1
EIGHTH AMENDMENT TO FIRST AMENDED AND RESTATED
EXHIBIT 10.14
AGREEMENT OF LIMITED PARTNERSHIP
OF
XXXXXXX PROPERTIES, L.P.
This Eighth Amendment ("Eighth Amendment") to the First Amended and
Restated Agreement of Limited Partnership of Xxxxxxx Properties, L.P., a
California limited partnership, dated as of February 2, 1995, as amended (the
"Partnership Agreement"), is executed and made effective for all purposes as of
this 24th day of January, 1997 (the "Effective Date"), by and among Xxxxxxx
Properties, Inc., a Maryland corporation, the General Partner of the
Partnership, those Persons identified on Schedule 1 attached hereto (the "New
Limited Partners") and the undersigned existing Limited Partners of the
Partnership, who constitute a Majority-in-Interest of the Limited Partners as
of the date hereof. The term "New Limited Partners" shall include those
partners and interest holders of a Partnership Transferor identified on
Schedule 1A hereto to the extent that, and upon and after the date that, any
Partnership Units are distributed to such partner or interest holder by a
Partnership Transferor (as defined in the Contribution Agreement), at which
time (i) each such partner and interest holder shall be, and such Partnership
Units shall continue to be, bound by, and entitled to the benefits of, those
provisions of this Eighth Amendment applicable to a New Limited Partner and a
New Limited Partner's Partnership Units, (ii) each such partner and interest
holder shall execute a Subscription Agreement in a form reasonably requested by
the Partnership and shall execute a counterpart copy of the Partnership
Agreement, and (iii) to the extent that any Partnership Units distributed to
any such partner or interest holder are subject to a lien and security interest
in favor of the Partnership, such partner or interest holder shall execute a
Security Agreement and UCC-1 Financing Statement in form reasonably requested by
the Partnership.
WHEREAS, Section 4.3 of the Partnership Agreement provides that the
General Partner may, without the consent of any Limited Partner, from time to
time, upon its determination that the issuance of Additional Units is in the
best interests of the partnership, cause the Partnership to issue Additional
Units to a Person and, if necessary, admit such Person as an Additional Limited
Partner, in exchange for the Capital Contribution by such Person of cash and/or
property;
WHEREAS, pursuant to the terms of that certain Contribution Agreement
dated as of September 30, 1996, by and among the Partnership, the General
Partner, Xxxxxxxxx Xxxxx Xxxxxxxxxx, Xxxxx XX, Xxxxxxxxx Tower III Associates,
Baybridge Office Plaza Associates, X.X. Xxxxxxx, Xxxxxx Xxx Xxxxxxx and Xxxxxx
X. Xxxx, as Trustees of The Lathrop Trust, and X.X. Xxxxxxx (the "Contribution
Agreement"), the Transferors (as defined in the Contribution Agreement) are
concurrently herewith making the Capital Contribution to the Partnership of
certain real, personal and intangible property described in the Contribution
Agreement (the "Emeryville Capital Contribution");
WHEREAS, the General Partner has determined that the issuance of
Additional Units in the respective amounts set forth on Schedule 2 of the New
Limited Partners in exchange
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for the Transferors' making of the Emeryville Capital Contribution is in the
best interests of the Partnership;
WHEREAS, the General Partner, the New Limited Partners and the
undersigned existing Limited Partners of the Partnership, who constitute a
Majority-in-Interest of the Limited Partners as of the date hereof, desire to
enter into this Eighth Amendment to set forth the terms and conditions on
which the Transferors shall make the Emeryville Capital Contribution and to
amend certain other provisions of the partnership Agreement as set forth herein,
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree
as follows:
1. Capitalized terms used herein, unless otherwise defined herein,
shall have the same meanings as set forth in the Partnership Agreement.
2. Pursuant to Section 4.7 of the Partnership Agreement, each of
the New Limited Partners is hereby admitted to the Partnership as a Limited
Partner, and the names of the New Limited Partners are hereby recorded in the
books and records of the Partnership, effective as of the date first written
above. By executing this Eighth Amendment, the General Partner hereby consents
to the admission of the New Limited Partners as Limited Partners in the
Partnership.
