Exhibit 10.1
FOURTH AMENDMENT TO
FIFTH AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF
LEPERCQ CORPORATE INCOME FUND L.P.
This FOURTH AMENDMENT TO FIFTH AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF LEPERCQ CORPORATE INCOME FUND L.P. (this "Amendment") is
made and entered into on and effective as October 28, 2004, by Lex GP-1 Trust,
as general partner.
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 October June 30, 2003, and by Third Amendment thereto effective
as of December 31, 2003 (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, pursuant to the authority granted to the General
Partner in the Agreement, the General Partner amends the agreement as follows:
1. Exhibit A. Exhibit A of the Agreement is hereby amended by
adding the Montgomery Limited Partners Supplement attached as Exhibit 1 hereto
to the end of Exhibit A of the Agreement, for the purposes of admitting the
Montgomery Limited Partners as Partners of the Partnership with the rights and
obligations of Additional Limited Partners.
2. Miscellaneous. Except as amended hereby, the Agreement shall
remain unchanged and in full force and effect.
IN WITNESS WHEREOF, the General Partner has executed this
Amendment on behalf of the Partnership in accordance with the provisions of
Sections 4.2(A), 12.1, 12.2 and 14.1(B) of the Agreement as of the date first
written above.
GENERAL PARTNER:
LEX GP-1 TRUST
By /s/ Patrick Carroll
-----------------------------------
Name: Patrick Carroll
Title: Executive Vice President
Exhibit 1
---------
Montgomery Limited Partners Supplement
As a result of the contribution of the interests in Barnhech
Montgomery Limited Partnership ("Montgomery") on October 28, 2004, 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
limited partners of Montgomery (the "Montgomery Limited Partners") electing to
contribute all of their interests to the Partnership. Each Montgomery Limited
Partner shall receive the number of Partnership Units specified below. For
purposes of applying the terms and conditions of the Agreement, each Montgomery
Limited Partner shall be a Partner of the Partnership with the rights and
obligations of Additional Limited Partners.
Notwithstanding Section 5.1.A of the Agreement, each Montgomery
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 REIT Shares, determined at the time of each quarterly distribution beginning
with the distribution payable to shareholders of record of LXP in November,
2004.
Partnership taxable income shall be specially allocated to each
Montgomery Limited Partner in an amount equal to, but not in excess of, the cash
distributed to each such Montgomery Limited Partner; provided, however, that
each such Montgomery Limited Partner shall be allocated taxable income as
otherwise required in Exhibit B and C of the Partnership Agreement.
For purposes of Section 8.4 of the Partnership Agreement,
beginning on May 1, 2006, and on each August 1st, November 1st, February 1st,
and May 1st thereafter (each a "Notice Date"), each Montgomery Limited Partner
shall have the right (the "Montgomery Limited Partner Redemption Right") to
require the Partnership to redeem on a Specified Redemption Date the Partnership
Units held by such Montgomery Limited Partner for the Redemption Amount to be
delivered by the Partnership; provided, however, that each Montgomery 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 Montgomery Limited Partner Redemption Right shall be exercised
pursuant to a Notice of Redemption (substantially in the form of Exhibits D-1
through D-4) delivered to the General Partner and LXP on a Notice Date by the
Montgomery Limited Partner who is exercising its Montgomery Limited Partner
Redemption Right (the "Montgomery Redeeming Partner"). The Montgomery 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 REIT Shares issued in
connection with a redemption in such a manner as is required so that the REIT
Shares issued in
Exhibit 1-1
connection with such redemption are freely transferable. The Assignee of any
Montgomery Limited Partner may exercise the redemption rights of such Montgomery
Limited Partner, and such Montgomery 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 Montgomery Limited Partner, the Redemption Amount
shall be delivered by the Partnership directly to such Assignee and not to such
Montgomery Limited Partner.
The Partnership Units held by a Montgomery 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 Montgomery Limited Partner 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 Montgomery Limited Partners, LXP, the Partnership and
the General Partner shall treat the transaction between LXP and each Montgomery
Limited Partner as a sale of the Montgomery Redeeming Partner's Partnership
Units to LXP or the General Partner, as the case may be, for federal income tax
purposes. Each Montgomery Limited Partner agrees to execute such documents as
the Partnership may reasonably require in connection with the issuance of REIT
Shares upon exercise of its Redemption Right.
PARTNERS' CONTRIBUTIONS AND PARTNERSHIP INTERESTS
Capital Partnership Percentage Redemption
Name and Address of Partner Contribution(1) Units Interest Exercise Date
- -----------------------------------------------------------------------------------------------------
Montgomery Limited Partners 0.0035% May 1, 2006
- ---------------------------
Peter J. Kinnunen 0.15647520 1,974
Francois Letaconnoux 0.06128612 773
- --------
1 Units of Limited Partnership of Montgomery Contributed
Exhibit 1-2
Ellen C. Monk 0.21808731 2,751
Antony Monk Insurance Trust U/A/D 0.65393594 8,251
5/13/92, F/B/O Monk Children, Ellen
Monk, Trustee
Terrell R. Peterson Trust dtd. 4/5/90 0.15647520 1,974
E. Robert Roskind 0.23927666 3,019
Richard J. Rouse 0.17603460 2,221
Edward C. Whiting 0.23471280 2,961
Trust F/B/O Joanna Monk U/A 2/28/89, 0.04074875 514
Dennis Monk, Trustee
Trust F/B/O Jonathan Monk U/A 2/28/89, 0.04074875 514
Dennis Monk, Trustee
Trust F/B/O Samantha Monk 0.04074875 514
U/A 2/28/89, Dennis Monk, Trustee
Exhibit 1-3
The LCP Group, L.P. 1.74136992 21,972
Donald R. Tomlin, Jr. 0.50000000 6,309
Ileana Basil 2.49355200 31,463
Mary Blair Fawcett 1.00000000 12,618
Exhibit 1-4