EXHIBIT 10.1a
Amendment No. 1 to ▇▇▇▇ CENTERS LIMITED PARTNERSHIP AGREEMENT, dated as of
the 3rd day of June 6, 1996 ("Agreement") by and among ▇▇▇▇ Centers Trust and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇.
WHEREAS, pursuant to Section 3.2C of the Agreement and a Subscription
Agreement, dated July 14, 1995, L&J Realty Company has subscribed for 2000 OP
Units;
WHEREAS, pursuant to Section 12C of the Agreement the General Partner
desires to amend the Agreement to admit L&J Realty Company as a Limited Partner.
NOW, THEREFORE, the Agreement is amended as follows:
1. Any capitalized terms herein which are not otherwise defined herein
shall have the same meaning as set forth in the Agreement.
2. L & J Realty Company is hereby admitted as a Limited Partner of the
Partnership.
3. Effective as of July 14, 1995 the total number of all OP units
outstanding is 9,553,000 and each Partner is deemed to hold OP Units as follows:
OP UNITS PERCENTAGE INTEREST
-------- --------------------
Company 7,751,000 81.14%
Limited Partner
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 1,800,000 18.84%
Limited Partner
L & J Realty Company 2,000 .02%
4. Schedule A to the Partnership Agreement shall be deleted in its entirety
and shall be replaced with a new Schedule A which is annexed hereto.
5. The effective date of this Amendment No. 1 shall be July 14, 1995.
6. Except as amended by this Amendment No. 1, the Agreement shall remain in
full force and effect.
IN WITNESS WHEREOF, the Company has executed this Amendment No. 1 as of the
14th day of July, 1995.
GENERAL PARTNER:
▇▇▇▇ CENTERS TRUST, a Maryland Real Estate Investment Trust
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President
SCHEDULE A
PERCENTAGE INTEREST
General Partner 81.14%
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 18.84%
L&J Realty .02%
EXHIBIT J
SECOND AMENDMENT TO LIMITED PARTNERSHIP AGREEMENT
THIS SECOND AMENDMENT, dated as of August 12, 1998, to
that Limited Partnership Agreement, dated as of June 3, 1994, and as amended by
the First Amendment to the Partnership Agreement dated as of June 6, 1996 (the
"Partnership Agreement"), of ▇▇▇▇ CENTERS LIMITED PARTNERSHIP, a Delaware
limited partnership (the "Partnership"). Capitalized terms used herein but not
defined herein shall have the meanings given such terms in the Partnership
Agreement.
BACKGROUND
The Partnership is a party to a certain Contribution and Share
Purchase Agreement dated as of April 15, 1998 (the "Contribution Agreement")
pursuant to which, among other things, the Partnership has agreed to acquire
partnership interests in certain unaffiliated partnerships and real and personal
property owned by such partnerships and affiliates of such partnerships in
consideration for, among other things, Partnership Interests in the Partnership.
Pursuant to Section 3.2(B) of the Partnership Agreement, the General Partner of
the Partnership has the power and authority to issue additional Partnership
Interests to Persons in exchange for additional Capital Contributions. The
General Partner, pursuant to the exercise of such authority and in accordance
with Section 12(C) of the Partnership Agreement, has determined to execute this
Second Amendment to the Partnership Agreement to evidence: (i) the issuance of
additional Partnership Interests and the admission of the other signatories
hereto as Limited Partners of the Partnership and (ii) certain other amendments
to the Partnership Agreement.
NOW, THEREFORE, the parties hereto, for good and sufficient
consideration and intending to be legally bound, hereby amend the Partnership
Agreement as follows:
1. The Partnership Agreement is hereby amended to reflect the
admission as Limited Partners on the date hereof of those Persons whose names
are set forth on Annex "A" attached hereto and made a part hereof and whose
authorized signatures appear on the signature page hereto, each of whom shall
have such number of Partnership Interests as shall be set forth opposite such
signatory's name on Annex "A".
2. The Partnership Interests issued hereby shall have the same
rights, preferences, privileges and designations as the Limited Partner
Partnership Interests which have heretofore been issued by the Partnership,
including, but not limited to, the right to convert such Partnership Interests
into Common Shares of Beneficial Interest, par value, $.01 per share, of the
General Partner pursuant to Section 3.2(C) of the Partnership Agreement, as
amended hereby.
3. The second sentence of Section 3.2(B) of the Partnership
Agreement is hereby amended by adding the following underscored language as
follows:
"The number of OP Units issued to the Contributing
Party under clause (i) of this Section 3.2(B) shall
be equal to either (a) such amount as may be fixed by
agreement between the General Partner, in the General
Partner's sole discretion, and the Contributing Party
or (b) the quotient (rounded to the nearest whole
number arrived at by dividing..."
