Exhibit 2
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[Form of]
Agreement Amending Partnership Admission Agreement
This Agreement is dated as of the 10th day of December, 1996 (this
"Agreement"), by and among New England Investment Companies, L.P., a Delaware
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limited partnership ("Buyer"), Xxxxxxx, Xxxxxxx & Waltch, L.P., a Delaware
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limited partnership ("Seller"), Seller's general partner, AEW Holdings, L.P., a
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Delaware limited partnership ("Seller Holdings"), Seller Holdings' general
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partner, Xxxxxxx, Xxxxxxx & Waltch, Inc., a Massachusetts corporation, AEW
Investment Company, Inc., a Massachusetts corporation and the Principals listed
on the signature page hereto (the "Principals"), and amends that certain
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Partnership Admission Agreement (the "PAA") dated as of the 15th day of October,
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1996 by and among the same parties hereto. Capitalized terms used herein and
not defined herein are used with the meanings given them in the PAA.
WHEREAS, the parties to the PAA have determined that the Closing will
occur on December 10, 1996;
WHEREAS, the parties desire to make certain amendments to the PAA in
order to memorialize additional agreements reached by the parties after the date
of the PAA;
NOW, THEREFORE, in consideration of and premised upon the various
representations, warranties, covenants and other agreements and undertakings of
Buyer, the Selling Entities and the Principals contained in this Agreement and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Buyer, the Selling Entities and the Principals agree as
follows:
1. Arrangements Regarding NEIA. Section 6.12 of the PAA is hereby
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amended to read in its entirety as follows:
"6.12 NEW ENGLAND INVESTMENT ASSOCIATES. On or before January 31,
1997, Buyer shall cause the business of NEIA to be transferred out of
Xxxxxx to any other entity controlled by Buyer, by transfer of assets,
stock, distribution, sale or otherwise as determined in the sole
discretion of Buyer. Buyer shall indemnify and hold harmless NCLP
against any and claims for any liability of CREA or Xxxxxx arising
from CREA's ownership of or otherwise relating to NEIA."
2. Xxxxxx Distribution.
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a. There shall be added to the "DEFINITIONS" Article of the PAA in
appropriate alphabetical order the following definition:
"'Xxxxxx Excluded Assets' means, as of the Closing Date, cash and
other current assets in excess of the total of (i) the Xxxxxx Working
Capital Requirement of $1.75 million, (ii) Buyer Restructuring Costs,
(iii) Buyer's share of the funding of the Restructuring Reserve and
(iv) prepayments for obligations to be performed by Xxxxxx and the
Xxxxxx Subsidiaries on or after the Closing Date, all determined based
on the Xxxxxx Pro Forma Closing Balance Sheet."
b. There shall be added to the PAA a new Section 6.15 immediately
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following Section 6.14, which new Section shall read in its entirety as follows:
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"6.15. XXXXXX EXCLUDED ASSETS. The parties hereto agree that on
or before January 31, 1997, an amount equal to the Xxxxxx Excluded
Assets shall be paid by Xxxxxx to NEIC in the form of a dividend
and/or return of capital."
c. The definition of Xxxxxx Working Capital Requirement contained in
the "DEFINITIONS" Article of the PAA shall be amended by replacing the amount
$1.5 million in the first line of such definition with the amount "$1.75
million."
3. Adjustments Related to the Foregoing Paragraphs 1 and 2. There
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shall be added to the PAA a new Section 6.16 immediately following new Section
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6.15, which new Section 6.16 shall read in its entirety as follows:
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"6.16. ADJUSTMENTS FOR POST-CLOSING ACTIONS. In calculating
Operating Expenses, NCLP Qualifying Revenue, Partnership Revenues,
Bonus Pool, Margin Share Payments and Contingent Payments, the parties
hereto agree to make such adjustments as are necessary to reflect such
amounts as they would have been had the transfer of NEIA described in
Section 6.12 and the dividend of Xxxxxx Excluded Assets described in
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Section 6.15 each occurred prior to the Closing. The parties hereto
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further agree that they will make such amendments to any Related
Agreements or enter into such additional agreements as may be
necessary or convenient to effect any adjustments referred to in the
previous sentence or to effect the intent and purpose of each of
Sections 6.12 and 6.15."
