Exhibit 10.3
Execution Copy
FOURTH AMENDMENT TO
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF
NET 3 ACQUISITION L.P.
This FOURTH AMENDMENT TO AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF NET 3 ACQUISITION L.P. (this "Amendment") is made and
effective as of December 8, 2004, 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 that
certain First Amendment dated effective as of November 28, 2001, that certain
Second Amendment dated effective as of June 19, 2003, and that certain Third
Amendment dated effective as of June 30, 2003 (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. Pursuant to that certain Underwriting Agreement, dated as of
December 2, 2004, by and among Bear, Stearns & Co. Inc. (the "Underwriter "), on
the one hand, and LXP and the Operating Partnerships, on the other, and as of
the date hereof, LXP has completed the offer and sale (the "Offering") to the
Underwriter of 2,700,000 preferred shares of beneficial interest, classified as
6.50% Series C Cumulative Convertible Preferred Stock, par value $0.0001 per
share, of LXP ("Preferred Shares"), pursuant to a prospectus supplement dated
December 3, 2004 and the accompanying base prospectus dated October 22, 2003.
D. The Preferred Shares carry a (i) cumulative preferred
dividend, (ii) liquidation preference and (iii) conversion right.
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 C 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 369,477 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]
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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
By: /s/ T. Wilson Eglin
-----------------------------
T. Wilson Eglin
President
EXHIBIT A
PARTNERS
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Number Of Number Of
Number Of Special Limited Preferred OP Capital
Name And Address Common Units Partner Units Units Contribution
- -------------------------------------------------------------------------------------------------------------
General Partner:
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Lex GP-1 Trust. 44,858 $643,500.90
Initial Limited Partner:
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Lex LP-1 Trust 4,396,084 $63,706,502.16
Special Limited Partner:
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The LCP Group, L.P. 44,858 $649,992.42
Series B Preferred Limited
- --------------------------
Partner:
--------
Lex LP-1 Trust 486,201 $12,155,025
Series C Preferred Limited
- --------------------------
Partner:
--------
Lex LP-1 Trust 369,477 $17,988,911.44
--------------- ---------------- ----------------- ------------------
4,440,942 44,858 855,678 $95,143,931.92
=============== ================ ================= ==================
ANNEX I
CERTIFICATE OF DESIGNATION
OF
SERIES C PREFERRED
OPERATING PARTNERSHIP UNITS
OR LIMITED PARTNERSHIP INTERESTS
OF
NET 3 ACQUISITION L.P.
-------------------------------------------
Series C Preferred Units
------------------------
A series of 424,215 operating units of Preferred Limited Partnership
Interests of NET 3 ACQUISITION L.P., a Delaware limited partnership (the
"Partnership"), shall be created and be designated "Series C Preferred Units"
having the rights and preferences set forth herein.
WHEREAS, Lexington Corporate Properties Trust, a Maryland statutory real
estate investment trust ("LXP"), is the sole beneficial owner of Lex GP-1 Trust,
a Delaware statutory trust and the sole general partner of the Partnership (the
"General Partner");
WHEREAS, pursuant to that certain Underwriting Agreement, dated as of
December 2, 2004, by and among Bear, Stearns & Co. Inc. (the "Underwriter "), on
the one hand, and LXP, the Partnership, Lepercq Corporate Income Fund L.P. and
Lepercq Corporate Income Fund II L.P., on the other, and as of the date hereof,
LXP has (i) completed the offer and sale (the "Offering") to the Underwriter of
2,700,000 preferred shares of beneficial interest, classified as 6.50% Series C
Cumulative Convertible Preferred Stock, par value $0.0001 per share, of LXP
("Preferred Shares"), and (ii) granted the Underwriter a 30-day option to
purchase an additional 400,000 Preferred Shares, both pursuant to a prospectus
supplement dated December 3, 2004 and the accompanying base prospectus dated
October 22, 2003;
WHEREAS, the Preferred Shares carry a cumulative preferred dividend,
liquidation preference and conversion right further described in the Articles
Supplementary of LXP, dated as of December 8, 2004 (the "Articles
Supplementary");
WHEREAS, pursuant to Section 4.2 of the Amended and Restated Agreement
of Limited Partnership of the Partnership, dated as of November 28, 2001, as
amended (the "Partnership Agreement"), LXP has contributed a portion of the net
proceeds of the Offering to the Partnership in exchange for Series C Preferred
Units; and
WHEREAS, as required by the Partnership Agreement, the Series C
Preferred 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;
FIRST: Pursuant to the authority expressly vested in the General Partner
of the Partnership by Section 4.2 of the Partnership Agreement, and in
accordance with Section 17-302
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of the Delaware Revised Uniform Limited Partnership Act, the General Partner has
adopted resolutions designating the Series C Preferred Units and setting forth
the terms of the Series C Preferred Units, including preferences, conversion or
other rights, voting powers, restrictions, limitations as to distributions,
qualifications, or terms or conditions of redemption and the price.
