-----------------------------------------
FIRST AMENDMENT
TO
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
XXXXXXXX PARTNERSHIP, L.P.
Dated as of September 21, 1999
-----------------------------------------
THIS FIRST AMENDMENT TO AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP OF XXXXXXXX PARTNERSHIP, L.P. (the "Partnership") is made as of the
21st day of September, 1999, by the General Partners of the Partnership (the
"First Amendment").
WHEREAS, the General Partners of the Partnership desire to clarify the
allocation of discretionary ordinary distributions to the Partners (except the
Partner holding the Class C limited partnership interests) by expressly
providing that such allocations shall be made in proportion to the Partners'
respective Net Adjusted Capital.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein, the parties hereto agree as follows:
1. Defined Terms.
-------------
Capitalized terms used herein (including in the recitals above) and
not otherwise defined have the respective meanings assigned to them in the
Partnership Agreement.
2. Clarifying Amendment to Section 4.3(b).
--------------------------------------
Section 4.3(b) of the Partnership Agreement is hereby amended by the
addition of the following sentence after the first sentence thereof:
Each such distribution shall be allocated among the
Partners, except the Partner holding Class G
limited partnership interests, in proportion to their
respective Net Adjusted Capital.
and, as so amended, section 4.3(b) of the Partnership Agreement is hereby
restated in the form attached as Exhibit A hereto.
3. Miscellaneous.
-------------
(a) Except as expressly amended by this First Amendment, the
Partnership
Agreement shall remain in full force and effect in accordance with its terms.
(b) Captions contained in this First Amendment are inserted only as a
matter of convenience and in no way define, limit or extend the scope or intent
of this First Amendment or any provision hereof.
(c) This First Amendment may be executed in one or more counterparts,
which may include facsimile counterparts, each of which shall be deemed an
original but all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the General Partners hereto have executed this
Agreement as of the day and in the year first above written.
/s/ Xxxxx Xxxxxxxx
----------------------------------
Xxxxx Xxxxxxxx
/s/ Xxxxxxxxx Xxxxxxxx Xxxxxxxxxxx
----------------------------------
Xxxxxxxxx Xxxxxxxx Xxxxxxxxxxx
/s/ Xxxx Xxxxxxxx
----------------------------------
Xxxx Xxxxxxxx
/s/ Xxxxx Xxxxxxxx
----------------------------------
Xxxxx Xxxxxxxx
/s/ Xxxxxx Xxxxxxxx
----------------------------------
Xxxxxx Xxxxxxxx
/s/ Xxxxx Xxxxxxxx
----------------------------------
Xxxxx Xxxxxxxx
-2-
EXHIBIT A
(b) The General Partners may cause the Partnership to make
distributions (other than distributions upon liquidation) of the net funds
remaining after the payment of, or provision for payment of , current
obligations and operating expenses of the Partnership to the Partners, except to
the Partner holding Class G limited partnership interests, which shall only be
entitled to distributions pursuant to section 4.3(a) hereof. Each such
distribution shall be allocated among the Partners, except the Partner holding
Class G limited partnership interests, in proportion to their respective Net
Adjusted Capital. Any Partner may, at its option by notice to the General
Partners, elect to forego all or any portion of any distribution provided by
this section 4.3, in which case such portion shall be deemed to be an additional
Capital Contribution as of the first day of the first fiscal period following
receipt of such distribution.
