be determined
by the General Partner using such reasonable method of valuation as it may
adopt, or in the case of a liquidating distribution pursuant to Article 13 of
the Agreement, be determined and allocated by the Liquidator using such
reasonable methods of valuation as it may adopt. The General Partner, or the
Liquidator, as the case may be, shall allocate such aggregate value among the
assets of the Partnership (in such manner as it determines in its sole and
absolute discretion to arrive at a fair market value for individual properties).
E. The provisions of this Agreement (including this Exhibit B and
the other Exhibits to this Agreement) relating to the maintenance of Capital
Accounts are intended to comply with Regulations Section 1.704-1(b), and shall
be interpreted and applied in a manner consistent with such Regulations. In the
event the General Partner shall determine that it is prudent to modify the
manner in which the Capital Accounts, or any debits or credits thereto
(including, without limitation, debits or credits relating to liabilities which
are secured by contributed or
B-3
101
distributed property or which are assumed by the Partnership, the General
Partner, or the Limited Partners), are computed in order to comply with such
Regulations, the General Partner may make such modification, provided that it is
not likely to have a material effect on the amounts distributable to any Person
pursuant to Article 13 of the Agreement upon the dissolution of the Partnership.
The General Partner also shall (i) make any adjustments that are necessary or
appropriate to maintain equality between the Capital Accounts of the Partners
and the amount of Partnership Capital reflected on the Partnership's balance
sheet, as computed for book purposes, in accordance with Regulations Section
1.704-1(b)(2)(iv)(q), and (ii) make any appropriate modifications in the event
unanticipated events might otherwise cause this Agreement not to comply with
Regulations Section 1.704-1(b).
2. No Interest
No interest shall be paid by the Partnership on Capital
Contributions or on balances in Partners' Capital Accounts.
3. No Withdrawal
No Partner shall be entitled to withdraw any part of his Capital
Contributions or his Capital Account or to receive any distribution from the
Partnership, except as provided in this Agreement.
EXHIBIT C
SPECIAL ALLOCATION RULES
1. Special Allocation Rules
Notwithstanding any other provision of the Agreement or this
Exhibit C, the following special allocations shall be made in the following
order:
A. Minimum Gain Chargeback. Notwithstanding the provisions of
Section 6.1 of the Agreement or any other provisions of this Exhibit C, if
there is a net decrease in Partnership Minimum Gain during any Partnership Year,
each Partner shall be specially allocated items of Partnership income and gain
for such year (and, if necessary, subsequent years) in an amount equal to such
Partner's share of the net decrease in Partnership Minimum Gain, as determined
under Regulations Section 1.704-2(g). Allocations pursuant to the previous
sentence shall be made in proportion to the respective amounts required to be
allocated to each Partner pursuant thereto. The items to be so allocated shall
be determined in accordance with Regulations
102
Section 1.704-2(f)(6). This Section l.A is intended to comply with the minimum
gain chargeback requirements in Regulations Section 1.704-2(f) and for purposes
of this Section l.A only, each Partner's Adjusted Capital Account Deficit shall
be determined prior to any other allocations pursuant to Section 6.1 of this
Agreement with respect to such Partnership Year and without regard to any
decrease in Partner Minimum Gain during such Partnership Year.
B. Partner Minimum Gain Chargeback. Notwithstanding any other
provision of Section 6.1 of the Agreement or any other provisions of this
Exhibit C (except Section l.A. hereof), if there is a net decrease in Partner
Minimum Gain attributable to a Partner Nonrecourse Debt during any Partnership
Year, each Partner who has a share of the Partner Minimum Gain attributable to
such Partner Nonrecourse Debt, determined in accordance with Regulations Section
1.704-2(i)(5), shall be specially allocated items of Partnership income and gain
for such year (and, if necessary, subsequent years) in an amount equal to such
Partner's share of the net decrease in Partner Minimum Gain attributable to such
Partner Nonrecourse Debt, determined in accordance with Regulations Section
1.704-2(i)(5). Allocations pursuant to the previous sentence shall be made in
proportion to the respective amounts required to be allocated to each Partner
pursuant thereto. The items to be so allocated shall be determined in accordance
with Regulations Section 1.704-2(i)(4). This Section 1.B is intended to comply
with the minimum gain chargeback requirement in such Section of the Regulations
and shall be interpreted consistently therewith. Solely for the purposes of this
Section 1.B, each Partner's Adjusted Capital Account Deficit shall be determined
prior to any other allocations pursuant to Section 6.1 of the Agreement or this
Exhibit C with respect to such Partnership Year, other than allocations-pursuant
to Section 1.A hereof.