SECOND: The terms of the Series C Preferred Units as set by the General
Partner, including preferences, conversion or other rights, voting powers,
restrictions, limitations as to distributions, qualifications, or terms or
conditions of redemption, are as follows:
Section 1. Number of Units and Designation.
The Series C Preferred Units shall be a series of preferred Partnership
Units designated as "Series C Preferred Units", and the number of units
constituting such series shall be 424,215.
Section 2. Definitions.
"Articles Supplementary" shall have the meaning set forth in the
Recitals hereto.
"Business Day" shall mean any day other than a Saturday, Sunday or a day
on which state or federally chartered banking institutions in New York, New York
are not required to be open.
"Cash Settlement Average Period" shall have the meaning set forth in the
Articles Supplementary.
"Closing Sale Price" shall have the meaning set forth in the Articles
Supplementary.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Common Partnership Unit" shall mean a Partnership Unit that receives no
preferential treatment.
"Common Stock" shall mean the common shares of beneficial interest, par
value $0.0001 per share, of LXP.
"Company Conversion Option" shall have the meaning set forth in the
Articles Supplementary.
"Company Conversion Option Date" shall have the meaning set forth in the
Articles Supplementary.
"Conversion Amount" shall equal (x) the fraction with (i) a numerator
consisting of the number of Series C Preferred Units outstanding prior to the
applicable conversion or repurchase, and (ii) a denominator consisting of the
number of Preferred Shares outstanding prior to such conversion or repurchase,
multiplied by (y) the number of Preferred Shares to be converted or repurchased.
"Conversion Date" shall have the meaning set forth in the Articles
Supplementary.
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"Conversion Notice" shall have the meaning set forth in the Articles
Supplementary.
"Conversion Price" shall mean, as of any day, a per Partnership Unit
amount equal to the quotient of the liquidation preference amount of a share of
Series C Preferred Units on that day divided by the Conversion Rate (as adjusted
pursuant to the Articles Supplementary) on such day.
"Conversion Rate" shall have the meaning set forth in the Articles
Supplementary.
"Conversion Right" shall have the meaning set forth in the Articles
Supplementary.
"Conversion Value" shall mean an amount equal to the product of the
applicable Conversion Rate (as adjusted pursuant to the Articles Supplementary)
multiplied by the arithmetic average of the Closing Sale Prices of the Common
Stock during the Cash Settlement Average Period.
"Converted Series C Preferred Units" shall have the meaning set forth in
Section 5(a)(1).
"Distribution Payment Date" shall mean, with respect to each
Distribution Period, the fifteenth day of February, May, August and November of
each year, commencing on February 15, 2005.
"Distribution Period" shall mean the respective periods commencing on
and including January 1, April 1, July 1 and October 1 of each year and ending
on and including the day preceding the first day of the next succeeding
Distribution Period (other than the initial Distribution Period, which shall
commence on the Original Issue Date and end on and include December 31, 2004).
"Distribution Record Date" shall mean the date designated by the Board
of Trustees of the LXP as the Dividend Record Date (as defined in the Articles
Supplementary) with respect to the Preferred Shares.
"Event" shall have the meaning set forth in Section 9(b) hereof.
"General Partner" shall have the meaning set forth in the Recitals
hereto.
"LXP" shall have the meaning set forth in the Recitals hereto.
"Offering" shall have the meaning set forth in the Recitals hereto.
"Original Issue Date" shall mean December 8, 2004.