3. Each of the New Limited Partners hereby agrees to be subject
and bound at all times to all of the terms and conditions of the Partnership
Agreement, as now in effect or hereafter amended. Without limitation, each of
the New Limited Partners acknowledges and agrees that it is bound by Article
XIV of the Partnership Agreement which provides for the arbitration of disputes
arising under the Partnership Agreement. Notwithstanding the foregoing, the
Partnership, the General Partner and each of the New Limited Partners
acknowledges and agrees that the provisions of Article XIV of the Partnership
Agreement shall not be applicable to disputes arising out of or relating to the
provisions of Paragraph 12 of the Contribution Agreement. BY INITIALING IN THE
SPACE BELOW, YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS
INCLUDED IN ARTICLE XIV "ARBITRATION OF DISPUTES" DECIDED BY NEUTRAL
ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU
MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL EXCEPT AS
SPECIFICALLY INCLUDED IN THIS "ARBITRATION OF DISPUTES" PROVISION. BY
INITIALING IN THE SPACE BELOW, YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO
DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THIS
"ARBITRATION OF DISPUTES" PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION
AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE
AUTHORITY OF CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS
ARBITRATION PROVISION IS VOLUNTARY. WE HAVE READ AND UNDERSTAND THE FOREGOING
AND AGREE TO SUBMIT DISPUTES
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ARISING OUT OF THE MATTERS INCLUDED IN THIS "ARBITRATION OF DISPUTES" PROVISION
TO NEUTRAL ARBITRATION.
(INITIALED) (INITIALED) (INITIALED)
----------- ----------- -----------
WT III WTA Tower II
(INITIALED) (INITIALED) (INITIALED) (INITIALED)
----------- ----------- ----------- -----------
Baybridge FPL, Trustee MFL, Trustee SLH, Trustee
4. The Partnership hereby issues to the New Limited Partners the
respective number of Partnership Partners the respective number of Partnership
Units set forth adjacent to the name of each of the New Limited Partners on
Schedule 2 attached hereto (the "Emeryville Additional Units").
5. The parties hereto hereby acknowledge that the Transferors have
made the Emeryville Capital Contribution to the Partnership and the Gross Asset
Value of the Emeryville Capital Contribution with respect to each New Limited
Partner is as set forth adjacent to the name of each of the New Limited
Partners on Schedule 3 attached hereto.
6. The General Partner hereby approves the acquisition of Rights by
each of the New Limited Partners with respect to the Emeryville Additional
Units and hereby grants to each of the New Limited Partners the Rights with
respect to the Emeryville Additional Units on the terms and subject to the
conditions and restrictions contained in Exhibit G to the Partnership
Agreement, provided that, notwithstanding anything to the contrary provided in
the Partnership Agreement or this Eighth Amendment, none of the New Limited
Partners shall have the right to exercise the Rights with respect to all or any
portion of the Emeryville Additional Units prior to the first anniversary of
the Closing (as defined in the Contribution Agreement). For purposes of Section
11.1 of the Partnership Agreement, the General Partner's approval and grant set
forth in this Paragraph 6 shall be deemed to have occurred prior to the New
Limited Partners' admission to the Partnership as Additional Limited Partners.
7. Each of the New Limited Partners hereby acknowledges and agrees
that it has relied fully upon the advice of its own legal counsel and/or
accountant in determining the tax consequences of the transactions contemplated
hereby and not upon any representations or advice by the General Partner or by
any other Partner, except to the extent expressly set forth in Paragraph 11 of
the Contribution Agreement. Each of the New Limited Partners hereby represents
and warrants to the Partnership and the General Partner that it (i) is
acquiring its respective portion of the Emeryville Additional Units for itself
for investment purposes only, and not with a view to any resale or distribution
of such Partnership Units, (ii) has been advised and understands that the
Emeryville Additional Units are registered under the Securities Act and all
applicable state securities laws, or unless exemptions from registration are
available, and (iii) has, either alone or with its "purchaser representative"
as that term is defined in Rule 501(h) under the Securities Act, such knowledge
and experience in financial and business matters that is capable of evaluating
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the merits and risks of its investment in the Partnership. Each of the New
Limited Partners hereby acknowledges that the partnership and the General
Partner have made available to such New Limited Partner, at a reasonable time
prior to its acquisition of the Emeryville Additional Units, the opportunity to
ask questions and receive answers concerning the terms and conditions of such
acquisition and to obtain any additional information which the Partnership
and/or the General Partner possessed or could acquire without unreasonable
effort or expense that is necessary to verify the accuracy of the information
furnished by the Partnership and the General Partner in connection with such
acquisition.
