EIGHTH AMENDMENT TO FIFTH AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF LEPERCQ CORPORATE INCOME FUND L.P.
EIGHTH
AMENDMENT TO
FIFTH AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF
LEPERCQ CORPORATE INCOME FUND
L.P.
This
EIGHTH AMENDMENT TO FIFTH
AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP OF
LEPERCQ
CORPORATE INCOME FUND L.P. (this “Amendment”) is made
as of April 24, 2009 and effective as of March 26, 2009 by and among the
entities and individuals signatory hereto.
A. Lepercq Corporate Income Fund
L.P., a Delaware limited partnership (the “Partnership”), is
governed by that certain Fifth Amended and Restated Agreement of Limited
Partnership, dated as of December 31, 1996, as amended by Amendment No. 1
thereto dated as of December 31, 2000, by First Amendment thereto effective as
of June 19, 2003, by Second Amendment thereto effective as of June 30, 2003, by
Third Amendment thereto effective as of December 31, 2003, by Fourth Amendment
thereto effective as of October 28, 2004, by Fifth Amendment thereto effective
as of December 8, 2004, by Sixth Amendment thereto effective as of January 3,
2005, and by the Seventh Amendment thereto effective as of November 2, 2005 (the
“Agreement”). Unless
otherwise defined, all capitalized terms used herein shall have such meaning
ascribed such terms in the Agreement.
B. Lex
GP-1 Trust, a Delaware statutory trust, is the General Partner of the
Partnership.
C. Pursuant
to Section 14.1.B.4 of the Agreement, the General Partner has the power, without
the consent of any other Partner, to amend the Agreement as may be required to
cure an ambiguity, correct or supplement any provision in the Agreement not
inconsistent with law or with other provisions.
NOW, THEREFORE, the
undersigned, being desirous of effectuating the foregoing and amending the
Agreement accordingly, hereby enter into this Amendment, and amend the Agreement
and any supplement to the Agreement entered into prior to the date hereof, as
follows:
1. Amendment to Article
1.
A. The
defined term “Redemption Factor” is hereby deleted in its entirety and replaced
with the following:
“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 (x) with respect to clause (i) of the immediately preceding
sentence, shall become effective immediately after the effective date of such
event retroactive to the day after the record date, if any, for such event, and
(y) with respect to clauses (ii) or (iii) of the immediately preceding sentence,
shall become effective immediately after the effective date of such event
retroactive to the record date, if any, for such event.
B. The
following defined terms shall be added in alphabetical order to Article
1:
“REIT Dividend Limited
Partners” means the Special Limited Partners, the Property Limited
Partners, the Dubuque Limited Partners, the Pacific Place Limited Partners, the
Phoenix Limited Partners, the Savannah Limited Partners, the Anchorage Limited
Partners, the Columbia Limited Partners, the LPM Limited Partners, the 12/31/03
Limited Partners, the Xxxxxxxxxx Limited Partners, and the Westport Limited
Partners.
“REIT Limited Partner
Units” shall mean those Partnership Units issued to REIT Dividend Limited
Partners pursuant to Section 4.1 and 4.2.
“REIT Dividend Limited
Partner Unit Distribution Amounts” means such amounts of distributions
for each REIT Dividend Limited Partner Unit that is equal to (x) the amount of
cash distributions made in respect of one REIT Share outstanding on any given
date multiplied by (y) the Redemption Factor on the applicable record date, such
amount of REIT Dividend Limited Partner Unit Distribution Amounts being adjusted
from time to time in accordance with the Redemption Factor.
2. Amendment to Section
5.1. Section 5.1 of the Agreement is hereby deleted in its
entirety and replaced with the following:
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.
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B. REIT Dividend Limited
Partners. For purposes of this Section 5.1, each REIT Dividend
Limited Partner shall be entitled to receive distributions with respect to each
Partnership Unit equal to the REIT Dividend Limited Partner Unit Distribution
Amount.
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 $0.27 per
Partnership Unit per quarter ($1.08 per Partnership Unit per annum), 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) 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 be entitled 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.
3. Amendment to Section
6.1(c). Section 6.1(c) of the Agreement is hereby deleted in
its entirety and replaced with the following:
For
purposes of Reg 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, Red Butte Limited Partners and the Expansion
Limited Partners pursuant to Sections 2B and 2D of Exhibit C and then among
the Partners in accordance with their respective Percentage Interests, or as is
otherwise permissible in accordance with Regulation Section
1.752-3(a)(3).
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4. Miscellaneous. Except as amended hereby,
the Agreement shall remain unchanged and in full force and
effect.
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IN
WITNESS WHEREOF, the parties hereto have executed this Amendment on behalf of
the Partnership in accordance with the provisions of Section 14.1 of the
Agreement as of the date first written above.
| GENERAL PARTNER: | |||
| LEX GP-1 TRUST | |||
|
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By:
|
/s/ X. Xxxxxx Eglin | |
| X. Xxxxxx Eglin | |||
| President | |||
Consented to by a Majority of the
Special Limited Partners:
THE
LCP GROUP L.P.
By: Third
Lero Corp., its general partner
| By: |
/s/
E. Xxxxxx Xxxxxxx
|
|
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| E. Xxxxxx Xxxxxxx |
|
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| President |
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