"Partnership" shall have the meaning set forth in the preamble hereto.
"Partnership Agreement" shall have the meaning set forth in the Recitals
hereto.
"Partnership Unit" shall have the meaning set forth in Article FIRST of
the Partnership Agreement.
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"Preferred Shares" shall have the meaning set forth in Recitals hereof.
"Public Acquirer Common Stock" shall have the meaning set forth in the
Articles Supplementary.
"Repurchase Date" shall have the meaning set forth in Section 6(a)
hereof.
"Repurchase Price" shall have the meaning set forth in Section 6(a)
hereof.
"Repurchase Right" shall have the meaning set forth in Section 6(a)
hereof.
"Repurchased Series C Preferred Units" shall have the meaning set forth
in Section 6(a) hereof.
"Series C Preferred Units" shall have the meaning set forth in preamble
hereof.
"Series B Preferred Units" shall mean the Series B Preferred Units of
the Partnership.
"Trading Day" shall have the meaning set forth in the Articles
Supplementary.
"Underwriter" shall have the meaning set forth in the Recitals hereto.
Section 3. Distributions.
(a) Subject to the preferential rights of the holders of any
class or series of Partnership Units ranking senior to the Series C Preferred
Units as to distributions, the holders of the Series C Preferred Units shall be
entitled to receive, when, as and if declared by the General Partner, out of
funds legally available for the payment of distributions, cumulative cash
distributions at the rate of 6.50% per annum of the $50.00 liquidation
preference per Series C Preferred Unit (equivalent to the annual rate of $3.25
per Series C Preferred Unit). Such distributions shall accrue and be cumulative
from and including the Original Issue Date and shall be payable quarterly in
arrears on each Distribution Payment Date, commencing February 15, 2005 in
respect of the quarterly distribution periods ending on December 31, March 31,
June 30, and September 30, respectively; provided, however, that if any
Distribution Payment Date is not a Business Day, then the distribution which
would otherwise have been payable on such Distribution Payment Date may be paid
on the next succeeding Business Day with the same force and effect as if paid on
such Distribution Payment Date, and no interest or additional distributions or
other sums shall accrue on the amount so payable from such Distribution Payment
Date to such next succeeding Business Day. The distribution payable on the
Series C Preferred Units on February 15, 2005 shall be a pro rata distribution
from the Original Issue Date to December 31, 2004 in the amount of $0.2167 per
Series C Preferred Unit. The amount of any distribution payable on the Series C
Preferred Units for each full Distribution Period shall be computed by dividing
the annual distribution by four (4). The amount of any distribution payable on
the Series C Preferred Units for any partial Distribution Period other than the
initial Distribution Period shall be prorated and computed on the basis of a
360-day year consisting of twelve 30-day months. Distributions will be payable
to holders of record as they appear in the Partnership's records at the close of
business on the applicable Distribution Record Date.
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(b) No distributions on the Series C Preferred Units shall be
declared by the General Partner or paid or set apart for payment by the
Partnership at such time as the terms and provisions of any agreement of the
Partnership, including any agreement relating to its indebtedness, prohibits
such declaration, payment or setting apart for payment or provides that such
declaration, payment or setting apart for payment would constitute a breach
thereof or a default thereunder, or if such declaration, or payment or setting
apart for payment shall be restricted or prohibited by law.
(c) Notwithstanding anything contained herein to the contrary,
distributions on the Series C Preferred Units shall accrue whether or not the
Partnership has earnings, whether or not there are funds legally available for
the payment of such distributions, and whether or not such distributions are
declared.
(d) Except as provided in Section 3(e) below, unless full
cumulative distributions on the Series C Preferred Units for all past
distribution periods and the then current distribution period shall have been or
contemporaneously are declared and paid in cash or declared and a sum sufficient
for the payment thereof in cash is set apart for such payment, (i) no
distributions, other than distributions in Partnership Units ranking junior to
the Series C Preferred Units as to distributions and upon liquidation, shall be
declared or paid or set apart for payment and no other distributions or
distribution of cash or other property may be declared or made, directly or
indirectly, on or with respect to any other class or series of Partnership Units
ranking, as to distributions, on a parity with or junior to the Series C
Preferred Units (other than pro rata distributions on Series B Preferred Units
or other preferred Partnership Units ranking on parity as to distributions with
the Series C Preferred Units) for any period, nor (ii) shall any other class or
series of Partnership Units ranking, as to distributions or upon liquidation, on
a parity with or junior to the Series C Preferred Units, including without
limitation the Series B Preferred Units, be redeemed, purchased or otherwise
acquired for any consideration (or any moneys be paid to or made available for a
sinking fund for the redemption of any such Partnership Units) by the
Partnership (except by conversion into or exchange for other classes or series
of Partnership Units ranking junior to the Series C Preferred Units as to
distributions and upon liquidation).
