Exhibit 10.1
SIXTH AMENDMENT TO
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
LEPERCQ CORPORATE INCOME FUND II
L.P.
This Sixth Amendment (this
“Amendment”) to the Second Amended and Restated
Agreement of Limited Partnership (the “Agreement”) of
Lepercq Corporate Income Fund II L.P. (the
“Partnership”), is dated as of December 20, 2006 and is
made by Lex GP-1 Trust (“GP”), a Delaware corporation,
in its capacity as general partner of LCIF.
A. The
Partnership is governed by that certain Second Amended and Restated
Agreement of Limited Partnership, dated as of August 27, 1998, as
amended 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 8, 2004, by Fourth
Amendment thereto effective as of January 3, 2005, and by Fifth
Amendment thereto effective as of July 23, 2006 (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 Sections 4.2(A), 12.1, 12.2, 14.1(B)(2) 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 reflect the
admission of Partners in accordance with the Agreement.
NOW, THEREFORE
, the undersigned, being desirous of
effectuating the foregoing and amending the Agreement accordingly,
hereby enter into this Amendment and amend the Agreement as
follows:
1.
Exhibit A . Exhibit A of the Agreement is hereby amended by
adding the Duke Limited Partner Supplement attached as Exhibit 1
hereto to the end of Exhibit A of the Agreement, for the purposes
of admitting the Duke Limited Partner (as defined on Exhibit 1) as
a Partner of the Partnership with the rights and obligations of an
Additional Limited Partner.
2.
Miscellaneous . Except as amended hereby, the Agreement
shall remain unchanged and in full force and effect.
IN WITNESS WHEREOF, the parties
hereto have executed this Agreement as of the date first written
above.
GENERAL PARTNER:
Lex GP-1 Trust
Name: T. Wilson Eglin
Title: President
EXHIBIT 1
DUKE LIMITED PARTNER
SUPPLEMENT
As a result of the contribution of
that certain property known as BMW Financial Services Building,
located at 5500 Britton Parkway, Hilliard, Ohio 43026 (the
“BMW Property”), on December 20, 2006 (the
“Contribution Date”), 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 33,954 Partnership Units
to the contributor signatory hereto (the “Duke Limited
Partner”). For purposes of applying the terms and conditions
of the Agreement, the Duke Limited Partner shall be a Partner of
the Partnership with the rights and obligations of an Additional
Limited Partner. To the extent that the terms of this Supplement
are different than the terms of the following sections of the
Agreement, the terms of this Supplement shall apply.
Notwithstanding Section 5.1.A of the
Agreement, the Duke Limited Partner shall be entitled to receive
distributions with respect to each Partnership Unit equal to the
cash dividend payable with respect to each REIT Share, determined
at the time of each quarterly distribution beginning with the first
regular quarterly dividend payable to common shareholders of record
of LXP after the Contribution Date.
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 Duke Limited
Partner. Pursuant to the General Partner’s authority in
Section 14.1.B(3), Partnership taxable income shall be specially
allocated to the Duke Limited Partner in an amount equal to, but
not in excess of, all cash distributions to the Duke Limited
Partner; provided, however, that the Duke 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 Duke Limited Partner pursuant to Sections 2.B and
2.D of Exhibit C, in the same priority as Nonrecourse Liabilities
are allocated to the Warren Limited Partners, the Phoenix Limited
Partners, the Scannell Entities and any subsequent Additional
Limited Partners that are admitted to the Partnership. During the
period of time that the Duke Limited Partner is a Partner of the
Partnership and the guarantor of the Loan (as defined in the
Agreement for Contribution of Property, dated as of December 12,
2006, between the Duke Limited Partner and the Partnership),
pursuant to the Contributor Guaranty, dated December 20, 2006,
between the Duke Limited Partner and Bank of America, N.A., its
successors and assigns (the “Contributor Guaranty”),
such Loan shall be solely allocated to the Duke Limited Partner
under Code Section 752 and the Regulations thereto, except as
otherwise required by applicable law. Any payment made by the Duke
Limited Partner under the Contributor Guaranty shall not be treated
as a capital contribution by the Duke Limited Partner to
Partnership and shall not give rise to, and the Duke Limited
Partner expressly waives, any right of subrogation and any right of
indemnification from any partner of the Partners