C. Qualified Income Offset. In the event any Partner unexpectedly
receives any adjustments, allocations or distributions described in Regulations
Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or
1.704-1(b)(2)(ii)(d)(6), and after giving effect to the allocations required
under Sections l.A and l.B hereof, such Partner has an Adjusted Capital Account
Deficit, items of Partnership income and gain shall be specifically allocated to
such Partner in an amount and manner sufficient to eliminate, to the extent
required by the Regulations, its Adjusted Capital Account Deficit created by
such adjustments, allocations or distributions as quickly as possible.
C-2
103
D. Nonrecourse Deductions. Nonrecourse Deductions for any
Partnership Year shall be allocated to the Partners in accordance with their
respective Percentage Interests. If the General Partner determines in its good
faith discretion that Nonrecourse Deductions for any Partnership Year must be
allocated in a different ratio to satisfy the safe harbor requirements of the
Regulations promulgated under Section 704(b) of the Code, the General Partner is
authorized, upon notice to the Initial Limited Partner and the Limited Partners,
to revise the prescribed ratio for such Partnership Year to the numerically
closest ratio which does satisfy such requirements.
E. Partner Nonrecourse Deductions. Any Partner Nonrecourse
Deductions for any Partnership Year shall be specially allocated to the Partner
who bears the economic risk of loss with respect to the Partner Nonrecourse Debt
to which such Partner Nonrecourse Deductions are attributable in accordance with
Regulations Section 1.704-2(i)(2).
F. Code Section 754 Adjustments. To the extent an adjustment to
the adjusted tax basis of any Partnership asset pursuant to Section 734(b) or
743(b) of the Code is required, pursuant to Regulations Section
1.704-1(b)(2)(iv)(m) to be taken into account in determining Capital Accounts,
the amount of such adjustment to the Capital Accounts shall be treated as an
item of gain (if the adjustment increases the basis of the asset) or loss (if
the adjustment decreases such basis), and such item of gain or loss shall be
specially allocated to the Partners in a manner consistent with the manner in
which their Capital Accounts are required to be adjusted pursuant to such
Section of the Regulations.
2. Allocations for Tax Purposes
A. Except as otherwise provided in this Section 2, for federal
income tax purposes, each item of income, gain, loss and deduction shall be
allocated among the Partners in the same manner as its correlative item of
"book" income, gain, loss or deduction is allocated pursuant to Section 6.1 of
the Agreement and Section 1 of this Exhibit C.
B. In an attempt to eliminate Book-Tax Disparities attributable to
a Contributed Property or Adjusted Property, items of income, gain, loss and
deduction shall be allocated for federal income tax purposes among the Partners
as follows:
C-3
104
(1) (a) In the case of a Contributed Property, such items
attributable thereto shall be allocated among the Partners consistent with
the principles of Section 704(c) of the Code that takes into account the
variation between the 704(c) Value of such property and its adjusted basis
at the time of contribution; and
(b) any item of Residual Gain or Residual Loss
attributable to a Contributed Property shall be allocated among the
Partners in the same manner as its correlative item of "book" gain or loss
is allocated pursuant to Section 6.1 of the Agreement and Section 1 of this
Exhibit C.
(2) (a) In the case of an Adjusted Property, such items shall
(1) first, be allocated among the Partners in a
manner consistent with the principles of Section 704(c) of the
Code to take into account the Unrealized Gain or Unrealized Loss
attributable to such property and the allocations thereof pursuant
to Exhibit B and
(2) second, in the event such property was originally
a Contributed Property, be allocated among the Partners in a
manner consistent with Section 2.B.(1) of this Exhibit C; and
(b) any item of Residual Gain or Residual Loss
attributable to an Adjusted Property shall be allocated among the Partners
in the same manner as its correlative item of "book" gain or loss is
allocated pursuant to Section 6.1 of the Agreement and Section 1 of this
Exhibit C.
(3) All other items of income, gain, loss and deduction shall
be allocated among the Partners in the same manner as their correlative item of
"book" gain or loss is allocated pursuant to Section 6.1 of the Agreement and
Section 1 of this Exhibit C.
C. To the extent Regulations promulgated pursuant to 704(c) of the
Code permit a partnership to utilize creative methods to eliminate the
disparities between the value of property and its adjusted basis (including,
without limitation, the implementation of curative allocations), the General
Partner shall have the authority to elect the method used by the Partnership and
such election shall be binding on the Partners.
C-4
105
Without limiting the foregoing, the General Partner shall take all
steps (including, without limitation, implementing curative allocations) that it
determines are necessary or appropriate to ensure that the amount of taxable
gain required to be recognized by the General Partner upon a disposition by the
Partnership of any Contributed Property or Adjusted Property does exceed the sum
of (i) the gain that would be recognized by the General Partner if such property
had an adjusted tax basis at the time of disposition equal to the 704(c) Value
of such property plus (ii) the deductions for depreciation, amortization or
other cost recovery actually allowed to the General Partner with respect to such
property for federal income tax purposes (after giving effect to the "ceiling
rule").
