FIRST AMENDMENT TO THE AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF COLE OPERATING PARTNERSHIP II, LP
EXHIBIT 10.11
FIRST AMENDMENT TO THE AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP OF
XXXX OPERATING PARTNERSHIP II, LP
OF LIMITED PARTNERSHIP OF
XXXX OPERATING PARTNERSHIP II, LP
THIS FIRST AMENDMENT TO THE AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF XXXX
OPERATING PARTNERSHIP II, LP (this “Amendment”), is made as of this 9th day of
May, 2007, by XXXX CREDIT PROPERTY TRUST II, INC., a Maryland corporation (hereinafter referred to
as the “General Partner”) and XXXX REIT ADVISORS II, LLC, a Delaware limited liability
company.
BACKGROUND INFORMATION
Each of the Partners has previously executed that certain Amended and Restated Agreement of
Limited Partnership of Xxxx Operating Partnership II, LP dated September 16, 2005 (the
“Partnership Agreement”). The Partners desire to amend the Partnership Agreement to
provide for future amendments to the Partnership Agreement that automatically reflect future
issuances and redemptions of Partnership Units that are properly issued or redeemed under the
Partnership Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, and intending to be
legally bound hereby, the parties hereto, being duly sworn, do covenant, agree, swear and certify
as follows:
1. Capitalized Terms. Capitalized terms used herein and not otherwise defined herein
shall have the meaning ascribed to such terms in the Partnership Agreement.
2. Amendment to Article I. Article I of the Partnership Agreement is amended by
deleting the definition of “Partnership Unit” and replacing it with the following:
“Partnership Unit” means a fractional, undivided share of the Partnership Interests of
all Partners issued hereunder. The number of Partnership Units held by the General Partner
will, as of any relevant date, equal the difference between (a) the product of the number of
shares of the General Partner issued since the formation of the General Partner through such
relevant date (adjusted to reflect any subdivisions or combinations of shares of the General
Partner through such relevant date), multiplied by the inverse of the Conversion Factor as
of such relevant date (i.e., one (1) divided by the Conversion Factor as of such relevant
date), and (b) the sum of (i) the number of Partnership Units of the General Partner deemed
purchased or redeemed pursuant to Section 6.10 since the inception of the Partnership
through such relevant date and (ii) all Partnership Units held by the Original Limited
Partner. It is acknowledged that if the Partnership makes a distribution of Partnership
Units or subdivides or combines the outstanding Partnership Units in order to give
equivalent effect to a dividend or distribution of the General Partner’s shares or a
subdivision or combination of the General Partner’s shares, then the Partnership Units held
by the General Partner will not be entitled to any such distribution of Partnership Units or
affected by any such subdivision or combination of Partnership Units because the number of
the General Partner’s Partnership Units will have already been adjusted by virtue of the
dividend or distribution of the General Partner’s shares or the subdivision or combination
of the General Partner’s shares.
3. Amendment to Section 4.01. Section 4.01 of the Partnership Agreement is hereby
amended by adding the following at the end thereof.
Exhibit A shall be deemed automatically amended upon, and the General Partner may,
without the approval of any other Partner, attach an amended Exhibit A to this
Agreement to reflect: (a) the issuance of Partnership Units issued to Additional Limited
Partners or to any existing Limited Partner pursuant to Section 4.02, (b) any Partnership
Units purchased or redeemed pursuant to Section 6.10, (c) any redemption or purchase of
Partnership Units by the Partnership or the General Partner by reason of the exercise by a
Limited Partner of the Exchange Right and (d) any purchase by the General Partner (or any of
its Affiliates) of Partnership Units pursuant to the Call Right.
4. Amendment to Section 11.01. Section 11.01 of the Partnership Agreement is hereby
amended by adding the following at the end thereof:
Notwithstanding anything to the contrary contained in this Agreement, the Partners acknowledge
that this Agreement shall be deemed to be automatically amended and the General Partner is
authorized to amend this Agreement to the extent provided in Section 4.01 hereof.
5. Amendment to Exhibit A. Exhibit A to the Partnership Agreement is hereby amended
by replacing such exhibit with Exhibit A attached to this Amendment.
6. Ratification. In all other respects the Partnership shall be governed by the terms
and conditions of the Partnership Agreement and the Certificate of Limited Partnership of the
Partnership.
7. Counterparts. This Amendment may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of such counterparts shall constitute one and the
same agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned has executed this Amendment on the day and year first
above written.
| XXXX CREDIT PROPERTY TRUST II, INC. |
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| By: | /s/Xxxxxxxxxxx X. Xxxx | |||
| Title: President and Chief Executive Officer | ||||
| XXXX REIT ADVISORS II, LLC |
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| By: | /s/Xxxxxxxxxxx X. Xxxx | |||
| Title: Chief Executive Officer | ||||
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