4. Section 3.2(C) of the Partnership Agreement is hereby
amended by adding to the end thereof the following sentence:
"If the Company is unable to issue Common Shares in
accordance with this Section 3.2(C) it shall redeem
the requested OP Units for cash for an amount equal
to the Market Price (as defined in Section 3.2(B))
calculated as if one OP Unit equaled one Common Share
(subject to the anti-dilution protections set forth
in this Section 3.2(C)."
5. Section 5 of the Partnership Agreement is hereby
amended by adding the following new paragraphs (D) through (G) at the end
thereof:
"D. The General Partner may not, without the consent
of all of the Limited Partners affected thereby,
change its policy of holding its assets and
conducting its business solely through the
Partnership, nor may any transactions described in
Section 5(E) or 5(F), without the consent of all the
Limited Partners affected thereby, be structured in a
manner which will change the General Partner's policy
of holding its assets and conducting its business
through the Partnership (or the Surviving Partnership
(defined below), if applicable)), if the result of
such transaction is the recognition of gain for
federal income tax purposes by such Limited Partners.
2
E. Whether or not Section 5(D) hereof is applicable,
the General Partner shall not, unless Section 5(F) is
applicable, 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 similar
transaction (each a "Termination Transaction"),
unless such Termination Transaction is one in
connection with which each Limited Partner either
will receive, or will have the right to elect to
receive, for each OP Unit held by such Limited
Partner, an amount of cash, securities, or other
property equal to the product of the number of Common
Shares into which such OP Unit is convertible and the
greatest amount of cash, securities or other property
paid to a holder of one Common Share in consideration
of one Common Share pursuant to the terms of the
Termination Transaction; provided that; if, in
connection with the Termination Transaction, a
purchase, tender or exchange offer shall have been
made to and accepted by the holders of the
outstanding Common Shares, each holder of OP Units
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 exchange right (as set forth in
Section 3.2(C)) and received Common Shares in
exchange for its OP 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.
3
F. Whether or not Section 5(D) hereof is applicable,
the General Partner may merge, or otherwise combine
its assets, with another entity without satisfying
the requirements of Section 5(E) 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
OP 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 5(G)) and the relative fair
market value of the other net assets of the Surviving
Partnership (as determined pursuant to Section 5(G))
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 least
one of: (A) the consideration available to such
Limited Partners pursuant to Section 5(E), or (B) if
the ultimate controlling person of the Surviving
Partnership has publicly traded common equal
securities, such common equity securities, with an
exchange ratio based on the relative fair market
value of such securities (as determined pursuant to
Section 5(G)) and the Common Shares.
G. In connection with any transaction permitted by
Section 5(E) or 5(F), the relative fair market values
shall be reasonably determined by the General Partner
in good faith 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 the terms of such transactions."
6. Section 7.6(A) of the Partnership Agreement is hereby
amended to change the reference to "Prop. Reg. ? 1.704-3(b)(1)" to "Regulations
Section
7. The first sentence of Section 12(B)(i) of the
Partnership Agreement is hereby amended and restated as follows:
4
"(i) No Limited Partner or substituted Limited
Partner shall, without the prior written consent of
the General Partner (which consent may be given or
withheld in the sole discretion of the General
Partner), sell, assign, distribute or otherwise
transfer (a "Transfer") all or any part of his
interest in the Partnership except by operation of
law, gift (outright or in trust) or by sale, in each
case to or for the benefit of a Permitted Transferee
(as defined below), except for (a) pledges or other
collateral transfers effected by a Limited Partner to
secure the repayment of a loan and (b) the exchange
of OP Units for shares of Common Stock of the
Company, pursuant to Section 3.2(C) above. For
purposes of this Section 12(B)(i), the term
"Permitted Transferee" means (i) any partner or other
equity owner of a Limited Partner; (ii) an equity
owner of any partner or other equity owner of a
Limited Partner; (iii) members of the Immediate
Family (as defined below) of any equity owner of a
Limited Partner (or any equity owner thereof) and
trusts for the benefit of one or more members of the
Immediate Family of the Limited Partner (or any
equity owner thereof) created for a state and/or gift
tax purposes and/or (iv) any public charity, public
foundation or charitable institution as defined in
Section 501(C)(3) of the Code. For purposes of this
Section 12(B)(i), the term "Immediate Family" means,
with respect to any natural person, such natural
person's spouse, parents, parents-in-law,
descendants, nephews, nieces, brothers, sisters,
brothers-in-law, sisters-in-law and children-in-law."
8. Section 16(A)(ii) of the Partnership Agreement is hereby
amended and restated as follows:
"(ii) except (x) as otherwise provided for in this
Agreement, (y) as required by law or (z) in the case
of technical modifications which do not have a
material adverse impact on any Partner, to modify the
allocation of Profits and Losses or distributions
among the Partners as provided for in Sections 7 and
8 above, respectively; or"
5
9. Section 16(A)(iii) of the Partnership Agreement is
hereby amended to include reference to Sections 5(D) through (G).
10. By execution of this Second Amendment to the Partnership
Agreement, each of the signatories hereto agrees to be bound by each and every
term of the Partnership Agreement as amended hereby from and after the date
hereof.
