EXHIBIT 10.1B
SECOND AMENDMENT TO
LIMITED PARTNERSHIP AGREEMENT
OF
THE XXXXX LIMITED PARTNERSHIP
THIS SECOND AMENDMENT TO LIMITED PARTNERSHIP AGREEMENT OF THE XXXXX
LIMITED PARTNERSHIP (this "Amendment"), dated as of May 11, 2001, is entered
into by The Xxxxx Corporation, a Delaware corporation, as general partner (the
"General Partner") of The Xxxxx Limited Partnership (the "Partnership"), for
itself and on behalf of the limited partners of the Partnership.
WHEREAS, the General Partner has entered into a Securities Purchase
Agreement, dated as of April 27, 2001, pursuant to which the General Partner has
issued shares of a newly created series of capital stock, designated Series A
Cumulative Convertible Preferred Stock (the "SERIES A PREFERRED STOCK");
WHEREAS, the General Partner has previously amended the Partnership
Agreement (as defined below) to establish a new class of Units, entitled Series
A Cumulative Convertible Preferred Partnership Units (the "SERIES A PREFERRED
PARTNERSHIP UNIT");
WHEREAS, Section 4.2(A) of the Limited Partnership Agreement of the
Partnership, as amended (as heretofore further amended, the "Partnership
Agreement") authorizes the General Partner to cause the Partnership to issue
additional Partnership Units in one or more classes or series, with such
designations, preferences and relative, participating, optional or other special
rights, powers and duties, all as determined by the General Partner;
WHEREAS, the General Partner is entering into a First Amendment to
Securities Purchase Agreement, dated as of May 11, 2001, and an Amended and
Restated Ownership Limit Waiver Agreement, dated as of May 11, 2001, pursuant to
which the General Partner has agreed to cause the Partnership to issue units of
a newly created series of Partnership Units, designated Series A-2 Cumulative
Convertible Preferred Partnership Unit (the "SERIES A-2 PREFERRED PARTNERSHIP
UNIT"), in lieu of or in exchange for Series A Preferred Stock;
WHEREAS, in connection with the issuance of the Series A-2 Preferred
Partnership Unit, the General Partner desires to amend certain of the terms of
the Series A Preferred Partnership Unit;
WHEREAS, pursuant to the authority granted to the General Partner
pursuant to Section 11.1(A) of the Partnership Agreement, the General Partner
desires to amend the Partnership Agreement (i) to establish a new class of
Units, to be entitled Series A-2 Cumulative Convertible Preferred Partnership
Units, and to set forth the designations, rights, powers, preferences and duties
of such Series A-2 Preferred Partnership Units, which are substantially the same
as those of the Series A Preferred Stock, and (ii) to amend and restate Section
4.2(D) and Exhibit 4 to the Partnership Agreement to, among
1
other things, re-designate the Series A Preferred Partnership Units as Series
A-1 Cumulative Convertible Preferred Partnership Units.
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the General Partner hereby amends the Partnership Agreement, as
follows:
1. AMENDMENT TO ARTICLE II. The second sentence of the definition of
"Partnership Unit" appearing Article II of the Partnership Agreement is hereby
deleted and the following sentence is inserted in its place:
The ownership of Partnership Units may be evidenced by such form of
certificate as the General Partner may adopt from time to time on
behalf of the Partnership.
2. AMENDMENTS TO SECTION 4.2.
(A) Section 4.2(D) of the Partnership Agreement is hereby
amended and restated in its entirety as follows:
D. Series A-1 Preferred Partnership Units. Under the authority
granted to it by Section 4.2(A) hereof, the General Partner hereby
establishes an additional class of Preferred Partnership Units
entitled "Series A-1 Cumulative Convertible Preferred Partnership
Units" (the "SERIES A-1 PREFERRED PARTNERSHIP UNITS"). Series A-1
Preferred Partnership Units shall have the designations,
preferences, rights, powers and duties as set forth in EXHIBIT 4
hereto.
(B) Section 4.2 of the Partnership Agreement is hereby further
amended by adding after Section 4.2(D) the following section:
E. Series A-2 Preferred Partnership Units. Under the authority
granted to it by Section 4.2(A) hereof, the General Partner hereby
establishes an additional class of Preferred Partnership Units
entitled "Series A-2 Cumulative Convertible Preferred Partnership
Units" (the "SERIES A-2 PREFERRED PARTNERSHIP UNITS"). Series A-2
Preferred Partnership Units shall have the designations,
preferences, rights, powers and duties as set forth in EXHIBIT 5
hereto.
3. AMENDMENT AND RESTATEMENT OF SECTION 6.8(D). Section 6.8(D) is
hereby amended and restated in its entirety as follows:
(D) Notwithstanding any other provisions of this Agreement or
the Act, any action of the General Partner on behalf of the Partnership or any
decision of the General Partner to refrain from acting on behalf of the
Partnership, undertaken in the good faith belief that such action or omission is
necessary or advisable in order (i) to protect the ability of the General
Partner to continue to qualify as a REIT or (ii) to avoid the General Partner
incurring any taxes under Section 857 or Section 4981 of the Code, is
2
expressly authorized under this Agreement. Any such action or omission is deemed
approved by all of the Limited Partners, other than the Limited Partners who are
holders of Series A-2 Preferred Partnership Units, and the General Partner shall
use its best efforts to avoid adversely affecting the rights, including economic
interests, of the holders of Series A-2 Preferred Partnership Units in taking
any such action.
4. AMENDMENT TO SECTION 8.4. The following Section 8.4(F) shall be
inserted as a new subsection following Section 8.4(E):
(F) Notwithstanding Sections 8.4(A) - (E), Limited Partners
who are holders of Series A-2 Preferred Partnership Units may transfer all or
any portion of such units without obtaining the consent of the General Partner,
provided that no Transfer of Series A-2 Preferred Partnership Units shall be
made if such Transfer would (i) in the opinion of Partnership counsel, cause the
Partnership to be terminated for federal income tax purposes or to be treated as
an association taxable as a corporation (rather than a partnership) for federal
income tax purposes, unless counsel to the holders of Series A-2 Preferred
Partnership Units, reasonably acceptable to the General Partner, shall provide
an opinion reasonably acceptable to the General Partner that such Transfer would
not cause such termination and partnership tax treatment; (ii) be effected
through an "established securities market" or a "secondary market (or the
substantial equivalent thereof)" within the meaning of Code Section 7704; (iii)
in the opinion of Partnership counsel, such Transfer would violate the
provisions of applicable securities laws; or (iv) violate any law, rule or
regulation binding on the Partnership.
5. AMENDMENTS TO SECTION 8.5.
(A) Section 8.5 (A)(3) shall be amended and restated in its
entirety as follows:
(3) The assignor or transferee pays all costs and fees
incurred or charged by the Partnership to effect the Transfer and
substitution except in the case of a transfer of Series A-2 Preferred
Partnership Units, in which case the assignor or transferee shall pay only
transfer taxes incurred by the Partnership to effect the Transfer; and
(B) Section 8.5(A)(4) shall be amended and restated in its
entirety as follows:
(4) The assignor or transferee obtains the written Consent of
the General Partner, which may be given or withheld in its sole and
absolute discretion, except that such consent shall not be required in the
case of a transfer of Series A-2 Preferred Partnership Units.
6. EXHIBITS TO PARTNERSHIP AGREEMENT.
A. The General Partner shall maintain the information set
forth in EXHIBIT 1 to the Partnership Agreement, as such information shall
change from time to time, in such form as the General Partner deems appropriate
for the conduct of the
3
Partnership's affairs, and EXHIBIT 1 shall be deemed amended from time to time
to reflect the information so maintained by the General Partner, whether or not
a formal amendment to the Partnership Agreement has been executed amending such
EXHIBIT 1. In addition to the designation of Series A-2 Preferred Partnership
Units pursuant to this Second Amendment, such information shall reflect (and
EXHIBIT 1 shall be deemed amended from time to time to reflect) the issuance of
any additional Partnership Units to the General Partner or any other Person, the
transfer of Partnership Units and the redemption of any Partnership Units, all
as contemplated herein.
B. EXHIBIT 4 to the Partnership Agreement is hereby amended
and restated in its entirety by the EXHIBIT 4 attached hereto.
C. The Partnership Agreement is hereby amended by attaching
thereto as EXHIBIT 5 the EXHIBIT 5 attached hereto.
4. CERTAIN CAPITALIZED TERMS. All capitalized terms used in this
Second Amendment and not otherwise defined shall have the meanings assigned in
the Partnership Agreement. Except as modified herein, all terms and conditions
of the Partnership Agreement shall remain in full force and effect, which terms
and conditions the General Partner hereby ratifies and affirms.
5. SEVERABILITY: If any term or other provision of this Second
Amendment is held by a court of competent jurisdiction or other authority to be
invalid, void or unenforceable, the remainder of the terms and provisions of
this Second Amendment shall remain in full force and effect and shall in no way
be effectively impaired or invalidated.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
4
IN WITNESS WHEREOF, the undersigned has executed this Second
Amendment to Limited Partnership Agreement as of the date first set forth above.
THE XXXXX CORPORATION,
as General Partner of
The Xxxxx Limited Partnership
and on behalf of existing Limited Partners
By: /s/ Xxxxx X. XxXxxxxx
----------------------------------------
Name: Xxxxx X. XxXxxxxx
---------------------------------------
Title: President and Chief Operating Officer
--------------------------------------
5
