EXHIBIT 10.35
THIRD AMENDMENT TO AGREEMENT OF
LIMITED PARTNERSHIP OF XXXXXXXXX XXXXXX
The Agreement of Limited Partnership of Xxxxxxxxx Xxxxxx Properties
Operating Partnership, L.P., dated as of December 27, 1993, is hereby amended as
of this 27th day of February, 1997, as follows:
1. Article I is hereby amended to insert the following definition in the
appropriate alphabetical order:
"'Consent of the Partners' means the Consent of Partners holding
Percentage Interests that in the Aggregate are equal to or greater than
60% of the aggregate Percentage Interests of all Partners, which Consent
shall be obtained prior to the taking of any action for which it is
required by this Agreement and may be given or withheld by such Partners,
in their sole and absolute discretion."
2. Section 11.2 is hereby amended by inserting "A," at the beginning of
the existing paragraph and inserting after such paragraph the following:
"B. In addition to, and not in lieu of, the restrictions set forth
elsewhere in this Agreement, including without limitation in Section 11.2A
and Section 7.2E hereof, the General Partner shall not engage in any
merger, consolidation or other combination with or into another person,
sale of all or substantially all of its assets or any reclassification,
recapitalization or change of its outstanding equity interests (each, a
"Termination Transaction"), unless (i) the Termination Transaction has been
approved by a Consent of the Partners and, unless (ii) except as otherwise
provided in Section 11.2C, in connection with which all Limited Partners
either will receive, or will have the right to elect to receive, for each
Partnership Unit an amount of cash, securities, or other property equal to
the product of the REIT Shares Amount and the greatest amount of cash,
securities or other property paid to a holder of one REIT Share in
consideration of one REIT Share pursuant to the terms of the Termination
Transaction; provided that if, in connection with the Termination
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Transaction, a purchase, tender or exchange offer shall have been made to
and accepted by the holders of the outstanding REIT Shares, each Limited
Partner shall receive, or shall have the right to elect to receive, the
greatest amount of cash, securities, or other property which such holder
would have received had it exercised its right to Redemption (as set forth
in Section 8.6) and received REIT Shares in exchange for its Partnership
Units immediately prior to the expiration of such purchase, tender or
exchange offer and had thereupon accepted such purchase, tender or exchange
offer and then such Termination Transaction shall have been consummated.
C. In addition to, and not in lieu of, the restrictions set forth elsewhere
in this Agreement, including without limitation in Section 11.2A and
Section 7.2E hereof, the General Partner may merge, or otherwise combine
its assets, with another entity without satisfying the requirements of
Section 11.2B(ii) hereof if: (i) immediately after such merger or other
combination, substantially all of the assets directly or indirectly owned
by the surviving entity, other than Partnership Units held, by such General
Partner, are owned directly or indirectly by the Partnership or another
limited partnership or limited liability company which is the survivor of a
merger, consolidation or combination of assets with the Partnership (in
each case, the "Surviving Partnership"); (ii) the Limited Partners own a
percentage interest of the Surviving Partnership based on the relative fair
market value of the net assets of the Partnership (as determined pursuant
to Section
1
11.2.E) and the other net assets of the Surviving Partnership (as
determined pursuant to Section 11.2.E) immediately prior to the
consummation of such transaction; (iii) the rights, preferences and
privileges of the Limited Partners in the Surviving Partnership are at
least as favorable as those in effect immediately prior to the
consummation of such transaction and as those applicable to any other
limited partners or non-managing members of the Surviving Partnership;
and (iv) such rights of the Limited Partners include the right to
exchange their interests in the Surviving Partnership for at last one
of: (a) the consideration available to such Limited Partners pursuant to
Section 11.2.B or (b) if the ultimate controlling person of the
Surviving Partnership has publicly traded common equity securities, such
common equity securities, with an exchange ratio based on the relative
fair market value of such securities (as determined pursuant to Section
11.2.E) and the REIT Shares.
D. In connection with any transaction described in Section 11.2.B or
Section 11.2.C, hereof, the General Partner shall use its commercially
reasonable efforts to structure such Termination Transaction to avoid
causing the Limited Partners to recognize gain for federal income tax
purposes by virtue of the occurrence of or their participation in such
Termination Transaction.
E. In connection with any transaction described in Section 11.2.B or
11.2.C, the relative fair market values shall be reasonably determined
by the General Partner as of the time of such transaction and, to the
extent applicable, shall be no less favorable to the Limited Partners
than the relative values reflected in their terms of such transaction."
3. Section 7.3.E. is hereby amended by adding to the end thereof a new
clause (4) as follows:
"(4) Prior to February 27, 2002, sell or otherwise dispose of any of
the properties known as Covina Town Square, El Camino North/Fire
Mountain, Fountain Valley, Date Palm and City Center-San Francisco."
IN WITNESS WHEREOF, the Partners have caused this Amendment to be
executed effective as of the day and year first above written.
Xxxxxxxxx Xxxxxx Properties, Inc.,
a Maryland corporation
General Partner
By: /s/ Xxxxxxxxx Xxxxxx
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Name: Xxxxxxxxx Xxxxxx, Xx.
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Title: Chairman of the Board, Chief
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Executive Officer and President
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