8. The following new Section 4.11 is hereby added to the
Partnership Agreement as follows:
4.11 PARTNER ASSUMPTION OF INDEBTEDNESS. Each Limited Partner
listed on Exhibit Y hereto unconditionally and severally guarantees to
the Debtor the full payment and performance of all of the Partnership's
present and future indebtedness and obligations under the Note or Notes
listed next to such Limited Partner's name on Exhibit Y and any other
Loan Documents relating to such Note or Notes, provided that,
notwithstanding anything to the contrary contained in this Section 4.11,
each Limited Partner's obligation shall be limited to the amount(s) set
for on Exhibit Y next to such Limited Partner's name (with respect to
each Limited Partner, an "Emeryville Limited Partner's Share") and shall
be limited to guaranteeing the payment and performance of only the Note
or Notes set forth on Exhibit Y next to such Limited Partner's name.
Exhibit Y may be amended from time to time to increase (but not
decrease) one or more Limited Partner's obligations, such amendment
needing the approval only of the Partnership and by only that Limited
Partner whose obligation is to be increased by such amendment. All such
indebtedness and obligations under such Loan Documents are referred to
in this Section 4.11 as the "Section 4.11 Indebtedness." Without
limiting the provisions of this Section 4.11, it is the Limited
Partners' and the Debtor's intent that each Limited Partner shall have
liability for such Emeryville Limited Partner's Share of the Section
4.11 Indebtedness to the same extent that the General Partner, as a
general partner of the Partnership, is liable for the Section 4.11
Indebtedness under the laws of the State of California. Each Emeryville
Limited Partner's Share of the Section 4.11 Indebtedness will be payable
by such Limited Partner to the Partnership as a Capital Contribution
immediately on written demand of Debtor in the event of any default of
Debtor (beyond the expiration of any applicable grace period) with
respect to the Section 4.11 Indebtedness or any part thereof.
Notwithstanding anything to the contrary contained in the Partnership
Agreement or the Bylaws or Articles of Incorporation of the General
Partner, as each may be amended from time to time, any decision by
Debtor hereunder, including a decision to make a demand on the Limited
Partners under this Section 4.11, shall require the majority vote of the
independent directors of the General Partner. Each Limited Partner
authorizes Debtor at any time in its
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discretion to alter any of the terms of the Section 4.11 Indebtedness
and to make such modifications to the Section 4.11 Indebtedness that
have the effect of releasing the Debtor from liability for all or any
part of the Section 4.11 Indebtedness. Debtor and the Note Holders may
take any of the foregoing actions upon any terms and conditions as the
Debtor and the Note Holders may elect, without giving notice to any
Limited Partner or obtaining the consent of any Limited Partner and
without affecting the liability of any Limited Partner under this
Section 4.11. It is understood and agreed by each Limited Partner that
until the Section 4.11 Indebtedness is fully paid and until each and
every term, covenant and condition of this Section 4.11 is fully
performed, no Limited Partner shall be released by any act or event
which might, but for this provision of this Section 4.11, be deemed a
legal or equitable discharge of a surety, or by reason of any waiver,
extension, modification, forbearance or delay or other act or omission
of the Note Holders' or the Partnership's failure to proceed promptly or
otherwise as against the General Partner or Debtor's failure to proceed
promptly or otherwise as against any Limited Partner or Note Holder's
failure to proceed promptly or otherwise against the Debtor, or by
reason of any action taken or omitted or circumstance which may or might
vary the risk or affect the rights or remedies of any Limited Partner as
against Debtor or the Note Holders, or by reason of any Limited Partner
as against Debtor or the Note Holders, or by reason of any further
dealings between the Debtor and the Note Holders, whether relating to
the Section 4.11 Indebtedness, the Debt Offering or otherwise, and each
Limited Partner hereby expressly waives and surrenders any defense to