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4. Operating Expenses. There shall be added to the end of the
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definition of Operating Expenses contained in the "DEFINITIONS" Article of the
PAA the following sentence:
"Notwithstanding any other provision of this definition of Operating
Expenses, Operating Expenses shall not include (x) any amount
representing incentive fees or carried interests allocated to
employees of NCLP as provided by Section 6.10(l) or (y) any amount
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representing incentive fees with respect to Partners I, Partners II,
NELO, Coptel or the Warner Center that are allocated to employees of
NCLP; provided,
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however, that such fees shall be included in Operating Expenses if and
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to the extent that such fees are included in NCLP Qualifying Revenue."
5. International. Section 6.10(k) shall be amended to read in its
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entirety as follows:
"(k) HARBOR HOSPITALITY; INTERNATIONAL. Upon the realization of any
portion of its investment in Harbor Hospitality, NCLP shall pay to
Seller or its designee any amounts received by NCLP; provided,
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however, that such amounts shall not exceed Seller's original capital
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investment of approximately $328,000. NCLP and Seller agree that NCLP
shall hold the following interests in International Co.: (A) solely as
nominee for Seller, a right to receive a Preferred Return and its
Initial Capital Contribution and (B) for its own account, a 25%
Interest, all as defined in and in accordance with International Co.'s
limited liability company agreement."
6. Xxxxxx Incentive Fees. The third sentence of Section 10.2(b) of
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the PAA (Employee Benefits and Other Matters) shall be amended to read in its
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entirety as follows:
"Other than allocations of incentive fees to individual employees
to the extent permitted hereby and pursuant to such bonus plans as are
set forth on Schedule 10.2, bonus and incentive plans at NCLP shall
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consist solely of the NCLP Bonus Plan and Margin Share Payments."
Schedule 10.2 is attached hereto.
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7. Purchase Price Allocation. There shall be added to the
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Partnership Admission Agreement a new Section 1.2(d) immediately following
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Section 1.2(c) reading in its entirety as follows:
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"(d) ALLOCATION OF PURCHASE PRICE. The Purchase Price shall be
allocated among the Assets of the Selling Entities consistent with the
statement of allocation of the Purchase Price (plus assumed
liabilities) set forth as Schedule 1.2(d)."
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Schedule 1.2(d) is attached hereto.
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8. Miscellaneous.
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a. All references in the PAA to AEW Investment Company, Inc., AEW
Hotel Investment Corporation, AEW II Corporation, and NCGP shall be amended to
reflect that each such corporation is a Massachusetts corporation.
b. All references in the PAA to Xxxxxx Public Partners Holdings,
L.P., CREA Limited Partnership, and Xxxxxx Management Advisers, L.P. are amended
to read "Xxxxxx Public Partnership Holdings, L.P.," "CREA, Limited Partnership,"
and "Xxxxxx Management and Advisors, L.P."
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IN WITNESS WHEREOF, the parties have duly executed this Agreement, all
as of the date first written above.
XXXXXXX, XXXXXXX & WALTCH, L.P.
By: AEW HOLDINGS, L.P.,
its general partner
By: XXXXXXX, XXXXXXX & WALTCH, INC.,
its general partner
By:_________________________________
Title: Vice President
AEW HOLDINGS, L.P.,
By: XXXXXXX, XXXXXXX & WALTCH, INC.,
its general partner
By:_________________________________
Title: Vice President
XXXXXXX, XXXXXXX & WALTCH, INC.
By:_____________________________________
Title: Vice President
AEW INVESTMENT COMPANY, INC.
By:_____________________________________
Title: Vice President
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PRINCIPALS
______________________________________
Xxxxx X. Xxxxxxx
______________________________________
Xxxxxx X. Xxxxxxx
______________________________________
Xxxxxx X. Xxxxxx
NEW ENGLAND INVESTMENT COMPANIES, L.P.
By: NEW ENGLAND INVESTMENT COMPANIES,
INC., its general partner
By:_____________________________________
Title: President and Chief Executive
Officer
AEW CAPITAL MANAGEMENT, L.P.
By: AEW Capital Management, Inc.,
its general partner
By:_____________________________________
Title: President
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List of Omitted Schedules
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Schedule 1.2(d) Allocation of Purchase Price
Schedule 10.2 Bonus Plans to be Continued at NCLP
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