EXHIBIT 10.1
AMENDMENT NUMBER 2 TO THE
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF
HEARTLAND PARTNERS, L.P.
This Amendment Number 2 ("Amendment") to the Amended and Restated
Agreement of Limited Partnership of Heartland Partners, L.P. dated as of June
27, 1990 (the "Partnership Agreement"), is entered into as of March 7, 2006, by
CMC/Heartland Partners Holdings, Inc., the General Partner of the Partnership.
WHEREAS, the Partnership's Class B Interest was held by a
wholly-owned subsidiary of Heartland Technology, Inc. ("HTI") and pledged to the
Partnership to secure outstanding loans from the Partnership to HTI that HTI
indicated it would be unable to repay;
WHEREAS, HTI filed for bankruptcy, and pursuant to the bankruptcy
plan confirmed by the court, the Class B Interest was returned to the
Partnership in satisfaction of the loans from the Company to HTI on November 14,
2005; and
WHEREAS, the General Partner desires to amend the Partnership
Agreement to reflect the fact that there are no Class B Interests outstanding
and the General Partner has the power to so amend the Partnership Agreement
without the consent or approval of any Record Holder pursuant to Section 16.01
of the Partnership Agreement.
NOW, THEREFORE, the Partnership Agreement is hereby amended,
effective as of the date hereof, as follows:
1. Defined Terms. Capitalized terms used herein and not otherwise
defined shall have the respective meanings ascribed to them in the Partnership
Agreement.
2. Definition of "Majority Vote." The definition of Majority Vote
shall be deleted and replaced in its entirety with the following:
"Majority Vote: The written approval of, or an affirmative vote in
accordance with Sections 16.11 and 16.12 by, holders of a majority of
the outstanding Class A Limited Partnership Interests."
2. Definition of "Outstanding Limited Partnership Interests." The
definition of Outstanding Limited Partnership Interests shall be deleted and
replaced in its entirety with the following:
"Outstanding Limited Partnership Interests: The Outstanding Units."
3. Amendment of Section 6.03(a). Section 6.03(a) shall be deleted and
replaced in its entirety with the following:
"(a) Except as provided in Section 6.03(c), Net Income or Net Loss of
the Partnership shall be allocated, for each Fiscal Period, as
follows:
(i) to the General Partner in an amount equal to 1% thereof; and
(ii) to the Class A Limited Partners and Assignees as a group in
an amount equal to 99% thereof and, subject to Section 13.04, to
each Class A Limited Partner or Assignee in the ratio that the
number of Units owned by such Limited Partner or Assignee, as of
the last day of such Fiscal Period, bears to the total number of
Outstanding Units as of such date.
4. Amendment of Section 6.06(b). Section 6.06(b) shall be deleted and
replaced in its entirety with the following:
"(b) All distributions, except upon liquidation of the Partnership,
shall be made as follows:
(i) to the General Partner in an amount equal to 1% thereof; and
(ii) to the Class A Limited Partners and Assignees as a group in
an amount equal to 99% thereof and to each Class A Limited
Partner or Assignee in the ratio that the number of Units owned
by such Limited Partner or Assignee on the Record Date of such
distribution bears to the total number of Outstanding Units held
by Class A Limited Partners or Assignees on such Record Date."
5. Amendment of Section 16.04. The sentence "Holders of Units shall
have 99.495% of the outstanding voting power of the Partnership and the holder
of the Class B Limited Partnership Interest shall have .505% of the outstanding
voting power of the Partnership" in Section 16.04 shall be deleted and replaced
in its entirety with the following:
"Holders of Units shall have 100% of the outstanding voting power of
the Partnership."
6. Miscellaneous. Except as otherwise amended or modified by this
Amendment, the provisions of the Partnership Agreement shall remain unmodified
and in full force and effect. This Amendment shall be governed by the laws of
the State of Delaware without regard to conflicts of law principles. This
Amendment may be executed in one or more counterparts, all of which shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned General Partner has executed this
Amendment as of the date first written above.
GENERAL PARTNER:
CMC/HEARTLAND PARTNERS HOLDINGS, INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxx X. Xxxxxxx
Title: President