its liability hereunder based upon any of the foregoing acts, omissions,
things, agreements, waivers or any of them; it being the purpose and
intent of this Section 4.11 that the obligations of each Limited Partner
hereunder are absolute and unconditional under any and all
circumstances. Each Limited Partner's obligations under this Section
4.11 are independent of those of Debtor. The Debtor's rights under this
Section 4.11 will not be exhausted by any action by it until all of the
Section 4.11 Indebtedness and all other obligations of the Partnership
under the Notes have been fully paid and performed and the period of
time has expired during which any payment made to the Note Holders by
the Debtor under the Notes or to the Debtor by each Limited Partner
under this Section 4.11 may be determined to be a Preferential Payment
(as defined below) without such determination, in fact being made. Each
Limited Partner further agrees that to the extent all or any part of any
payment made to the Note Holders under the Notes or by a Limited Partner
under this Section 4.11 is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid by the
recipient thereof or paid over to a trustee, receiver or any other
entity, whether under any bankruptcy act or otherwise (any such payment
is hereinafter referred to as a "Section 4.11 Preferential Payment"),
then this Section 4.11 shall continue to be effective or shall be
reinstated, as the case may be, and, to the extent of such payment or
repayment, the Limited
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Partners' obligations under this Section 4.11 intended to be satisfied by such
Section 4.11 Preferential Payment shall be revived and continued in full force
and effect as if said Section 4.11 Preferential Payment had not been made. Each
Limited Partner waives: (a) all statutes of limitations as a defense to any
action brought against any Limited Partner pursuant to this Section 4.11, to
the fullest extent permitted by law; (b) any defense based upon any legal
disability of Debtor or any discharge or limitation of the liability of Debtor
to the Note Holders, whether consensual or arising by operation of law or any
bankruptcy, reorganization, receivership, insolvency, or debtor-relief
proceeding, or from any other cause; (c) presentment, demand, protest and
notice of any kind, provided that the foregoing waiver shall not be construed
to waive any demand or notice to the Limited Partners expressly provided for in
this Section 4.11; and (d) any defense based upon or arising out of any defense
which Debtor may have to the payment or performance of any part of the Section
4.11 Indebtedness. Notwithstanding any other provision of this Section 4.11 to
the contrary, each Limited Partner may now have or hereafter acquire against
Debtor, or each of them, or any other Limited Partner, or any other person, of
all or any of the Section 4.11 Indebtedness that arise from the existence or
performance of such Limited Partner's obligations under this Section 4.11, the
Notes or any of the Loan Documents (all such claims and rights are referred to
as the "Emeryville Limited Partner's Conditional Rights"), including, without
limitation, any right of subrogation, reimbursement, exoneration, contribution,
or indemnification, any right to participate in any claim or remedy of the
Partnership against the General Partner or the Note Holders against the Debtor,
whether or not such claim, remedy or right arises in equity or under contract,
statute or common law, by any payment made hereunder or otherwise, including
without limitation, the right to take or receive from Debtor, directly or
indirectly, in cash or other property or by setoff or in any other manner,
payment or security on account of such claim or other rights. If,
notwithstanding the foregoing provisions, any amount shall be paid to any
Limited Partner on account of any such Emeryville Limited Partner's Conditional
Rights and either (i) such amount is paid to such Limited Partner at any time
when the Section 4.11 Indebtedness shall not have been paid or performed in
full, or (ii) regardless of when such amount is paid to such Limited Partner,
any payment made by Debtor to the Note Holders or by a Limited Partner under
this Section 4.11 is at any time determined to be a Section 4.11 Preferential
Payment, then such amount paid to such Limited Partner shall be held in trust
