Exhibit 3.18
EXECUTION COPY
SECOND AMENDMENT TO
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF
NET 3 ACQUISITION L.P.
This SECOND AMENDMENT TO AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF NET 3 ACQUISITION L.P. (this "Amendment") is made and
entered into effective as of June 19, 2003 by and among the entities and
individuals signatory hereto.
A. Net 3 Acquisition L.P., a Delaware limited
partnership (the "Partnership") is governed by that certain Amended and Restated
Agreement of Limited Partnership, dated effective as of November 28, 2001, as
amended by the First Amendment thereto (the "Agreement"). Unless otherwise
defined, all capitalized terms used herein shall have such meaning ascribed such
terms in the Agreement.
B. Lexington Corporate Properties Trust, a Maryland real
estate investment trust ("LXP") is the sole unitholder of each of (i) Lex GP-1
Trust, a Delaware statutory trust ("Lex GP") and (ii) Lex LP-1 Trust, a Delaware
statutory trust ("Lex LP"). Lex GP is the general partner of the Partnership,
Lepercq Corporate Income Fund L.P., a Delaware limited partnership, and Lepercq
Corporate Income Fund II L.P., a Delaware limited partnership (collectively, the
"Operating Partnerships"). Lex LP is the Initial Limited Partner of each of the
Operating Partnerships.
C. As of the date hereof, LXP has completed the offer
and sale (the "Offering") to the Underwriters (as defined in the Underwriting
Agreement, dated as of June 10, 2003, by and among Bear, Stearns & Co. Inc.,
A.G. Edwards & Sons, Inc., Raymond James, Friedman Billings Ramsey, Advest,
Inc., BB&T Capital Markets and Ferris, Baker Watts Incorporated, on the one
hand, and LXP and the Operating Partnerships, on the other) of 3,160,000
preferred shares of beneficial interest, classified as 8.05% Series B Cumulative
Redeemable Preferred Stock, par value $0.0001 per share, of LXP ("Preferred
Shares"), pursuant to a prospectus supplement dated June 10, 2003 and the
accompanying base prospectus dated April 10, 1998.
D. The Preferred Shares carry a cumulative preferred
dividend and liquidation preference further described in the Articles
Supplementary of LXP, dated as of June 17, 2003.
E. Pursuant to Section 4.2 of the Agreement, the
Partnership may issue additional partnership interests to LXP and its affiliates
in connection with the issuance of shares by LXP provided LXP makes a capital
contribution to the Partnership of the proceeds raised in connection with such
issuance.
F. LXP has agreed to contribute a portion of the
proceeds of the Offering to the Partnership in exchange for Series B Preferred
Operating Partnership Units ("Preferred OP Units") in the Partnership to be
issued to an affiliate of LXP, Lex LP.
G. As required by Section 4.2 of the Agreement, the
Preferred OP Units have designations, preferences and other rights such that the
economic interests are substantially similar to the designations, preferences
and other rights of the Preferred Shares, as further described and set forth in
the Certificate of Designation for the Preferred OP Units attached hereto as
Annex I (the "Certificate of Designation").
H. As of the date hereof, and pursuant to the terms of
the Agreement, the parties hereto desire to amend the Agreement to reflect the
issuance of 486,201 Preferred OP Units to Lex LP by amending and restating
Exhibit A to the Agreement and (ii) the admission of Lex LP as a Limited Partner
holding Preferred OP Units (a "Preferred Limited Partner").
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. Certificate of Designation; Preferred Limited
Partner. The Agreement is hereby amended to the extent necessary to reflect that
the rights, preferences and privileges of the Preferred OP Units and the
Preferred Limited Partner, shall be as set forth in the Certificate of
Designation which is hereby attached as Annex I to the Agreement and made a part
hereof. To the extent there is a conflict between the terms of the Certificate
of Designation and the terms of the Agreement, the terms of the Certificate of
Designation shall control.
2. Exhibit A. Exhibit A to the Agreement is deleted in
its entirety and replaced with Exhibit A hereto.
3. Miscellaneous. Except as amended hereby, the
Agreement shall remain unchanged and in full force and effect.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment on behalf of the Partnership in accordance with the provisions of
Section 14.1 of the Agreement as of the date first written above.
GENERAL PARTNER:
LEX GP-1 TRUST
By: /s/ T. Wilson Eglin
-------------------
Name: T. Wilson Eglin
Title: Vice President
EXHIBIT A
PARTNERS
Number Of Common Number Of Special Number Of Preferred
Name And Address Units Limited Partner Units OP Units Capital Contribution
- ---------------- ---------------- --------------------- ------------------- --------------------
General Partner:
Lex GP-1 Trust. 44,410 $ 643,500.90
c/o Lexington Corporate Properties Trust
355 Lexington Avenue
New York, New York 10017
Initial Limited Partner:
Lex LP-1 Trust 4,396,584 $63,706,502.16
c/o Lexington Corporate Properties Trust
355 Lexington Avenue
New York, New York 10017
Special Limited Partner:
The LCP Group, L.P. 44,858 $ 649,992.42
711 Westchester Avenue
White Plains, New York 10604
Preferred Limited Partner:
Lex LP-1 Trust 486,201 $ 12,155,025
c/o Lexington Corporate Properties Trust
355 Lexington Avenue
New York, New York 10017
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4,440,994 44,858 486,201 $77,155,020.48
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