D. Notwithstanding the foregoing, except as otherwise set forth in
this Section 2.D of Exhibit C, a Property Limited Partner shall not be allocated
any items of Partnership income or gain prior to such Property Limited Partner's
applicable Redemption Exercise Date (or such earlier date as a Property Limited
Partner is entitled to exercise its Property Limited Partner Redemption Right
under the second paragraph of Section 8.4.B). Items of income or gain may be
specially allocated to certain limited partners pursuant to Section 6.1.A. Items
of Depreciation shall be allocated to the Property Limited Partners only to the
extent of such Property Limited Partner's Percentage Interest multiplied by the
total book depreciation allocated to the Partnership by the Underlying
Partnership contributed by such Property Limited Partner, with corresponding tax
items allocable to such Property Limited Partner under principles set forth in
Section 2.B of this Exhibit C. Income and gain recognized on a sale by the
Partnership of an interest in an Underlying Partnership, or the sale by an
Underlying Partnership of an interest in its assets, shall be allocated first to
the Property Limited Partners that contributed the interests in such Underlying
Partnership to the Partnership, in an amount necessary to eliminate the Book-Tax
Disparity in such Property Limited Partner's Capital Account, and then in
accordance with such Partners' Percentage Interest. The Partnership shall make a
curative allocation of income and gain in the taxable year of the Partnership in
which a Property Limited Partner exercises its Redemption Right set forth in
Section 8.4.B of this Agreement, or in any other taxable year in which a
Property Limited Partner's interest in LCIF is liquidated. Such curative
allocation of income and gain shall provide that items of Partnership taxable
income or gain will be allocated to such Property Limited Partner, and items of
Partnership book income or gain will be allocated to Partners other than the
Property Limited Partners,
C-5
106
to the extent necessary to eliminate the Property Limited Partner's remaining
Book-Tax Disparity immediately prior to the exercise of the Redemption Right.
C-6
107
EXHIBIT D-1
NOTICE OF REDEMPTION
The undersigned Special Limited Partner hereby irrevocably (i)
redeems ___________ Partnership Units in Lepercq Corporate Income Fund L.P. in
accordance with the terms of the Agreement of Limited Partnership of Lepercq
Corporate Income Fund L.P., as amended, and the Special Limited Partner
Redemption Right referred to therein, (ii) surrenders such Partnership Units and
all right, title and interest therein, and (iii) directs that the Redemption
Amount deliverable upon exercise of the Special Limited Partner Redemption Right
be delivered to the address and placed in the name(s) and at the address(es)
specified below. The undersigned hereby represents, warrants, certifies and
agrees (a) that the undersigned has good, marketable and unencumbered title to
such Partnership Units, free and clear of the rights or interests of any other
person or entity, (b) that the undersigned has the full right, power and
authority to redeem and surrender such Partnership Units as provided herein, (c)
that the undersigned has obtained the consent or approval of all persons or
entities, if any, having the right to consent to or approve such redemption and
surrender, (d) that if the undersigned is acquiring REIT Shares, the undersigned
is doing so with the understanding that such REIT Shares may only be resold or
distributed pursuant to a registration statement under the Securities Act of
1933 or in a transaction exempt from the registration requirements of such Act
and (e) that Lexington Corporate Properties, Inc. may refuse to transfer such
REIT Shares as to which evidence satisfactory to it of such registration or
exemption is not provided to it.
Dated:
-------------
Name of Special Limited Partner:
----------------------------------------
(Signature of Special Limited Partner)
----------------------------------------
(Street Address)
----------------------------------------
(City) (State) (Zip Code)
108
Signature Guaranteed by:
-----------------------------------------
If REIT Shares are issued, issue them to:
Please insert social security or identifying number:
Name:
109
EXHIBIT D-2
NOTICE OF REDEMPTION
The undersigned Property Limited Partner hereby irrevocably
(i) redeems ___________ Partnership Units in Lepercq Corporate Income Fund L.P.
in accordance with the terms of the Agreement of Limited Partnership of Lepercq
Corporate Income Fund L.P., as amended, and the Property Limited Partner
Redemption Right referred to therein, (ii) surrenders such Partnership Units and
all right, title and interest therein, and (iii) directs that the Redemption
Amount deliverable upon exercise of the Property Limited Partner Redemption
Right be delivered to the address and placed in the name(s) and at the
address(es) specified below. The undersigned hereby represents, warrants,
certifies and agrees (a) that the undersigned has good, marketable and
unencumbered title to such Partnership Units, free and clear of the rights or
interests of any other person or entity, (b) that the undersigned has the full
right, power and authority to redeem and surrender such Partnership Units as
provided herein, (c) that the undersigned has obtained the consent or approval
of all persons or entities, if any, having the right to consent to or approve
such redemption and surrender, (d) that if the undersigned is acquiring REIT
Shares, the undersigned is doing so with the understanding that such REIT Shares
may only be resold or distributed pursuant to a registration statement under the
Securities Act of 1933 or in a transaction exempt from the registration
requirements of such Act and (e) that Lexington Corporate Properties, Inc. may
refuse to transfer such REIT Shares as to which evidence satisfactory to it of
such registration or exemption is not provided to it.