for the benefit of Debtor and the Note Holders, as their interests may appear,
and shall forthwith be paid to the Partnership as a Capital contribution to be
credited and applied upon the Section 4.11 Indebtedness, whether matured or
unmatured, in such order as the Debtor, in its sole and absolute discretion,
shall determine. To the extent that any of the provisions of this Section 4.11
shall not be
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enforceable, each Limited Partner agrees that until such time as the
Section 4.11 Indebtedness has been paid and performed in full and the
period of time has expired during which any payment made by Debtor to
the Note Holders or by a Limited Partner under this Section 4.11 may be
determined to be a Section 4.11 Preferential Payment, the Emeryville
Limited Partner's Conditional Rights to the extent not validly waived
shall be subordinate to the Note Holders' right to full payment and
performance of the Section 4.11 Indebtedness, and such Limited Partner
shall not enforce such Emeryville Limited Partner's Conditional Rights
during such period. Each Limited Partner assumes full responsibility
for keeping fully informed of the financial condition of Debtor and each
other Limited Partner and all other circumstances affecting Debtor's
ability to perform its obligations under the Loan Documents and each
other Limited Partner's ability to perform its obligations hereunder and
agrees that neither Debtor nor the Note Holders will have any duty to
report to any Limited Partner any information which Debtor or the Note
Holders receive about Debtor's or any Limited Partner's financial
condition or any circumstances being on Debtor's or any Limited
Partner's ability to perform. Upon a default of the Partnership under
the Loan Documents, the Note Holders may elect to compromise, or adjust
any part of the Section 4.11 Indebtedness, or make any other
accommodation with the Debtor, or exercise any other remedy against the
Debtor. No such action by the Note Holders will release or limit the
liability of any Limited Partner. In addition to all rights of setoff
or lien against any moneys, securities or other property of any Limited
Partner given to the Partnership by law, the Partnership shall have a
right of setoff against all distributions to which a Limited Partner may
be entitled from the Partnership, and every such right of setoff may be
exercised without demand upon or notice to any Limited Partner (except
the notice expressly provided for above). No right of setoff shall be
deemed to have been waived by any act or conduct on the part of the
Partnership or by any neglect to exercise such right of setoff, or by
any delay in doing so; and every right of setoff shall continue in full
force and effect until specifically waived or released by an instrument
in writing executed by the Partnership or until a Limited Partner has
satisfied in full all of such Limited Partner's obligations under this
Section 4.11. In the event that any Limited Partner shall advance or
become obligated to pay any sums toward the Section 4.11 Indebtedness,
or in the event that for any reason whatsoever Debtor is now, or shall
hereafter become, indebted to any Limited Partner, each Limited Partner
agrees that the amount of such sums and of such indebtedness and all
interest thereon shall at all times be subordinate as to lien, time of
payment and in all other respects to the full and prior repayment to
Note Holders of the Section 4.11 Indebtedness, and no Limited Partner
shall be entitled to enforce or receive payment thereof until all such
sums owing to the Note Holders have been paid in full and the period of
time has expired during which any payment made by Debtor to the Note
Holders or the
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Limited Partners pursuant to this Section 4.11 may be determined to be a
Section 4.11 Preferential Payment. Each Limited Partner agrees to pay
its pro rata share (based on the ratio that each such Emeryville Limited
Partner's Share bears to the total of all of the Emeryville Limited
Partners' Shares) of Debtor's reasonable out-of-pocket costs and
expenses, including but not limited to legal fees and disbursements,
incurred in any effort to collect or enforce any of the Section 4.11
Indebtedness or this Section 4.11, whether or not any lawsuit is filed.