(e) When distributions are not paid in full (or a sum sufficient
for such full payment is not so set apart) upon the Series C Preferred Units and
the Partnership Units ranking, as to distributions, on a parity with the Series
C Preferred Units, including, without limitation the Series B Preferred Units,
all distributions declared upon the Series C Preferred Units and each such other
class or series of Partnership Units ranking, as to distributions, on a parity
with the Series C Preferred Units including, without limitation the Series B
Preferred Units, shall be declared pro rata so that the amount of distributions
declared per Series C Preferred Unit and such other class or series of
Partnership Units shall in all cases bear to each other the same ratio that
accrued distributions per Series C Preferred Unit and such other class or series
of Partnership Units (which shall not include any accrual in respect of unpaid
distributions on such other class or series of Partnership Units for prior
distribution periods if such other class or series of Partnership Units does not
have a cumulative distribution) bear to each other. No interest, or sum of money
in lieu of interest, shall be payable in respect of any distribution payment or
payments on the Series C Preferred Units which may be in arrears.
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(f) Holders of Series C Preferred Units shall not be entitled to
any distribution, whether payable in cash, property or Partnership Units, in
excess of full cumulative distributions on the Series C Preferred Units as
provided herein. Any distribution payment made on the Series C Preferred Units
shall first be credited against the earliest accrued but unpaid distributions
due with respect to such units which remains payable. Accrued but unpaid
distributions on the Series C Preferred Units will accumulate as of the
Distribution Payment Date on which they first become payable.
Section 4. Liquidation Preference.
Upon any voluntary or involuntary liquidation, dissolution or winding-up
of the affairs of the Partnership, before any distribution or payment shall be
made to holders of any other class or series of Partnership Units of the
Partnership ranking, as to liquidation rights, junior to the Series C Preferred
Units, the holders of Series C Preferred Units shall be entitled to be paid out
of the assets of the Partnership legally available for distribution to its
partners a liquidation preference of $50.00 per unit, plus an amount equal to
any accrued and unpaid distributions to the date of payment (whether or not
declared). In the event that, upon such voluntary or involuntary liquidation,
dissolution or winding-up, the available assets of the Partnership are
insufficient to pay the amount of the liquidating distributions on all
outstanding Series C Preferred Units and the corresponding amounts payable on
all other classes or series of Partnership Units of the Partnership ranking, as
to liquidation rights, on a parity with the Series C Preferred Units, including,
without limitation, the Series B Preferred Units, in the distribution of assets,
then the holders of the Series C Preferred Units and each such other class or
series of Partnership Units ranking, as to liquidation rights, on a parity with
the Series C Preferred Units, including, without limitation, shall share ratably
in any such distribution of assets in proportion to the full liquidating
distributions to which they would otherwise be respectively entitled. Written
notice of any such liquidation, dissolution or winding up of the Partnership,
stating the payment date or dates when, and the place or places where, the
amounts distributable in such circumstances shall be payable, shall be given by
first class mail, postage pre-paid, not less than thirty (30) nor more than
sixty (60) days prior to the payment date stated therein, to each record holder
of Series C Preferred Units at the respective addresses of such holders as the
same shall appear on Schedule I hereto. After payment of the full amount of the
liquidating distributions to which they are entitled, the holders of Series C
Preferred Units will have no right or claim to any of the remaining assets of
the Partnership. The consolidation or merger of the Partnership with or into any
other partnership, corporation or entity, or the sale, lease, transfer or
conveyance of all or substantially all of the property or business of the
Partnership, shall not be deemed to constitute a liquidation, dissolution or
winding-up of the affairs of the Partnership.