11. Except as expressly set forth in this Second Amendment,
the Partnership Agreement is hereby ratified and confirmed in each and every
respect.
IN WITNESS WHEREOF, this Second Amendment to the Limited
Partnership Agreement is executed and delivered as of the date first written
above.
▇▇▇▇ CENTERS TRUST,
General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
-----------------------
▇▇▇▇▇▇ ▇▇▇▇
Title: Senior Vice President
---------------------
Limited Partners:
__________________________
__________________________
__________________________
__________________________
6
THIRD AMENDMENT TO LIMITED PARTNERSHIP AGREEMENT
THIS THIRD AMENDMENT, dated as of December 17, 1998, to that
Limited Partnership Agreement, dated as of June 3, 1994, and as amended by the
First Amendment to the Partnership Agreement dated as of June 6, 1996 and as
amended by the Second Amendment to the Partnership Agreement dated as of August
12, 1998 (the "Partnership Agreement"), of ACADIA REALTY LIMITED PARTNERSHIP, a
Delaware limited partnership (the "Partnership"). Capitalized terms used herein
but not defined herein shall have the meanings given such terms in the
Partnership Agreement.
BACKGROUND
The General Partner, pursuant to the exercise of such
authority and in accordance with Section 12(C) of the Partnership Agreement, has
determined to execute this Third Amendment to the Partnership Agreement to
evidence the assignment of certain Partnership Interests and the admission of
the other signatories hereto as Limited Partners of the Partnership.
NOW, THEREFORE, the parties hereto, for good and sufficient
consideration and intending to be legally bound, hereby amend the Partnership
Agreement as follows:
1. The Partnership Agreement is hereby amended to reflect (i)
the withdrawal of RD G.O. Properties, L.P. as a limited partner and (ii) the
admission as Limited Partners of those Persons whose names are set forth on
Annex "A" attached hereto and made a part hereof and whose authorized signatures
appear on the signature page hereto, each of whom shall have such number of
Partnership Interests as shall be set forth opposite such signatory's name on
Annex "A".
2. The Partnership Interests issued hereby shall have the same
rights, preferences, privileges and designations as the Limited Partner
Partnership Interests which have heretofore been issued by the Partnership,
including, but not limited to, the right to convert such Partnership Interests
into Common Shares of Beneficial Interest, par value, $.01 per share, of the
General Partner pursuant to Section 3.2(C) of the Partnership Agreement, as
amended hereby.
3. By execution of this Third Amendment to the Partnership
Agreement, each of the signatories hereto agrees to be bound by each and every
term of the Partnership Agreement as amended hereby from and after the date
hereof.
4. Except as expressly set forth in this Third Amendment, the
Partnership Agreement is hereby ratified and confirmed in each and every
respect.
5. This Third Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall together
constitute one and the same instrument. This Third Amendment shall become
binding when one or more counterparts hereof, individually taken together, shall
bear the signatures of all of the parties reflected hereon as the signatories.
IN WITNESS WHEREOF, this Third Amendment to the Limited
Partnership Agreement is executed and delivered as of the date first written
above.
ACADIA REALTY TRUST,
General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
------------------------------
Substituted Limited Partners:
▇▇▇▇ ▇▇▇▇▇▇▇ REALTY LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Member
RD GREENBELT, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
KAL PARTNERS L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: General Partner
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇
2
S & J ▇▇▇▇ REVOCABLE TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Trustee
▇▇▇▇▇▇▇▇▇▇ FAMILY 1991 TRUST
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Trustee
▇▇▇▇▇▇▇▇▇▇ FAMILY 1986 TRUST
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
Title: Trustee
Withdrawing Limited Partner:
RD G.O. PROPERTIES, L.P.
By: RD Greenbelt, Inc., its general
partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
3
ANNEX "A"
Name of Limited Partner Number of Partnership Interests
----------------------- -------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ Realty LLC 294,434
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Taxpayer ID#: ▇▇-▇▇▇▇▇▇▇
RD Greenbelt, Inc. 55,011
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
KAL Partners L.P. 102,068
▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Taxpayer ID: ▇▇-▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 34,005
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇. ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Soc. Sec. #: ###-##-####
▇▇▇▇▇ ▇▇▇▇▇ 17,029
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Soc. Sec. #: ###-##-####
S & J ▇▇▇▇ Revocable Trust 25,517
c/o ▇▇▇▇▇▇▇ ▇▇▇▇, Trustee
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Taxpayer ID #: ###-##-####
4
Name of Limited Partner Number of Partnership Interests
----------------------- -------------------------------
▇▇▇▇▇▇▇▇▇▇ Family 1991 Trust 21,247
c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Trustee
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Taxpayer ID#: ###-##-####
▇▇▇▇▇▇▇▇▇▇ Family 1986 Trust 21,247
c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Taxpayer ID#: ▇▇-▇▇▇▇▇▇▇
5