Any payment made by any Limited Partner under this Section 4.11 shall be
deemed to be a Capital Contribution by said Limited Partner to the
Partnership. This Section 4.11 shall be governed by California law, and
may be amended only by a written instrument executed by the Limited
Partners listed on Exhibit Y hereto and Debtor; provided, however, that
a Emeryville Limited Partner's Share may be increased (but not
decreased) pursuant to a written instrument executed by the Debtor and
such Limited Partner so long as such action does not increase or
decrease any other Emeryville Limited Partner's Share. The provisions
of this Section 4.11 shall bind and benefit the heirs' executors,
administrators, legal representatives, successors and assigns of each
Limited Partner and Debtor. Whenever the context requires, all terms
used in the singular will be construed in the plural and vice versa, and
each gender will include each other gender. Notwithstanding anything to
the contrary provided herein, in no event shall any Limited Partner be
entitled to the issuance of any Additional Units as a result of any
contribution made by such Limited Partner pursuant to this Section 4.11,
nor shall the Percentage Interests of the Partners be adjusted as a
result thereof. Subject to the foregoing sentence, if any Limited
Partner makes a payment under that certain Reimbursement Agreement
between the Limited Partners listed on Exhibit Y hereto and the General
Partner, dated January __, 1997, such payment shall for all other
purposes be deemed to constitute a Capital Contribution to the
Partnership pursuant to this Section 4.11.
9. The following new Section 4.12 is hereby added to the
Partnership Agreement as follows:
4.12 NON-DISCRIMINATION. The Partnership and the
General Partner agree to exercise all of their rights under said
Sections 4.10 and 4.11 in a non-discriminatory manner with respect to
the Limited Partners and in a manner that is not disproportionate to any
of the Limited Partner's Shares of the Indebtedness (including, for the
purposes of this Section 4.12, any of the Emeryville Limited Partner's
Shares of the Section 4.11 Indebtedness), provided that the foregoing
shall not impair or limit either the Partnership's or the General
Partner's right to exercise all of their rights under said Sections 4.10
and 4.11 to the fullest extent permitted under this Agreement.
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10. The following new Section 4.13 is hereby added to the
Partnership Agreement as follows:
4.13 RIGHT TO ASSUME OTHER INDEBTEDNESS. In the event
that any of the Guarantees defined in the Reimbursement Agreements that
are referenced in the last sentences of Sections 4.10 and 4.11 of this
Agreement, respectively, are released or any of the Notes are repaid or
otherwise extinguished, the Limited Partners that have agreed to
reimburse the General Partner for an amount paid by the General Partner
with respect to such Guarantee and those Limited Partners that have
guaranteed the Partnership's obligations under such Note (all such
Limited Partners being referred to herein as "Section 4.13 Limited
Partners) shall have the right to agree to reimburse the General Partner
for amounts paid by the General Partner with respect to any other
Guarantee or any replacement Guarantee and to guaranty the Partnership's
obligations under any other Note or any replacement Note pro rata based
on (i) that portion of the Guarantees with respect to which no Person
has agreed to reimburse the General Partner and that portion of the
indebtedness under the Notes with respect to which no Person has agreed
to guaranty the Partnership's obligations and (ii) the relative amounts
that the Section 4.13 Limited Partners had agreed to reimburse the
General Partner with respect to such released Guarantee(s) and had
agreed to guaranty the Partnership's obligations with respect to such
repaid or otherwise extinguished Note(s). Nothing contained in this
Section 4.13 shall be construed in any manner as requiring the
Partnership to incur any indebtedness (including, without limitation, by
executing any replacement Note) or the Company to guarantee any
indebtedness (including, without limitation, by executing any
replacement Guarantee).
11. Exhibit M to the Partnership Agreement is hereby
amended to add the addresses for the New Limited Partners that are set forth on
Schedule 4 attached hereto.
12. Each of the New Limited Partners hereby acknowledges
that, in connection with any proposed merger, tender offer or acquisition of
the Company or the Partnership or similar event, the General Partner's
obligations to its shareholders may conflict with the interests of the Limited
Partners. Each of the New Limited Partners hereby further acknowledges that
such New Limited Partner has consulted with its advisors, including legal
counsel, regarding such conflicts and understands such conflicts. Each of the
New Limited Partners hereby waives, and agrees that it shall not pursue, any
claims against the General Partner to the extent that the General Partner is
fulfilling its obligations to its shareholders in connection with any such
proposed merger, tender offer, acquisition or similar event and agrees, to the
extent that the General Partner is fulfilling its obligations to its
shareholders in connection with any such proposed merger, tender offer,
acquisition or similar event and agrees, to the extent that the General Partner
is fulfilling its obligations to its shareholders, not to enjoin or to attempt
to enjoin any such proposed merger, tender offer, acquisition or similar event.