Section 5. Conversion.
(a) General.
(1) Subject to the provisions of Section 5(b) below, on the
date any Preferred Shares are converted, an amount of Series C Preferred Units
equal to the Conversion Amount (the "Converted Series C Preferred Units") shall
automatically convert into a number of Common Partnership Units equal to the
number of shares of Common Stock issued by LXP (or
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shares of Public Acquirer Common Stock, if applicable) with respect to the
Preferred Shares related to the Converted Series C Preferred Units.
(2) In connection with the conversion of any Series C
Preferred Units, no fractional Common Partnership Units will be issued, but the
Partnership shall pay a cash adjustment in respect of any fractional interest in
an amount equal to the fractional interest multiplied by the Closing Sale Price
on the Trading Day immediately prior to the corresponding Conversion Date or the
Company Conversion Option Date, as applicable. If more than one Series C
Preferred Unit will be surrendered for conversion by the same holder at the same
time, the number of full Common Partnership Units will be computed on the basis
of the total number of Series C Preferred Units so surrendered.
(3) A holder of Series C Preferred Units is not entitled to
any rights of a holder of Common Partnership Units until the Series C Preferred
Units held are converted into Common Partnership Units, and only to the extent
the Series C Preferred Units are deemed to have been converted to Common
Partnership Units in accordance with this Section 5.
(4) Each conversion of Series C Preferred Units shall be
deemed to have been made on the corresponding Conversion Date or Company
Conversion Option Date, as applicable, so that the rights of the holder thereof
as to the Series C Preferred Units being converted as a result, will cease
except for the right to receive the Conversion Value per each converted Series C
Preferred Unit, and, if applicable, the person entitled to receive Common
Partnership Units will be treated for all purposes as having become the record
holder of those Common Partnership Units at that time.
(b) Settlement Upon Conversion. The Partnership shall deliver
the Conversion Value per each converted Series C Preferred Unit, in (i) Common
Partnership Units, cash or a combination of cash and Common Partnership Units,
in accordance with LXP's election with respect to the Preferred Shares being
converted.
(c) Payment of Distributions.
(1) Conversion Right.
(i) If a Series C Preferred Unit is converted as a result of
a Conversion Right, upon conversion, that Series C Preferred Unit shall cease to
cumulate distributions as of the end of the day immediately preceding the
Conversion Date and the holder will not receive any cash payment representing
accrued and unpaid distributions of the Series C Preferred Unit, except in those
limited circumstances discussed in this Section 5(c). Except as provided herein,
the Partnership shall make no payment for accrued and unpaid distributions,
whether or not in arrears, on a Series C Preferred Unit converted pursuant to a
Conversion Right, or for distributions on Common Partnership Units issued upon
such conversion.
(ii) If the related Conversion Notice is received by LXP
before the close of business on a Distribution Record Date, the holder shall not
be entitled to receive
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any portion of the distribution payable on such converted Series C Preferred
Units on the corresponding Distribution Payment Date.
(iii) If the related Conversion Notice is received by LXP
after the Distribution Record Date but prior to the corresponding Distribution
Payment Date, the holder on the Distribution Record Date shall receive on that
Distribution Payment Date accrued distributions on those Series C Preferred
Units, notwithstanding the conversion of those Series C Preferred Units prior to
that Distribution Payment Date, because the holder shall have been the holder of
record on the corresponding Distribution Record Date. However, upon conversion,
the holder shall pay an amount equal to the distribution that has accrued and
that will be paid on the related Distribution Payment Date.
(iv) A holder of Series C Preferred Units on a Distribution
Record Date whose Series C Preferred Units are converted into Common Partnership
Units on or after the corresponding Distribution Payment Date shall be entitled
to receive the distribution payable on such Series C Preferred Units on such
Distribution Payment Date, and such holder need not include payment of the
amount of such distribution upon conversion.
(v) If the related Conversion Notice is received by LXP on
or before the close of business on a Distribution Record Date or following such
Distribution Record Date but before the Distribution Payment Date therefore, and
the settlement date for any Common Partnership Units to be issued upon such
conversion is after the close of business on the record date for the payment of
distributions for the corresponding period on such Common Partnership Units,
such holder shall be entitled to receive such Common Partnership Unit
distributions upon the next payment date of distributions on the Common
Partnership Units as if it were the holder of such Common Partnership Units on
such record date.
