EXHIBIT 10.1
Second Amendment
to the Second Amended and Restated
Agreement of Limited Partnership
of
Xxxx-Xxxx Realty, L.P.
This second amendment to the Second Amended and Restated Agreement of
Limited Partnership (hereinafter "Second Amendment") is made as of July 6, 1999
by Xxxx-Xxxx Realty Corporation, a Maryland Corporation as General Partner (the
"General Partner") of Xxxx-Xxxx Realty, L.P., a Delaware Limited Partnership
(the "Partnership") for the purpose of amending the Second Amended and Restated
Agreement of Limited Partnership of the Partnership dated as of the 11th day of
December, 1997 as amended to the date hereof (the "Partnership Agreement").
WHEREAS, the General Partner has entered into a Rights Agreement as of
the date first written above (the "Rights Agreement") pursuant to which the
General Partner will distribute to the holders of the General Partner's Common
Stock Rights to purchase shares of a newly authorized class of preferred stock
(the "Rights Plan");
WHEREAS, in connection with the adoption of the Rights Plan, it is
necessary to amend the Partnership Agreement to provide for the equitable
treatment of Limited Partners under the terms of the Partnership Agreement
including, without limitation, in connection with the Limited Partners Rights of
Redemption under Section 10.3 of the Partnership Agreement;
WHEREAS, pursuant to Section 10.3(j)(iii) of the Partnership Agreement,
in the event that the General Partner issues rights or warrants to subscribe for
purchase shares of
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Common Stock at a price less than the Current Per Share Market Price, than the
General Partner shall have the obligation to issue to each Limited Partner the
number of rights as he would have been entitled to receive had the Partnership
redeemed the Partnership Units immediately prior to the record date for such
issuance by the General Partner;
WHEREAS, pursuant to Section 16.2 of the Partnership Agreement, the
General Partner has the right to amend the Partnership Agreement without the
consent of the Limited Partners to reflect a change of an inconsequential nature
and does not adversely affect the Limited Partners in any material respect, or
to cure any ambiguity, correct or supplement any provision in the Partnership
Agreement not inconsistent with law or with other provisions, or make other
changes to matters arising under the Partnership Agreement that will not be
inconsistent with law or the provisions of the Partnership Agreement;
WHEREAS the General Partner believes that none of the actions taken
pursuant to this Second Amendment will adversely affect the Limited Partners in
any material respect or inconsistent with the law or other provisions of the
Partnership Agreement; and
WHEREAS the General Partner believes that the amendments set forth
herein effectuates the intent of Section 10.3(j)(iii) and does not, in any
matter, prohibit or restrict or has the effect of prohibiting or restricting the
ability of a Limited Partner to exercise its Redemption Rights in full; and
WHEREAS the General Partner of the Partnership believes it is desirable
and in the best interest of the Partnership and the Limited Partners to amend
the Partnership Agreement as set forth herein.
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NOW THEREFORE, in consideration of the foregoing, the mutual promises
contained herein and for other good and valuable consideration, the receipt and
sufficiency which is hereby acknowledged, the General Partner on behalf of
itself and the Limited Partners, intending to be legally bound, hereby agrees to
make the following amendments to the Partnership Agreement in connection with
the execution of Rights Agreement, and to make certain technical corrections to
the Partnership Agreement, effective as of the date first written above:
Section 1 - DEFINED TERMS. Unless otherwise specifically provided for
herein, all capitalized terms shall have the same meaning given to such term in
the Partnership Agreement.
Section 2 - AMENDMENTS.
A. The definition of "Current Per Share Market Price" set forth in
Article 1 of the Partnership Agreement and is hereby deleted in its entirety and
amended to read in its entirety as following:
"CURRENT PER SHARE MARKET PRICE", on any date, shall mean the
average of the Closing Price for the five (5) consecutive Trading Days
ending on such date, provided that in the event that shares of stock
exchanged for Partnership Units include Rights that a holder of such
shares would be entitled to receive pursuant to the Rights Agreement,
such Rights shall be deemed to have no value unless a "Triggering
Event" (as defined in the Rights Agreement) shall have occurred (i.e.,
if the Rights issued pursuant thereto are no longer "attached" to the
stock and are able to trade independently); and provided further, that
in the event that a
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Triggering Event shall have occurred and any stock exchanged for
Partnership Units includes Rights that the holder of such shares would
be entitled to receive pursuant to the Rights Agreement, then the
Current Per Share Market Price of such Rights shall be determined by
the General Partner acting in good faith on the basis of such
quotations and other information that it considers, in its reasonable
judgment, appropriate.
B. Article 1 of the Partnership Agreement is amended to add the
following terms as defined terms in the Partnership Agreement in appropriate
alphabetical order:
"Rights" means the rights issued to the stockholders of the General
Partner pursuant to the Rights Agreement.
"Rights Agreement" means that certain Shareholder Rights Agreement
dated as of July 6, 1999 by and between the General Partner and ChaseMellon
Shareholder Services, LLC, as Rights Agent.
