Exhibit 10.1
FIRST AMENDMENT
TO
AGREEMENT OF LIMITED PARTNERSHIP
OF
LSS I LIMITED PARTNERSHIP
THIS FIRST AMENDMENT TO AGREEMENT OF LIMITED PARTNERSHIP OF LSS I LIMITED
PARTNERSHIP (this "Amendment") is made and entered into as of the 11th day of
August, 2005, by and among (i) XXXX X. OIL AND GAS COMPANY, fka LIBERTY
SELF-STOR, INC., a Maryland corporation (the "Company"), as the general partner
(the "General Partner"), and (ii) XXXXXXX X. XXXXXXX, an individual resident of
the State of Ohio ("Xxxxxxx"), XXXXXX X. XXXXX, an individual resident of the
State of Ohio ("Xxxxx"), THE RETIREMENT MANAGEMENT COMPANY, an Ohio corporation
("RMC"), and the Company, as the limited partners (collectively, the "Limited
Partners," and each, a "Limited Partner"). Capitalized terms not otherwise
defined in this Amendment shall have the meanings assigned to them in the
Partnership Agreement (as hereinafter defined).
RECITALS:
WHEREAS, the parties to this Amendment entered into that certain Agreement of
Limited Partnership of LSS I Limited Partnership, dated as of December 29, 1999,
governing the relationship of the Partners thereto and the management of the
affairs and business of the Partnership (the "Partnership Agreement");
WHEREAS, on April 5, 2005, the Company completed the sale of substantially all
of its self-storage facilities to U-Store-It, L.P. for a cash purchase price of
$33.7 million (the "Transaction");
WHEREAS, upon the completion of the Transaction, the Company distributed the
proceeds in accordance with the Partnership Agreement;
WHEREAS, as of the date of this Amendment, the Partnership owns two self-storage
facilities in Painesville and Gahanna, Ohio, land located in Ravenna, Ohio and
certain furniture and equipment; and
WHEREAS, the parties hereto desire to amend the Partnership Agreement, in
accordance with Section 11.1(d) thereof, as set forth below;
AGREEMENT:
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NOW, THEREFORE, in consideration of the mutual premises and covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereby agree to amend the
Partnership Agreement as follows:
1. Section 6.5 of the Partnership Agreement is hereby deleted in its entirety
and replaced with the following amended and restated Section 6.5:
Section 6.5 Management Fee. The General Partner, as the Partner
responsible for the management of the affairs and business of the
Partnership and in exchange for such services, shall be entitled to
an annual management fee equal to six percent (6%) of the annual
gross revenue of the Partnership (the "Management Fee"), payable at
least annually at such times as the General Partner shall determine
in its sole discretion. The parties hereto agree that the Management
Fee shall, for purposes of taxation, be regarded by the Partners,
pursuant to Section 707(a) of the Code, as a payment to the General
Partner in a transaction between the Partnership and the General
Partner acting other than in his capacity as a member of the
partnership. The General Partner shall not be entitled to
reimbursement (other than the Management Fee) for any expenses
incurred by the General Partner in performance of its duties as
General Partner under the Partnership Agreement, but shall rely
solely on the Management Fee for such purpose.
2. Section 6.7 of the Partnership Agreement is hereby amended by deleting and
reserving Section 6.7(a) thereto.
3. The definition of "Exchange Factor" in Section 1 of Exhibit D to the
Partnership Agreement is hereby deleted in its entirety and replaced with the
following amended and restated definition:
"Effective as of April 22, 2005, Exchange Factor" shall mean 10.9%,
provided that such factor shall be adjusted in accordance with the
Anti-dilution Provisions of Paragraph 7 hereof.
4. Section 7 of Exhibit D to the Partnership Agreement is hereby amended by
adding the following Subsection (e) thereto:
(e) If any event occurs as to which any of the provisions of this
Section 7 are not strictly applicable, or if strictly applicable,
would not fairly protect the exchange rights of a holder of
Partnership Units or otherwise would not fairly protect the REIT
shareholders, the General Partner shall make such other adjustments
to the number of REIT Shares issuable upon exchange of a Partnership
Unit, as determined by the General Partner's board of directors
exercising its reasonable judgment, as it deems necessary to comply
with the established interests and principles of this Section 7,
including, but not limited to, the adjustment of the definition of
Exchange Factor.
5. Except as explicitly amended by this Amendment, the Partnership Agreement
remains unmodified and in full force and effect.
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IN WITNESS WHEREOF, this First Amendment to Agreement of Limited
Partnership of LSS I Limited Partnership has been duly executed and delivered by
the parties as of the date first written above.
GENERAL PARTNER:
XXXX X. OIL AND GAS COMPANY,
a Maryland corporation
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: President and Chief Operating
Officer
CLASS A LIMITED PARTNERS:
/s/ Xxxxxxx X. Xxxxxxx
----------------------
XXXXXXX X. XXXXXXX
/s/ Xxxxxx X. Xxxxx
----------------------
XXXXXX X. XXXXX
RETIREMENT MANAGEMENT COMPANY,
an Ohio corporation
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Sole Shareholder
CLASS B LIMITED PARTNER:
XXXX X. OIL AND GAS COMPANY,
a Maryland corporation
By: /s/ Xxxxxx X. Xxxxx
----------------------
Name: Xxxxxx X. Xxxxx
Title: President and Chief Operating
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