Exhibit 99.6
SECOND
AMENDMENT
TO
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
XXXXXX HOTEL PROPERTIES, L.P.
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Dated as of January 1, 2002
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THIS SECOND AMENDMENT TO SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP OF XXXXXX HOTEL PROPERTIES, L.P. (this "AMENDMENT") is hereby
adopted by Xxxxxx Lodging Company, an Ohio corporation (the "GENERAL PARTNER" or
the "COMPANY"), as the general partner of Xxxxxx Hotel Properties, L.P., an Ohio
limited partnership (the "PARTNERSHIP"). For ease of reference, capitalized
terms used herein and not otherwise defined have the meanings assigned to them
in the Second Amended and Restated Agreement of Limited Partnership of Xxxxxx
Hotel Properties, L.P., dated May 20, 1998, as amended by that certain Amendment
to Second Amended and Restated Agreement of Limited Partnership, dated February
1, 1999 (the "AGREEMENT").
WHEREAS, Article IV, Section 4.3(a) of the Agreement grants the General
Partner authority to cause the Partnership to issue Partnership Interests in the
Partnership to any Person in one or more classes or one or more series of any of
such classes, with such designations, preferences and relative, participating,
optional or other special rights, powers and duties including rights, powers and
duties senior to Limited Partnership Interests as shall be determined by the
General Partner in its sole and absolute discretion and without the approval of
any Limited Partner, subject to Ohio law.
WHEREAS, the Partnership is a party to that certain Master Contribution
Agreement, dated as of December 31, 2001, among the General Partner, the
Partnership, Xxxxxx Management Company Limited Liability Company, an Ohio
limited liabilities, and JABO LLC, a Delaware limited liability company ("JABO")
(as the same may be amended, supplemented or modified, the "MASTER CONTRIBUTION
AGREEMENT"), pursuant to which the Partnership will issue additional Partnership
Units.
WHEREAS, Sections 2.3(a) and 11.1(b) of the Agreement grant the General
Partner power and authority to amend the Agreement without the consent of any of
the Partnership's Limited Partners if such amendment is for the purpose of
adding or substituting Limited Partners.
WHEREAS, the General Partner desires to amend the Agreement to, among other
things, admit JABO as a Limited Partner.
NOW, THEREFORE, the General Partner hereby amends the Agreement as follows:
1. Article I of the Agreement is hereby amended by deleting the
definition of "PARTNERSHIP UNITS" and replacing it in its entirety with the
following:
"PARTNERSHIP UNIT" shall mean a fractional, undivided share of
the Partnership Interests of all Partners issued hereunder. As of
January 1, 2002, there shall be considered to be 18,108,946
Partnership Units outstanding, with each 1,000 Partnership Units
representing a 0.00552 percent Percentage Interest in the Partnership.
At all times there shall be maintained an equivalency of Partnership
Units and REIT shares, except as otherwise provided herein, and except
that the conversion of the Subordinated Convertible Debt shall be
effected without the issuance of additional REIT Shares.
2. Section 7.4(a) of the Agreement is hereby amended by adding the
following to the end of such section:
"Notwithstanding anything contained in this Section 7.4(a),
unless the REIT receives an opinion from the REIT's counsel that the status of
the REIT shall not be jeopardized, any Limited Partner that owns directly or
indirectly, or is deemed to own, directly or indirectly any Person (other than
an individual), that is serving as an eligible independent contractor (as
defined in the Code) of the Partnership or of the general Partner, shall be
entitled to exercise a Redemption Right only with respect to such number of
Partnership Units that, if redeemed for only the REIT Shares Amount pursuant to
Section 7.4(b) hereof, such Limited Partner would Beneficially Own (as
hereinafter defined) no more than 9.9% of the total number of issued and
outstanding REIT shares;" provided, however, that in the event of one or more
transfers that result in a sale of all or substantially all of the REIT's or the
Partnership's assets, or a sale, merger, reorganization or restructuring as
described in Sections 9.1(c) and 9.1(d) hereof, this provision shall not apply.