C. Section 6.4(c) of the Partnership Agreement entitled "Adjustments to
Partnership Units" is hereby deleted in its entirety and amended to read in its
entirety as follows:
(c) ADJUSTMENTS TO PARTNERSHIP UNITS. If the Common Stock (or
any other class of stock of the General Partner for which a class of
Partnership Units may be redeemed) undergoes any stock split or
subdivision, reverse stock split or combination, stock dividends, or
distribution of stock rights, warrants or options, then, without
further action or consent by the General Partner or any Limited
Partner, each corresponding class of Partnership Units that is
redeemable for such
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stock shall be split, combined, issued or distributed stock, stock
rights, options or warrants in accordance with the same ratio used to
split, combine, issue or distribute the stock, stock rights, options or
warrants. For example, if the Common Stock undergoes a reverse
two-for-one split, (i.e., every two shares of old Common Stock are
converted to one share of new Common Stock) than the corresponding
class of Partnership Units that are redeemable for such Common Stock
shall undergo a similar reverse split (i.e., every two OP Units shall
be converted into one new OP Unit). Similarly, if any class of
Partnership Units into which another class of Partnership Units is
convertible, undergoes any split or reverse split, then without further
action or consent by the General Partner or any Limited Partner, the
latter class of Partnership Units shall be split or combined in
accordance with the same ratio used to split or combine the first class
of Partnership Units. In addition, without limiting the generality of
the foregoing, in the event the number of shares of Common Stock,
preferred stock or any class of stock of the General Partner shall be
adjusted for the issuance or distribution of stock upon the
exercisability of the Rights governed by the Rights Agreement without
the receipt of cash by the General Partner (which adjustment may be
satisfied by the issuing of additional Common Stock or other stock in
exchange for the Rights) then, without further action or consent by the
General Partner or any Limited Partner, the corresponding classes of
Partnership Units shall be appropriately issued additional Units or
otherwise appropriately adjusted as necessary to reflect equitably the
dilution in the stock of the General Partner
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resulting from the issuance of additional stock and the exchange of
stock for the Rights.
D. The Partnership Agreement is hereby amended by adding a new
section 6.3A to read as follows:
6.3A EXERCISE OF THE RIGHTS PURSUANT TO THE RIGHTS
AGREEMENT. In the event that the General Partner has made
contributions of cash or other consideration to the
Partnership attributable to the General Partner's receipt of
cash or other consideration upon the exercise of the Rights by
the shareholders of the General Partner pursuant to the Rights
Agreement, the General Partner shall be issued a number of
Partnership Units as a result of such contribution equal to
the number of shares sold pursuant to such exercise. In such
event, the Limited Partners shall have the right to purchase
additional Partnership Units pursuant to Section 6.4(f).
E. The Partnership Agreement is hereby amended by adding a new Section
6.4(f) to read as follows:
(f) ISSUANCE OF ADDITIONAL UNITS TO THE LIMITED PARTNERS. In
the event that the holders of stock of the General Partners are issued
stock for cash or other consideration pursuant to the Rights Agreement
and the General Partner contributes such cash or other consideration to
the Partnership pursuant to Section 6.3A, then, without further action
or consent by the General Partner or any Limited Partner, each Limited
Partner holding a class of Partnership Units that is convertible into
such
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stock shall have the right to acquire additional Partnership Units on
the same terms and conditions as granted to the holders of stock
pursuant to the Rights Agreement, as if the Limited Partner had
converted its Partnership Units into stock immediately prior to the
exercise of the Rights.
G. The second sentence of Section 7.4(d) of the Partnership
Agreement is amended to add the phrase "or will have" immediately after the
word "has" and immediately before the word "received".
H. Section 10.3(e) is amended to delete the reference to "Section
10.3(i)" at the end of the first sentence and replaces it with "Section
10.3(j)".
I. Section 10.3(j)(v) of the Partnership Agreement is hereby amended
to delete the reference to "Section 10.3(i)(iv)" in the parenthetical clause
and replace it with "Sections 6.4(c) and 10.3(j)(iv)"; and the reference in
Section 10.3(j)(vi) to "Section 10.3(i)" is hereby deleted and is replaced
with "Section 10.3(j)".
Section 3 - MISCELLANEOUS
A. EFFECT OF AMENDMENT. Except as specifically modified hereby, all
terms and provisions of the Partnership Agreement shall continue to remain in
full force and effect and, except as the context otherwise requires, each
reference to the Partnership Agreement in this Amendment shall be a reference to
the Partnership Agreement as amended hereby.
B. SUCCESSORS AND ASSIGNS. This Amendment shall inure to the benefit of
and be binding upon the successors and assigns of each of the Partners.
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C. HEADING. The headings in this Amendment are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
D. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE.
E. SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected, it
being intended that each party's rights and privileges shall be enforceable to
the fullest extent permitted by law.
IN WITNESS WHEREOF, the General Partner, on behalf of itself and the
Limited Partners, has executed this Amendment as of the date first written
above.
XXXX-XXXX REALTY, L.P.
BY: XXXX-XXXX REALTY CORPORATION,
as its General Partner
By: /s/ Xxxxxxxx X. Xxxxx
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Xxxxxxxx X. Xxxxx
Chief Executive Officer
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