13. This Eighth Amendment may be executed in two or more
counterparts, each of which shall be deemed originals, and all of which taken
together shall constitute one
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instrument. By executing this Eighth Amendment below, each signatory hereby
agrees that a facsimile signature shall be deemed to have the same effect as an
original signature.
14. This Eighth Amendment shall be governed by and construed in
conformity with the laws of the State of California.
15. Except as specifically provided herein, the Partnership
Agreement shall remain in full force and effect.
16. The provisions of the Contribution Agreement and the parties
obligations thereunder shall not be merged into the provisions of this Eighth
Amendment and shall survive the execution and delivery of this Eighth Amendment
to the extent that the Contribution Agreement provides that the parties
obligations thereunder shall survive the Closing.
IN WITNESS WHEREOF, this Eighth Amendment is hereby entered into among
the undersigned parties as of the Effective Date.
GENERAL PARTNER; XXXXXXX PROPERTIES, INC.
a Maryland corporation
By: /s/ [SIG]
-------------------------------
Its: Vice President
------------------------------
EXISTING LIMITED PARTNERS:
/s/ Xxxxxx X. Xxxxxxx, Xx.
----------------------------------
Xxxxxx X. Xxxxxxx, Xx.
/s/ Xxxxxx X. Xxxxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxxxx
/s/ Xxxx X. Xxxxxx
----------------------------------
Xxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxxx
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instrument. By executing this Eighth Amendment below, each signatory hereby
agrees that a facsimile signature shall be deemed to have the same effect as an
original signature.
14. This Eighth Amendment shall be governed by and construed in
conformity with the laws of the State of California.
15. Except as specifically provided herein, the Partnership
Agreement shall remain in full force and effect.
16. The provisions of the Contribution Agreement and the parties
obligations thereunder shall not be merged into the provisions of this Eighth
Amendment and shall survive the execution and delivery of this Eighth Amendment
to the extent that the Contribution Agreement provides that the parties
obligations thereunder shall survive the Closing.
IN WITNESS WHEREOF, this Eighth Amendment is hereby entered into among
the undersigned parties as of the Effective Date.
GENERAL PARTNER: XXXXXXX PROPERTIES, INC.
a Maryland corporation
By: ______________________________
Its: ______________________________
EXISTING LIMITED PARTNERS:
-----------------------------------
Xxxxxx X. Xxxxxxx, Xx.
-----------------------------------
Xxxxxx X. Xxxxxxxxx
-----------------------------------
Xxxx X. Xxxxxx
/s/ XXXXX X. XXXXXXX
-----------------------------------
Xxxxx X. Xxxxxxx
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/s/ XXXXX X. XXXXXXX
-----------------------------------
Xxxxx X. Xxxxxxx
/s/ XXXXX X. XXXXXX
-----------------------------------
Xxxxx X. Xxxxxx
/s/ XXXX X. XXXXXX
-----------------------------------
Xxxx X. Xxxxxx
NEW LIMITED PARTNERS: WATERGATE TOWER ASSOCIATES,
a California limited partnership
By: /s/ X X XXXXXXX
-------------------------------
X.X. Xxxxxxx
General Partner
TOWER II,
a California limited partnership
By: /s/ X X XXXXXXX
-------------------------------
X.X. Xxxxxxx
General Partner
WATERGATE TOWER III ASSOCIATES,
a California limited partnership
By: /s/ X X XXXXXXX
-------------------------------
X.X. Xxxxxxx
General Partner
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BAYBRIDGE OFFICE PLAZA ASSOCIATES,
a California limited partnership
By: /s/ X X XXXXXXX
-------------------------------