(2) Company Conversion Option.
(i) In the event a conversion occurs as a result of a
Company Conversion Option, whether the Company Conversion Option Date is prior
to, on or after the Distribution Record Date for the current period, all unpaid
distributions which are in arrears as of the Company Conversion Option Date
shall be payable to the holder of the converted Series C Preferred Units.
(ii) In the event the Company Conversion Option occurs and
the Company Conversion Option Date is a date that is prior to the close of
business on any Distribution Record Date, the holder shall not be entitled to
receive any portion of the distribution payable for such period on such
converted Series C Preferred Units on the corresponding Distribution Payment
Date.
(iii) In the event the Company Conversion Option occurs and
the Company Conversion Option Date is a date that is on, or after the close of
business on, any Distribution Record Date and prior to the close of business on
the corresponding Distribution
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Payment Date, all distributions, including accrued and unpaid distributions,
whether or not in arrears, with respect to the Series C Preferred Units called
for conversion on such date, shall be payable on such Distribution Payment Date
to the record holder of such Series C Preferred Units on such record date.
(d) Maturity; Sinking Fund. The Series C Preferred Units shall
have no stated maturity and shall not be subject to any sinking fund or
mandatory redemption.
(e) Effect of Conversion. All Series C Preferred Units converted
pursuant to this Section 5, repurchased pursuant to Section 6, or otherwise
converted or repurchased shall be authorized but unissued Series C Preferred
Units until reclassified into another class or series of Common Partnership
Units.
Section 6. Purchase of Series C Preferred Units Upon a Fundamental
Change.
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(a) In the event a holder of Preferred Shares requires LXP to
repurchase (the "Repurchase Right") for cash all or any part of such holder's
Preferred Shares, the Partnership shall repurchase, on the date LXP repurchases
such Preferred Shares (the "Repurchase Date"), an amount of Series C Preferred
Units equal to the Conversion Amount (the "Repurchased Series C Preferred
Units") at a per Series C Preferred Unit repurchase price equal to the per
Preferred Share repurchase price paid by LXP with respect to the Preferred
Shares related to the Repurchased Series C Preferred Units (the "Repurchase
Price").
(b) If the Partnership holds cash sufficient to pay the
Repurchase Price of the Series C Preferred Units on the Trading Day following
the Repurchase Date, then:
(1) the Series C Preferred Units will cease to be
outstanding and distributions (including additional distributions, if any) will
cease to accrue; and
(2) all other rights of the holder will terminate (other
than the right to receive the Repurchase Price upon transfer of the Series C
Preferred Units).
Section 7. Voting Rights.
(a) Holders of the Series C Preferred Units shall not have any
voting rights, except as provided by applicable law.
(b) In any matter in which the Series C Preferred Units may vote
(as expressly provided herein or as may be required by law), each Series C
Preferred Unit shall be entitled to one vote per $25.00 of liquidation
preference.
Section 8. Redemption.
Except as otherwise set forth herein, the Series C Preferred Units shall
not be redeemable by the Partnership.
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Section 9. Ranking.
(a) In respect of rights to the payment of distributions and the
distribution of assets in the event of any liquidation, dissolution or winding
up of the affairs of the Partnership, the Series C Preferred Units shall rank
(i) senior to any class or series of Partnership Units of the Partnership other
than any class or series referred to in clauses (ii) and (iii) of this sentence,
(ii) on a parity with any class or series of Partnership Units of the
Partnership the terms of which specifically provide that such class or series of
Partnership Units ranks on a parity with the Series C Preferred Units as to the
payment of distributions and the distribution of assets in the event of any
liquidation, dissolution or winding up of the Partnership, including, without
limitation the Series B Preferred Units, and (iii) junior to any class or series
of Partnership Units of the Partnership ranking senior to the Series C Preferred
Units as to the payment of distributions and the distribution of assets in the
event of any liquidation, dissolution or winding up of the Partnership. For
avoidance of doubt, any debt of the Partnership which is convertible into or
exchangeable for Partnership Units of the Partnership shall not constitute a
class or series of Partnership Units of the Partnership.
