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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.
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GENERAL PARTNER:
Lex GP-1 Trust
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Name: T. Wilson Eglin
Title: President
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 o
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