EXHIBIT 99.2
XXXXXXX OPERATING LIMITED PARTNERSHIP
AMENDMENT TO THE SECOND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP
This Amendment to the Second Restated Agreement of Limited Partnership of
Xxxxxxx Operating Limited Partnership, dated May 17, 2002 (this "AMENDMENT")
amends the Second Restated Agreement of Limited Partnership of Xxxxxxx Operating
Limited Partnership, dated September 2, 1997, as amended, by and among
Heritage-Xxxxxx Acquisition, Inc. (f/k/a Xxxxxxx Real Estate, Inc., the "GENERAL
PARTNER") and those Limited Partners whose names appear on the signature pages
thereto (the "PARTNERSHIP AGREEMENT"). Capitalized terms not otherwise defined
in this Amendment shall have the meanings given to such terms in the Partnership
Agreement.
WHEREAS, the General Partner proposes to amend the Partnership Agreement as
described below;
WHEREAS, the General Partner has determined that for all purposes under the
Partnership Agreement, the amendments to the Partnership Agreement set forth
below do not materially and adversely affect the powers, special rights,
preferences, privileges or voting power of the Series B Preferred Units or the
Series C Preferred Units; and
WHEREAS, this amendment to the Partnership Agreement has been approved by
the holders of not less than 50% of the Limited Partner Units in accordance with
Section 17.2 of the Partnership Agreement;
NOW THEREFORE, based on the foregoing, the Partnership Agreement is hereby
amended as follows:
1. PARTNERSHIP AGREEMENT DEFINITIONS. Section 1.1 of the Partnership
Agreement is hereby amended by (a) deleting the definition of "Exchange Ratio"
contained in such Section 1.1 and (b) in the case of those terms defined below
which are already defined in the Partnership Agreement, replacing such
definitions with the following new definitions of such terms:
"COMMON UNIT MARKET VALUE" shall mean, on any date, (a) if the Common Stock
is not quoted or listed on the NASDAQ National Market or a national securities
exchange, the Fair Market Value of a Common Unit on such date, and (b) if the
Common Stock is quoted or listed on the NASDAQ National Market or a national
securities exchange, the product of (i) the average Closing Price for the most
recent ten (10) Trading Days ending on such date, MULTIPLIED BY (ii) the
Conversion Factor.
"CONVERSION FACTOR" means 1.0; PROVIDED, HOWEVER, that in the event
Heritage (i) declares or pays a dividend on its outstanding shares of Common
Stock in shares of Common Stock or makes a distribution to all holders of its
outstanding shares of Common Stock in shares of Common Stock, (ii) splits or
subdivides its outstanding
shares of Common Stock, or (iii) effects a reverse stock split or otherwise
combines its outstanding shares of Common Stock into a smaller number of shares
of Common Stock, the Conversion Factor shall be adjusted by multiplying the
Conversion Factor previously in effect by a fraction, (1) the numerator of which
shall be the number of shares of Common Stock issued and outstanding on the
record date for such dividend, distribution, split, subdivision, reverse split
or combination (assuming for such purposes that such dividend, distribution,
split, subdivision, reverse split or combination has occurred as of such time),
and (2) the denominator of which shall be the actual number of shares of Common
Stock (determined by assuming for such purposes that such dividend,
distribution, split, subdivision, reverse split or combination has not occurred
as of such time) issued and outstanding on the record date for such dividend,
distribution, split, subdivision, reverse split or combination. Any adjustments
to the Conversion Factor shall become effective immediately after the record
date, or if no record date, the effective date for such event. It is the intent
of the above that adjustments to the Conversion Factor are to be made in order
to avoid unintended dilution or anti-dilution as a result of transactions in
which shares of Common Stock are issued, redeemed, or exchanged without a
corresponding issuance, redemption or exchange of Common Units.
"REIT SHARES AMOUNT" shall mean a number of shares of Common Stock equal to
the product of (i) the number of Common Units set forth in the Redeeming
Partner's Notice of Redemption, less the amount of any fractional Common Unit,
MULTIPLIED BY (ii) the Conversion Factor.
2. DISTRIBUTIONS TO PARTNERS. Section 8.4 of the Partnership Agreement is
hereby amended by deleting subsection (B) of such Section 8.4 in its entirety
and replacing such subsection with the following new subsection (B):
"B. THEREAFTER, PRO RATA (based on the respective number of
Common Units held by them, adjusted, if appropriate, by the
Conversion Factor), to the holders of Common Units; PROVIDED,
HOWEVER, that, (i) for each of the fiscal quarters during the
three (3) year period commencing on the effective date of the
Merger, after the distributions specified in Section 8.4.A have
been made, and subject to the Partnership being permitted by the
Act to pay such distribution, the holders of Common Units shall
receive a quarterly distribution under this Section 8.4.B in
respect of each Common Unit held by them at least equal to the
greater of (A) $0.38 per Common Unit, and (B) the amount of the
dividend, if any, declared on a share of Common Stock by Heritage
for such quarter, and (ii) for periods occurring thereafter,
after the distributions specified in Section 8.4.A have been
made, and subject to the Partnership being permitted by the Act
to pay such distribution, the holders of Common Units shall
receive a distribution under this Section 8.4.B in respect of
each Common Unit held by them at least equal to the amount of the
dividend, if any, declared on a share of Common Stock by Heritage
for such period."
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3. SEVERABILITY. In the event that a court of competent jurisdiction
determines that this Amendment materially and adversely affects the powers,
special rights, preferences, privileges or voting power of the Series B
Preferred Units or the Series C Preferred Units, this Amendment shall be deemed
modified to the extent necessary so that this Amendment does not materially and
adversely affect the powers, special rights, preferences, privileges or voting
power of the Series B Preferred Units or the Series C Preferred Units under the
Partnership Agreement.
4. NO OTHER AMENDMENTS. Except as provided herein, all other terms of the
Partnership Agreement shall remain in full force and effect.
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IN WITNESS WHEREOF, this Amendment has been executed as of the date first
above written.
GENERAL PARTNER:
HERITAGE-XXXXXX ACQUISITION, INC.
By: /s/Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
Title: Senior Vice President
LIMITED PARTNERS:
HERITAGE-XXXXXX ACQUISITION, INC., as
attorney-in-fact for the limited partners
By: /s/Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
Title: Senior Vice President
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