X.X. Xxxxxxx
General Partner
/s/ X X XXXXXXX
-------------------------------
X.X. XXXXXXX
as Trustee of The Lathrop Trust
/s/ XXXXXX XXX XXXXXXX
-------------------------------
XXXXXX XXX XXXXXXX
as Trustee of The Lathrop Trust
/s/ XXXXXX X. XXXX
-------------------------------
XXXXXX X. XXXX
as Trustee of The Lathrop Trust
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SCHEDULE 1 TO EIGHTH AMENDMENT
LIST OF NEW LIMITED PARTNERS
Watergate Tower Associates, a California limited partnership
Tower II, a California limited partnership
Watergate Tower III Associates, a California limited partnership
Baybridge Office Plaza Associates, a California limited partnership
X.X. Xxxxxxx, Xxxxxx Xxx Xxxxxxx and Xxxxxx X. Xxxx, as Trustees of The Lathrop
Trust (u/t/d November 19, 1993)
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Schedule 1A to Eighth Amendment
List of Partners and Interest Holders
X.X. Xxxxxxx, Xxxxxx Xxx Xxxxxxx and Xxxxxx X. Xxxx, as Trustees of The Lathrop
Trust (u/t/d November 19, 1993)
X. Xxxxxx Xxxxxxx
Xxxxxx Xxx Xxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxx X. Xxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxx
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SCHEDULE 2 TO EIGHTH AMENDMENT
ALLOCATION OF EMERYVILLE PARTNERSHIP UNITS
New Limited Partners Emeryville Partnership Units**
----------------------------------------- ------------------------------
Watergate Tower Associates, 252,537
a California limited partnership
Tower II, a California limited partnership 302,026
Watergate Tower III Associates, 27,603
a California limited partnership
Baybridge Office Plaza Associates, 84,823
a California limited partnership
X.X. Xxxxxxx, Xxxxxx Xxx Xxxxxxx and 98,141
Xxxxxx X. Xxxx, as Trustees of
The Lathrop Trust
(u/t/d November 19, 1993)
** Subject to post-closing adjustments
17
Schedule 3 to Eighth Amendment
Gross Asset Values
New Limited Partner Gross Asset Values
------------------- ------------------
Watergate Tower Associates, a California $21,200,000
limited partnership
Tower II, a California limited partnership $25,800,000
Watergate Tower III Associates, $67,500,000
a California limited partnership
Baybridge Office Plaza Associates $7,300,000
a California limited partnership
X.X. Xxxxxxx, Xxxxxx Xxx Xxxxxxx and $3,400,000
Xxxxxx X. Xxxx, as Trustees of
The Lathrop Trust (u/t/d/ November 19, 1993)
18
Schedule 4 to Eighth Amendment
Addresses of New Limited Partners
New Limited Partners Addresses
-------------------- ---------
Watergate Tower Associates, a California c/o X.X. Xxxxxxx
limited partnership 0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxxxx 00000
Tower II, a California limited partnership c/o X.X. Xxxxxxx
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxxxx 00000
Watergate Tower III Associates, a California c/o X.X. Xxxxxxx
limited partnership 0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxxxx 00000
Baybridge Office Plaza Associates, a c/o F.P. Lathrop
California limited partnership 0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxxxx 00000
X.X. Xxxxxxx, Xxxxxx Xxx Xxxxxxx and Xxxxxx c/o X.X. Xxxxxxx
X. Xxxx, as Trustees of The Lathrop Trust 0000 Xxxxxx Xxxxxx, Xxxxx 0000
(u/t/d November 19, 1993) Xxxxxxxxxx, Xxxxxxxxxx 00000
19
Exhibit Y to Eighth Amendment
Emeryville Limited Partner's Shares
New Limited Partners Emeryville Limited Partner's Shares
-------------------- -----------------------------------
Watergate Tower Associates, a California $2,510,000
limited partnership
Tower II, a California limited partnership $4,477,000
Watergate Tower III Associates, a California $50,689,000
limited partnership
Baybridge Office Plaza Associates, a $1,500,000
California limited partnership