(b) Unless (x) no Series C Preferred Units remain outstanding or
(y) the requisite holders of the Preferred Shares have approved similar actions
with respect to the Preferred Shares in accordance with the Articles
Supplementary (in which event the Partnership may take similar action with
respect to the Series C Preferred Units), the Partnership shall not: (i)
authorize or create, or increase the authorized or issued amount of, any class
or series of Partnership Units ranking senior to the Series C Preferred Units
with respect to payment of dividends or the distribution of assets upon
liquidation, dissolution or winding-up of the affairs of the Partnership or
reclassify any authorized shares of Partnership Units into such Partnership
Units, or create, authorize or issue any obligation or security convertible into
or evidencing the right to purchase any such Partnership Units; or (ii) amend,
alter or repeal the provisions of the Partnership Agreement or this Certificate
of Designation, whether by merger, consolidation, transfer or conveyance of all
or substantially all of its assets or otherwise (an "Event"), so as to
materially and adversely affect any right, preference, or privilege of the
Series C Preferred Units or the holders thereof; provided however, with respect
to the occurrence of any of the Events set forth in (ii) above, so long as the
Series C Preferred Units remains outstanding with the terms thereof materially
unchanged, taking into account that, upon the occurrence of an Event, the
Partnership may not be the surviving entity, the occurrence of such Event shall
not be deemed to materially and adversely affect such rights, preferences,
privileges of holders of Series C Preferred Units. The provisions of this
Section 9(b) shall not, however, prohibit the Partnership from taking the
following actions: (A) any increase, decrease or issuance from time to time of
any class or series of Partnership Units (including the Series C Preferred
Units), or (B) the creation or issuance from time to time of any additional
classes or series of Partnership Units, in each case referred to in clause (A)
or (B) above ranking on a parity with or junior to the Series C Preferred Units
with respect to the payment of dividends and the distribution of assets upon
liquidation, dissolution or winding up of the Partnership.
(c) Notwithstanding anything to the contrary in this Section 9,
nothing herein shall prevent the Partnership from taking such action as may be
necessary or advisable in its sole discretion so as to avoid being treated as an
association taxable as a corporation for federal tax
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purposes or so as to avoid adversely affecting (for as long as LXP deems
necessary) LXP's ability to qualify as a REIT for federal tax purposes.
Section 10. Exclusion of Other Rights.
The Series C Preferred Units shall not have any preferences, conversion
or other rights, voting powers, restrictions, limitations as to distributions,
qualifications, or terms or conditions of redemption other than expressly set
forth in the Partnership Agreement and this Certificate of Designation.
Section 11. Headings of Subdivisions.
The headings of the various subdivisions hereof are for convenience of
reference only and shall not affect the interpretation of any of the provisions
hereof.
Section 12. Severability of Provisions.
If any preferences, conversion or other rights, voting powers,
restrictions, limitations as to distributions, qualifications, or terms or
conditions of conversion of the Series C Preferred Units set forth in the
Partnership Agreement and this Certificate of Designation are invalid, unlawful
or incapable of being enforced by reason of any rule of law or public policy,
all other preferences or other rights, voting powers, restrictions, limitations
as to distributions, qualifications or terms or conditions of conversion of
Series C Preferred Units set forth in the Partnership Agreement which can be
given effect without the invalid, unlawful or unenforceable provision thereof
shall, nevertheless, remain in full force and effect and no preferences or other
rights, voting powers, restrictions, limitations as to distributions or other
qualifications or terms or conditions of conversion of the Series C Preferred
Units herein set forth shall be deemed dependent upon any other provision
thereof unless so expressed therein.
Section 13. No Preemptive Rights.
No holder of Series C Preferred Units shall be entitled to any
preemptive rights to subscribe for or acquire any Partnership Units of the
Partnership (whether now or hereafter authorized) or instruments of the
Partnership convertible into or carrying a right to subscribe to or acquire
Partnership Units of the Partnership.
NET 3 ACQUISITION L.P.
By: Lex GP-1 Trust, its General Partner
By:/s/ T. Wilson Eglin
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T. Wilson Eglin
President
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