Exhibit 10.6
XXXXXXXX HOSPITALITY LMITED PARTNERSHIP
THIRD AMENDMENT TO FIRST AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHP
THIS THIRD AMENDMENT TO FIRST AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP (this "Amendment") is made as of the _____ day of ______________,
1997, by and among Xxxxxxxx Hospitality Reit Trust, a Maryland real estate
investment trust, as General Partner (the "General Partner"), and Xxxxx X
Xxxxxxxx, Xx., Xxxxxxxx Associates, Inc., a Maryland corporation and Farmville
Lodging Associates, LLC, a Maryland limited liability company, as Limited
Partners (the "Limited Partners").
WHEREAS, Xxxxxxxx Hospitality Limited Partnership (the "Partnership")
was formed as a limited partnership under the laws of the Commonwealth of
Virginia upon the filing of its Certificate of Limited Partnership with the
Virginia State Corporation Commission on August 29, 1994, and is governed by a
First Amended and Restated Agreement of Limited Partnership, dated November 29,
1994, as amended by a First Amendment dated July 20, 1995 and a Second Amendment
dated March 13, 1997 (collectively, the "Partnership Agreement").
WHEREAS, Xxxxxxxx Hospitality Trust, Inc., a Virginia corporation
("HHTI") was originally the general partner of the Partnership and by virtue of
the Second Amendment withdrew from the Partnership and the General Partner, a
wholly-owned subsidiary of HHTI, became the general partner of the Partnership;
and
WHEREAS, as a result of the withdrawal of HHTI and the admission of the
General Partner, certain clarifying changes to the Partnership Agreement are
necessary.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
hereinafter set forth, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Amendments to Agreement.
(a) The definition of "Administrative Expenses" is hereby
amended to add the words "and HHTI" after the words "General Partner" each time
they appear.
(b) The definition of "Cash Amount" is hereby amended to
substitute the word "HHTI" for the words "the General Partner" each time they
appear.
(c) The definition of "General Partner" is amended to
substitute "Xxxxxxxx Hospitality Reit Trust" for the words "Xxxxxxxx Hospitality
Trust, Inc."
(d) The definition of "Offering" is hereby amended to
substitute the word "HHTI" for the words "the General Partner" each time they
appear.
(e) The definition of "Prospectus" is hereby amended to
substitute the word "HHTI's" for the words "the General Partner's".
(f) The definition of "Redemption Amount" is hereby amended to
substitute the word "HHTI" for the words "the General Partner".
(g) The definition of "REIT Expenses" is hereby amended to
substitute the word "HHTI" for the words "the General Partner" each time they
appear.
(h) The definition of "REIT Shares Amount" is hereby amended
to substitute the word "HHTI" for the words "the General Partner".
(i) The definition of "Specified Redemption Date" is hereby
amended to substitute the word "HHTI" for the words "the General Partner".
(j) Section 2.03(a) is hereby amended to substitute the words
"Xxxxxxxx Hospitality Reit Trust" for the words "Xxxxxxxx Hospitality Trust,
Inc." each time they appear.
(k) Article III is hereby amended to substitute the word
"HHTI" for the words "the General Partner" each time they appear in the first
sentence thereof.
(l) Section 4.02(a)(i)(1) is hereby amended to substitute the
word "HHTI" for the words "the General Partner" in the second line and in the
last line thereof.
(m) Section 4.02(a)(ii) is hereby amended and restated in its
entirety as follows:
(ii) Upon Issuance of New Securities. After the
initial public offering for HHTI (the "Initial Offering"),
HHTI shall not issue any additional REIT shares (other than
REIT shares issued in connection with a redemption pursuant to
Section 8.05 hereof) or rights, options, warrants or
convertible or exchangeable securities containing the right to
subscribe for or purchase REIT shares (collectively, "New
Securities") other than to all holders of REIT shares, unless
(A) the General Partner shall cause the Partnership to issue
to the General Partner, Partnership Interests or rights,
options, warrants or convertible or exchangeable securities of
the Partnership having designations, preferences and other
rights, all such that the economic interests are substantially
similar to those of the New Securities, and (B) HHTI
contributes to the General Partner and the General Partner
contributes to the Partnership the proceeds from the issuance
of such New Securities and from the exercise of rights
contained in such New Securities to the Partnership; provided,
however, that HHTI is allowed to issue New Securities in
connection with an acquisition of property to be held directly
by HHTI, but if and only if such direct acquisition and
issuance of New Securities have been approved and determined
to be in the best interests of HHTI, the General Partner and
the Partnership by a majority of the directors of HHTI, which
majority includes a majority of the Independent Directors (as
defined in the prospectus for the Initial Offering). Without
limiting the foregoing, HHTI is expressly authorized to issue
New Securities for less than fair market value and to cause
the Partnership to issue to the General Partner corresponding
Partnership Interests, so long as (x) HHTI concludes in good
faith that such issuance is in the best interests of HHTI, the
General Partner and the Partnership (for example, and not by
way of limitation, the issuance of REIT Shares and
corresponding Partnership Units pursuant to an employee stock
purchase plan providing for employee purchases of REIT shares
at a discount from fair market value or employee stock options
that have an exercise price that is less than the fair market
value of the REIT Shares, either at the time of issuance or at
the time of exercise), and (y) HHTI contributes to the General
Partner and the General Partner contributes to the Partnership
all proceeds from such issuance. By way of example, in the
event HHTI issues REIT Shares for a cash purchase price and
contributes all of the proceeds of such issuance to the
General Partner for contribution to the Partnership as
required hereunder, the General Partner shall be issued a
number of additional Partnership Units equal to the product of
(A) the number of such REIT Shares issued by HHTI, the
proceeds of which were so contributed, multiplied by (B) a
fraction, the numerator of which is one hundred percent
(100%), and the denominator of which is the Conversion Factor
in effect on the date of such contribution.