Dated:
-------------
Name of Property Limited Partner:
----------------------------------------
(Signature of Property Limited Partner)
----------------------------------------
(Street Address)
----------------------------------------
(City) (State) (Zip Code)
110
Signature Guaranteed by:
----------------------------------------
If REIT Shares are issued, issue them to:
Please insert social security or identifying number:
Name:
111
EXHIBIT D-3
NOTICE OF REDEMPTION
The undersigned Red Butte Limited Partner hereby irrevocably
(i) redeems ___________ Partnership Units in Lepercq Corporate Income Fund L.P.
in accordance with the terms of the Agreement of Limited Partnership of Lepercq
Corporate Income Fund L.P., as amended, and the Red Butte Limited Partner
Redemption Right referred to therein, (ii) surrenders such Partnership Units and
all right, title and interest therein, and (iii) directs that the Redemption
Amount deliverable upon exercise of the Red Butte Limited Partner Redemption
Right be delivered to the address and placed in the name(s) and at the
address(es) specified below. The undersigned hereby represents, warrants,
certifies and agrees (a) that the undersigned has good, marketable and
unencumbered title to such Partnership Units, free and clear of the rights or
interests of any other person or entity, (b) that the undersigned has the full
right, power and authority to redeem and surrender such Partnership Units as
provided herein, (c) that the undersigned has obtained the consent or approval
of all persons or entities, if any, having the right to consent to or approve
such redemption and surrender, (d) that if the undersigned is acquiring REIT
Shares, the undersigned is doing so with the understanding that such REIT Shares
may only be resold or distributed pursuant to a registration statement under the
Securities Act of 1933 or in a transaction exempt from the registration
requirements of such Act and (e) that Lexington Corporate Properties, Inc. may
refuse to transfer such REIT Shares as to which evidence satisfactory to it of
such registration or exemption is not provided to it.
Dated:
-------------
Name of Red Butte Limited Partner:
----------------------------------------
(Signature of Red Butte Limited Partner)
----------------------------------------
(Street Address)
----------------------------------------
(City) (State) (Zip Code)
112
Signature Guaranteed by:
----------------------------------------
If REIT Shares are issued, issue them to:
Please insert social security or identifying number:
Name:
113
EXHIBIT D-4
NOTICE OF REDEMPTION
The undersigned Expansion Limited Partner hereby irrevocably
(i) redeems ___________ Partnership Units in Lepercq Corporate Income Fund L.P.
in accordance with the terms of the Agreement of Limited Partnership of Lepercq
Corporate Income Fund L.P., as amended, and the Expansion Limited Partner
Redemption Right referred to therein, (ii) surrenders such Partnership Units and
all right, title and interest therein, and (iii) directs that the Redemption
Amount deliverable upon exercise of the Expansion Limited Partner Redemption
Right be delivered to the address and placed in the name(s) and at the
address(es) specified below. The undersigned hereby represents, warrants,
certifies and agrees (a) that the undersigned has good, marketable and
unencumbered title to such Partnership Units, free and clear of the rights or
interests of any other person or entity, (b) that the undersigned has the full
right, power and authority to redeem and surrender such Partnership Units as
provided herein, (c) that the undersigned has obtained the consent or approval
of all persons or entities, if any, having the right to consent to or approve
such redemption and surrender, (d) that if the undersigned is acquiring REIT
Shares, the undersigned is doing so with the understanding that such REIT Shares
may only be resold or distributed pursuant to a registration statement under the
Securities Act of 1933 or in a transaction exempt from the registration
requirements of such Act and (e) that Lexington Corporate Properties, Inc. may
refuse to transfer such REIT Shares as to which evidence satisfactory to it of
such registration or exemption is not provided to it.
Dated:
-------------
Name of Expansion Limited Partner:
----------------------------------------
(Signature of Expansion Limited Partner)
----------------------------------------
(Street Address)
----------------------------------------
(City) (State) (Zip Code)
114
Signature Guaranteed by:
----------------------------------------
If REIT Shares are issued, issue them to:
Please insert social security or identifying number:
Name:
