Exhibit 3.1
AMENDMENT NO. 1
TO THE
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
XXXX-XXXX REALTY, L.P.
(Under and Pursuant to Section 17-202 of the
Delaware Revised Uniform Limited Partnership Act)
The undersigned, being the general partner of Xxxx-Xxxx Realty, L.P. does
hereby certify:
FIRST: The name of the limited partnership is: Xxxx-Xxxx Realty, L.P.
SECOND: Article 10.3 of the Second Amended and Restated Agreement of
Limited Partnership Certificate of Limited Partnership is hereby amended and
restated in its entirety to read as follows:
(a) GRANT OF RIGHTS. The Partnership does hereby grant to
the Limited Partners and the Limited Partners do hereby accept the
right, but not the obligation (such right shall be referred to
hereinafter sometimes as the "Redemption Rights"), to require the
Partnership to redeem all or part of their OP Units or other classes
of Partnership Units as may be designated by the Partnership for
shares of Common Stock and/or cash, as determined by the Partnership,
in its sole discretion, at any time or from time to time after the
date which is one (1) year after the date on which such Partnership
Units were issued (or such later date after the date of issuance as
may be specified in the Certificate of Designation of any class of
Partnership Units or otherwise determined by the General Partner) on
the terms and subject to the conditions and restrictions contained in
this Section 10.3. In the event that the Partnership elects to redeem
the OP Units or other classes of
Partnership Units for shares of Common Stock as opposed to cash, then
the Partnership shall direct the General Partner to issue and deliver
such shares of Common Stock to the Exercising Partner pursuant to the
terms set forth in Section 10.3(c) below, in which case, such
transaction shall be treated, for federal income tax purposes, as a
transfer by the Exercising Partner of such OP Units or other classes
of Partnership Units to the General Partner in exchange for the shares
of Common Stock. For purposes of this Section 10.3, OP Units issued
upon the redemption of Series A or Series B Preferred Units shall be
deemed to have been issued on the date such Series A or Series B
Preferred Units were issued.
(b) DELIVERY OF EXERCISE NOTICES. Any one or more Limited
Partners ("Exercising Partners") may, subject to the limitations set
forth in this Section 10.3, deliver to the General Partner, on behalf
of the Partnership, written notice in the form attached to the Unit
Certificate as Attachment 1 (the "Exercise Notice") pursuant to which
such Exercising Partners elect to exercise their Redemption Rights
with respect to all or any portion of their Partnership Units. The
Exercise Notice shall specify the specific number of Partnership Units
which the Limited Partner intends to require the Partnership to redeem
for shares of Common Stock and the specific number of Partnership
Units which the Limited Partner intends to require the Partnership to
redeem for cash. Only whole numbers of Partnership Units may be
redeemed. Once delivered, the Exercise Notice shall be irrevocable,
subject to payment by the Partnership of shares of Common Stock and/or
cash, as determined by the Partnership in its sole discretion, in
respect of such Partnership Units in accordance with the terms hereof.
(c) Assumption by General Partner. If the Partnership
elects to redeem the OP Units or other classes of Partnership Units
for shares of Common Stock as opposed to cash pursuant to the terms
set forth in Section 10.3(a) hereof, then the General Partner, acting
as a distinct legal entity, shall assume directly the obligation with
respect thereto and shall satisfy the Exercising Partner's exercise of
a Redemption Right by issuing and delivering to the Exercising Partner
shares of Common Stock, as determined in accordance with the
provisions of Section 10.3(e) below, whereupon the General Partner
shall acquire the Offered Units and shall be treated for all purposes
of this Agreement as the owner of such Offered Units.
(d) Limitation on Exercise of Redemption Rights.
Redemption Rights may be exercised at any time and from time to time
after the date which is one (1) year after the date on which such
Partnership Units were issued (or such later date after the date of
issuance as may be specified in the Certificate of Designation of any
class of Partnership Units or otherwise determined by the General
Partner), subject to the following limitations:
(i) A Limited Partner may not exercise its Redemption
Rights pursuant to any one particular Exercise Notice for less
than One Thousand (1,000) Partnership Units or, if such Limited
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Partner holds less than One Thousand (1,000) Partnership Units,
all of the Partnership Units held by such Limited Partner;
(ii) A Limited Partner shall not have the right to
exercise its Redemption Rights hereunder if, in the opinion of
counsel selected by the General Partner, in its sole and absolute
discretion, such exercise and/or issuance of shares of Common
Stock may or would (A) violate the General Partner's Articles of
Incorporation, as amended from time to time, (B) cause the
General Partner to fail any one or more of the REIT Requirements
or (C) constitute a violation of applicable securities laws; and
(iii) Each Limited Partner acknowledges and agrees that
the issuance of shares of Common Stock pursuant to the Redemption
Rights will not be registered under the Securities Act of 1933,
as amended (the "Act"), or any state securities laws.
Accordingly, shares of Common Stock issued to such Limited
Partner may be required to be held indefinitely and the General
Partner shall have no obligation to register such shares under
the Act or any state securities laws unless required to do so
pursuant to a separate written agreement entered into by the
General Partner at the time of the issuance. In addition, such
Limited Partner will be required to meet such other requirements
and to provide such other information and representations as the
General Partner may require, which are required in the opinion of
its counsel to lawfully allow it to issue such shares without
registration under the Act and any applicable state securities
laws. Each Limited Partner acknowledges that the certificates
representing shares of Common Stock issued will also bear a
legend with respect to any restrictions on transfer required in
the opinion of counsel for the General Partner. The General
Partner acknowledges that the Limited Partners have been granted
the right, in certain circumstances and subject to certain
limitations, to require the registration under the Act of the
shares of Common Stock issued pursuant to the Redemption Rights.
(e) COMPUTATION OF NUMBER OF EXCHANGE SHARES AND/OR CASH
TO BE PAID. Each Partnership Unit which is to be redeemed for shares
of Common Stock shall be redeemed for one share of Common Stock, as
adjusted from time to time as provided in Section 10.3(i). Each
Partnership Unit which is to be redeemed for cash shall be redeemed
for
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an amount of cash equal to the Current Per Share Market Price
(determined as of the Trading Day immediately preceding the date upon
which the closing of the redemption of Offered Units is to occur).
Notwithstanding anything contained herein to the contrary, the
Partnership, in its sole and absolute discretion, shall have the right
either (i) to cause the General Partner, acting in its individual
legal capacity, to deliver shares of Common Stock to each Exercising
Partner in lieu of all or any portion of the cash requested by such
Exercising Partner in a transaction which, for federal income tax
purposes, the Partnership, the General Partner and the Exercising
Partner acknowledge, and shall treat, as a transfer by the Exercising
Partner of its Offered Units to the General Partner in exchange for
the shares of such Common Stock, and the number of which shares of
Common Stock shall be determined pursuant to the first sentence of
this Section 10.3(e) or (ii) to pay cash to each Exercising Partner in
lieu of all or any portion of the number of shares of Common Stock
requested by such Exercising Partner, the amount of such cash per
Partnership Unit shall be determined pursuant to the second sentence
of this Section 10.3(e). No fractional shares of Common Stock shall
be issued in return for Partnership Units. If more than one
Partnership Unit shall be requested to be redeemed at the same time by
the same Limited Partner, the number of full shares of Common Stock
that shall be issuable upon the redemption thereof shall be computed
on the basis of the aggregate number of shares of Common Stock
represented by the Partnership Units so presented. If any fraction of
a share of Common Stock would, except for the provisions of this
Section 10.3(e), be issuable on the redemption of any Partnership
Units (or specified portion thereof), the Partnership shall pay an
amount in cash equal to the Current Per Share Market Price (determined
as of the Trading Day immediately preceding the date upon the closing
of the Redemption of the Offered Units is to occur), multiplied by
such fraction.
(f) CLOSING; DELIVERY OF ELECTION NOTICE. The closing
of the redemption of Offered Units shall, unless otherwise mutually
agreed, be held at the principal offices of the General Partner, on
the date agreed to by the Partnership and the Exercising Partners,
which date shall in no event be later than: (i) ten (10) business days
after the date of delivery of the Exercise Notice to the General
Partner, on behalf of the Partnership, or (ii) the first date upon
which all legal and other conditions with respect to such redemption
have been satisfied (which shall include the expiration or termination
of any applicable waiting periods).
(g) CLOSING DELIVERIES. At the closing of the
redemption of Offered Units, (i) the Exercising Partners shall execute
and deliver (A) proper instruments of transfer and assignment of the
Offered Units, (B) a Unit Certificate or Unit Certificates
representing the number of Offered Units to be so redeemed and (C)
representations and warranties with
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respect to their due authority to sell all of the right, title and
interest in and to such Offered Units to the Partnership and, with
respect to the status of the Offered Units, that such Offered Units
are free and clear of all liens, claims and encumbrances whatsoever,
and (ii) the Partnership shall (A) if shares of Common Stock are to be
issued, cause the General Partner, acting in its individual legal
capacity, to execute and deliver representations and warranties with
respect to its due authority to issue the shares of Common Stock to be
received in the exchange; deliver an opinion of counsel for the
General Partner, reasonably satisfactory to the Exercising Partners,
to the effect that such shares of Common Stock have been duly
authorized, are validly issued, fully-paid and non-assessable; and
deliver a stock certificate or certificates evidencing the shares of
Common Stock to be issued and registered in the name(s) of the
Exercising Partner(s) or its or their designee(s), and/or (B) if cash
is to be paid for Partnership Units, deliver a check in the amount of
any cash due to the Exercising Partner(s) at such closing. If any
Exercising Partner shall have delivered a Unit Certificate or Unit
Certificates representing a number of Partnership Units in excess of
the number of Offered Units, the Partnership shall issue to such
Exercising Partner, at the expense of the Partnership, a new Unit
Certificate covering the number of Partnership Units representing the
unredeemed portion of the Unit Certificate or Unit Certificates so
surrendered, which new Unit Certificate shall entitle the holder
thereof to such rights of ownership of Partnership Units to the same
extent as if the Unit Certificate covering such unredeemed Partnership
Units had not been surrendered for redemption.
(h) RESTRICTION ON REDEMPTION OF PARTNERSHIP UNITS.
Notwithstanding anything in paragraph (e) and (f) above, or any other
provision of this Section 10.3 to the contrary, after the earlier of
January 1, 2006, or the date on which the number of Partners exceeds
500, upon delivery of the Exercise Notice, the Partnership shall
notify the Limited Partner, within 10 days thereof, whether such
Offered Units will be redeemed for cash or Common Stock and the
closing of the redemption of Offered Units shall not occur any earlier
than the later of (i) 10 days after such notification by the
Partnership or (ii) the fifteenth (15th) day after the date on which
the Exercise Notice for such Offered Units was delivered to the
General Partner, on behalf of the Partnership, (or, if later, in both
case (i) and (ii), the first date upon which all legal and other
conditions with respect to such redemption have been satisfied, which
shall include the expiration or termination of any applicable waiting
periods), and in no event shall the current Per Share Market Price of
any such Offered Units be determined as of any Trading Date prior to
the fourteenth (14th) business day after the date of delivery of the
Exercise Notice; PROVIDED, HOWEVER, that the provisions of this
Section 10.3(h) shall cease to apply and shall have no further force
or effect on the date, if any, on which the Partnership receives
either a ruling from the IRS or an unqualified opinion
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from the Partnership's counsel to the effect that, under the original
provisions of paragraph (e) and (f) prior to any modification thereof
by this paragraph (h), the Partnership will not be treated as a
"publicly traded partnership" within the meaning of Section 7704 of
the Code or any successor provision.
(i) TERM OF RIGHTS. Unless sooner terminated, the
rights of the parties with respect to the Redemption Rights shall
commence as of the date which is one (1) year after the date of this
Agreement and lapse for all purposes and in all respects upon the
termination of the Partnership; PROVIDED, HOWEVER, that the parties
hereto shall continue to be bound by an Exercise Notice delivered to
the General Partner, on behalf of the Partnership, prior to such
termination.
(j) COVENANTS OF THE GENERAL PARTNER. To facilitate the
General Partner's ability to fully perform its obligations hereunder,
the General Partner covenants and agrees as follows:
(i) At all times during the pendency of the Redemption Rights,
the General Partner shall reserve for issuance such number
of shares of Common Stock as may be necessary to enable the
General Partner to issue such shares, if compelled to do so
by the Partnership pursuant to the terms of Section 10.3(a)
hereof, in full exchange for all Partnership Units held by
the Limited Partners which are from time to time issued and
outstanding;
(ii) During the pendency of the Redemption Rights, each Limited
Partner shall receive in a timely manner all reports and/or
other communications transmitted from time to time by the
General Partner to its shareholders generally; and
(iii) In case the General Partner shall issue rights or warrants
to all holders of shares of its Common Stock entitling them
to subscribe for or purchase shares of Common Stock at a
price per share less than the Current Per Share Market Price
as of the date immediately prior to the date of such
issuance, the General Partner shall also issue to each
holder of a Partnership Unit such number of rights or
warrants, as the case may be, as he would have been entitled
to receive had he required the Partnership to redeem his
Partnership Units immediately prior to the record date for
such issuance by the General Partner.
(iv) In case the outstanding shares of Common Stock shall be
subdivided into a greater number of shares, the number of
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shares of Common Stock for which each Partnership Unit
thereafter may be redeemed shall be increased
proportionately, and, conversely, in case outstanding shares
of Common Stock each shall be combined into a smaller number
of shares, the number of shares of Common Stock for which
each Partnership Unit thereafter may be redeemed shall be
reduced proportionately, such increase or reduction as the
case may be, to become effective immediately after the
opening of business on the Trading Day following the day
upon which such subdivision or combination becomes
effective.
(v) In case shares of Common Stock shall be changed into the
same or a different number of shares of any class or classes
of shares of beneficial interest, whether by capital
reorganization, reclassification or otherwise (other than a
subdivision or combination of shares or a stock dividend
described in Section 10.3(i)(iv) above) then and in each
such event the Limited Partners shall have the right
thereafter to require the Partnership to redeem their
Partnership Units for the kind and amount of shares and
other securities and property which would have been received
upon such reorganization, reclassification or other change
by holders of the number of shares of Common Stock for which
the Partnership Units might have been redeemed immediately
prior to such reorganization, reclassification or change.
(vi) If compelled by the Partnership to issue shares of Common
Stock pursuant to the terms of Section 10.3(a) hereof, the
General Partner may, but shall not be required to, make such
adjustments to the number of shares of Common Stock issuable
upon redemption of a Partnership Unit, in addition to those
required by paragraphs (iii), (iv) and (v) of this Section
10.3(i), as the Board of Directors considers to be advisable
in order that any event treated for Federal income tax
purposes as a dividend of stock or stock rights shall not be
taxable to the recipients. The Board of Directors shall
have the power to resolve any ambiguity or correct any error
in the adjustments made pursuant to this Section 10.3(i) and
its actions in so doing shall be final and conclusive.
(k) LIMITED PARTNERS' COVENANT. Each Limited Partner
covenants and agrees with the Partnership and the General Partner,
acting in its individual legal capacity, as the case may be, that all
Offered Units
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tendered in accordance with the exercise of Redemption Rights herein
provided shall be delivered free and clear of all liens, claims and
encumbrances whatsoever and should any such liens, claims and/or
encumbrances exist or arise with respect to such Offered Units, the
Partnership and the General Partner, acting in its individual legal
capacity, as the case may be, shall be under no obligation to acquire
the same. Each Limited Partner further agrees that, in the event any
state or local property transfer tax is payable as a result of the
transfer of its Offered Units, such Limited Partner shall assume and
pay such transfer tax.
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IN WITNESS WHEREOF, the undersigned has executed this Amendment No. 1 this
21st day of August, 1998.
XXXX-XXXX REALTY, L.P.
By: XXXX-XXXX REALTY CORPORATION,
as its General Partner
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Name: Xxxxxx X. Xxxx
Title: Chief Executive Officer
XXXX-XXXX REALTY CORPORATION,
in its individual legal capacity
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: President and Chief Operating
Officer
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