3. Section 7.4(b) of the Agreement is hereby amended by adding the
following to the end of such section:
"Notwithstanding the foregoing in Section 7.1(a) or this Section
7.4(b), unless the REIT receives an opinion from the REIT's counsel that the
status of the REIT shall not be jeopardized, should the General Partner elect to
satisfy a Redemption Right by paying the Redeeming Partner the REIT Shares
Amount, and it is necessary to obtain shareholder approval in order to issue
sufficient REIT Shares to satisfy the such Redemption Right in full, then the
General Partner shall have one hundred twenty (120) days beyond the Specified
Redemption Date in which to obtain such shareholder approval and to pay the REIT
Shares Amount and the Specified Redemption Date shall be deemed to occur: (i)
ten days after a shareholder meeting will have been held; (ii) the date on which
the General Partner elects to pay such Redeeming Partner the Cash Amount; or
(iii) one hundred and thirty (130) days after such Partnership Units are
presented for redemption, whichever is earlier. Should such shareholder approval
not be obtained, then the General Partner and/or the Partnership shall be
obligated to pay to the Redeeming Partner the Cash Amount no later than the end
of what would have been the Payout Period had the General Partner not elected to
pay the Cash Amount upon the redemption, together with interest on such Cash
Amount as specified in Section 7.4(a) hereof."
4. EXHIBIT A of the Agreement is hereby deleted and is replaced in its
entirety by new EXHIBIT A attached hereto as ATTACHMENT 1.
On and after the effective date of this Amendment, each reference in the
Agreement to "this Agreement", "hereunder", "hereof", or words of like import
referring to the Agreement shall mean and refer to the Agreement as amended
hereby. The terms of this Amendment shall modify and amend the terms of the
Agreement to the extent expressed herein; but every other term, condition,
covenant, representation and warranty contained in the Agreement is hereby
ratified and affirmed and shall remain unchanged unless expressly modified or
amended hereby.
IN WITNESS WHEREOF, the General Partner has executed this Amendment as of
the date first written above.
Xxxxxx Lodging Company
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: President
ATTACHMENT 1
EXHIBIT A
(as of January 1, 2002)
LIST OF PARTNERS
PERCENTAGE
PARTNERS UNITS INTEREST
GENERAL PARTNER
Xxxxxx Lodging Company 15,390,690 84.990%
00 X. Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxx 00000
LIMITED PARTNERS
JABO, LLC 1,427,142 7.881%
The Xxxxxx Group, Inc. 779,941 4.307%
Xxxx X. Xxxxxx, Original Independent Trustee of The Xxxx X. Xxxxxx 1997 Amended and 124,438 0.687%
Restated Revocable Trust Indenture, dated November 19, 1997
Xxxxxx X. Xxxxxx, Original Independent Trustee of The Xxxxxx X. Xxxxxx Second 1997 157,114 0.868%
Amended and Restated Revocable Trust Indenture, dated July 23, 1997
Xxxxxxx X. Xxxxxx, Xxxx X. Xxxxxx, Xxxxxx X. Xxxxxx, Trustees under the Xxxxxxx X. 150,000 0.828%
Xxxxxx Trust Agreement originally dated March 9, 1988, as most recently modified by
a Fourth Restatement Thereof dated May 23, 1993 and a Third Modification thereof
dated September 17, 1997
X.X. Xxxxxx, Trustee of the Xxxxxx X. Xxxxxx Revocable Trust under Agreement dated 17,201 0.095%
as of October 31, 1995
Xxxxxx X. Xxxxx, Trustee of the Xxxxxx X. Xxxxx Revocable Living Trust under 17,201 0.095%
Agreement dated as of September 11, 1992
Xxxxxxx X. Xxxx, Trustee of the 10,650 0.059%
Xxxxxxx X. Xxxx Trust dated December 20, 1995
Xxxxxxx X. Xxxxxxxx, Trustee of The Xxxxxxx X. Xxxxxxxx Trust, dated November 1, 2000 10,650 0.059%
PERCENTAGE
LIMITED PARTNERS
M & P Partners (Xxxxxx X. Xxxxxx, Trustee of The Xxxxxx X. Xxxxxx Revocable Trust 2,591 0.014%
dated March 4, 1993, Managing Partner)
Xxxx X. X'Xxxx 1,400 0.008%
Xxxxxx X. Xxxxxxxx, Trustee of the Xxxxxx X. Xxxxxxxx Revocable Living Trust under 8,601 0.047%
Agreement dated Xxxxx 0, 0000
Xxxxxxx X. Xxxxxxxx, Trustee of the DAV-JVJ Trust under Agreement dated 2,726 0.015%
January 4, 1993
Xxxxxxx X. Xxxxxxx, Trustee of the Xxxxxxx X. Xxxxxxx Revocable Living Trust Under 8,601 0.047%
Agreement dated October 6, 1987
TOTAL 18,108,946 100.000%
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