(n) Section 4.02(b) is amended to add the words "HHTI shall
contribute to the General Partner and" before the words "the General Partner" in
line 2 thereof.
(o) Section 4.03 is hereby amended by deleting the last
sentence thereof.
(p) Section 6.04(d) is hereby amended to substitute the word
"HHTI" for the words "the General Partner" in clauses (i) and (ii) thereof.
(q) Section 6.06(b) is hereby amended to substitute the word
"HHTI" for the words "the General Partner" in lines 1, 4, and 8 thereof.
(r) Section 6.09 is hereby amended to add the words "and HHTI"
after the words "the General Partner" each time they appear. Section 6.09 is
further amended to substitute the word "Directors" for the word "Trustees".
(s) Section 7.01(c) is hereby amended to add the words "and
HHTI" after the words "the General Partner" in line 2 thereof.
(t) The first sentence of Section 7.01(d) is hereby
amended and restated in its entirety as follows:
Notwithstanding Section 7.01(c), HHTI may merge into or
consolidate with another entity if immediately after such
merger or consolidation (i) substantially all of the assets of
the successor or surviving entity (the "Surviving Entity"),
are contributed to the Partnership as a Capital Contribution
in exchange for Partnership Units with a fair market value
equal to the value of the assets so contributed as determined
by the Surviving Entity in good faith and (ii) the Surviving
Entity expressly agrees to assume all obligations of HHTI
hereunder.
The second and third sentences of Section 7.01(d) are hereby amended to delete
the word "Surviving".
(u) Section 8.05(c) is hereby amended to substitute the word
"HHTI" for the words "the General Partner" in line 8 thereof, to add the words
"or HHTI" after the words "General Partner" in line 10 thereof, to add the word
",HHTI's" after the words "General Partner's" in line 11 thereof, and to add the
words "and HHTI" after the words "the General Partner" in lines 20 and 22
thereof.
(v) Section 8.06(a) is hereby amended to substitute the word
"HHTI" for the words "the General Partner" each time they appear.
(w) Section 8.06(b) is hereby amended to substitute the word
"HHTI" for the words "the General Partner" each time they appear.
(x) Section 8.06(d) is hereby amended by substituting the word
"HHTI" for the words "the General Partner" each time they appear.
(y) Section 8.06(f) is hereby amended by substituting the
word "HHTI" for the words "the General Partner".
2. Joinder of HHTI. HHTI joins in this Third Amendment to evidence its
agreement to be bound by all covenants and obligations of HHTI set forth herein.
Nothing herein shall be construed so as to make HHTI a partner in the
Partnership, however.
3. No Other Modifications. Except as expressly set forth herein, the
Partnership agreement remains in full force and effect in accordance with the
terms thereof and there are no other modifications thereto.
4. Governing Law. This Third Amendment shall be governed by the internal
laws of the State of Virginia (determined without reference to principles of
conflicts of law).
5. Counterparts. This Third Amendment may be executed in counterparts,
each of which shall constitute an original and all of which together shall
constitute one and the same agreement.
IN WITNESS WHEREOF, and intending to be legally bound, the undersigned
have executed this Third amendment as of the date and year first above written.
WITNESS: GENERAL PARTNER:
XXXXXXXX HOSPITALITY REIT TRUST, a Maryland real
estate investment trust
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
______________________________
Xxxxx X. Xxxxxxxx, Xx.
President
LIMITED PARTNERS:
/s/ Xxxxx X. Xxxxxxxx, Xx.
------------------------------------
Xxxxx X. Xxxxxxxx, Xx.
XXXXXXXX ASSOCIATES, INC., a Maryland corporation
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
______________________________
Xxxxx X. Xxxxxxxx, Xx.
President
FARMVILLE LODGING ASSOCIATES, LLC, a Maryland
limited liability company
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
______________________________
Xxxxx X. Xxxxxxxx, Xx.
Authorize Member
CONSENTED TO FOR THE PURPOSES SET FORTH IN
SECTION 2:
XXXXXXXX HOSPTALITY TRUST, INC.
By: /s/ Xxxxx X. Xxxxxxxx
______________________________
Xxxxx X. Xxxxxxxx
President
