FOURTH AMENDMENT TO THE
FIRST AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF
XXXX HOLDINGS LIMITED PARTNERSHIP
THIS FOURTH AMENDMENT TO THE FIRST AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF XXXX HOLDINGS LIMITED PARTNERSHIP (this "Fourth
Amendment"), dated as of Dec. 1, 1996, is entered into by the undersigned
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parties.
W I T N E S S E T H
WHEREAS, Xxxx Holdings Limited Partnership (the "Partnership") was formed
as a Maryland limited partnership pursuant to that certain Certificate of
Limited Partnership dated June 16, 1993 and filed on June 16, 1993 among the
partnership records of the Maryland State Department of Assessments and
Taxation, and that certain Agreement of Limited Partnership dated June 16, 1993
(the "Original Agreement");
WHEREAS, the Original Agreement was amended and restated in its entirety by
that certain First Amended and Restated Agreement of Limited Partnership of the
Partnership dated August 26, 1993, which was further amended by that certain
First Amendment dated August 26, 1993, by that certain Second Amendment dated
March 31, 1994, and by that certain Third Amendment dated July 21, 1994 (as
amended, the "Agreement");
WHEREAS, the General Partner of the Partnership has established its
Dividend Reinvestment and Stock Purchase Plan (the "Plan"), which provides,
among other things, that the limited partners of the Partnership can elect to
invest some or all of their cash distributions received from the Partnership in
REIT Shares and that the General Partner will invest all funds received under
the Plan in the Partnership as an additional capital contribution;
WHEREAS, the undersigned parties, constituting all of the Partners of the
Partnership, desire to amend the Agreement (i) to appropriately reflect the
additional capital contributions that the General Partner will be making to the
Partnership pursuant to the Plan, and (ii) to provide Limited Partners with the
option of making capital contributions to the Partnership of cash distributions
that the might otherwise be invested in REIT Shares pursuant to the Plan.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, the parties hereto,
intending legally to be bound, hereby agree as follows:
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1. The definition of "Value" in Article I is amended by inserting the following
at the end of the first sentence thereof:
; provided, however, that with respect to REIT Shares issued pursuant to a
dividend reinvestment plan as set forth in Section 4.7 and with respect to
Section 4.8, "Value" as of any date means the closing price of the REIT
Shares as of such date.
2. The following Sections 4.7 and 4.8 are hereby inserted after Section 4.6:
Section 4.7 Dividend Reinvestment Plan
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If the General Partner establishes a dividend reinvestment plan, and cash
dividends or other cash distributions are invested in REIT Shares pursuant
to such plan:
(1) the General Partner shall, as soon as practicable after receiving such
distributions, contribute to the capital of the Partnership an amount
equal to the cash dividends or other cash distributions received for
the REIT Shares; and
(2) the General Partner shall, as of the date on which the REIT Shares are
issued pursuant to such plan, be deemed to have contributed to the
Partnership as Contributed Funds pursuant to Section 4.2.A(2) hereof
an amount equal to the Value (computed as of the date on which such
distributions are invested in REIT Shares pursuant to such plan) of
the REIT Shares delivered by the General Partner pursuant to such
plan; and
(3) the General Partner's Partnership Interest and the Partnership
Interests of the Limited Partners shall be adjusted as set forth in
Section 4.2
Section 4.8 Optional Investment of Cash Distributions
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If the General Partner establishes a dividend reinvestment plan pursuant to
which Limited Partners may invest cash distributions in additional REIT
Shares, and for so long as such plan remains in effect:
(1) the Limited Partners may make additional Capital Contributions to the
Partnership of the cash distributions from the Partnership;
(2) any Limited Partner who elects to make such an additional Capital
Contribution shall receive additional Partnership Units
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equal to the number of REIT Shares such Limited Partner would have
received had it invested such cash distribution in REIT Shares
pursuant to such plan;
(3) the Limited Partner shall, as of the date on which such cash
distribution, if any, is invested in the Partnership, be deemed to
have contributed to the Partnership as an additional Capital
Contribution an amount equal to the Value (computed as of the date on
which such distributions are invested in the Partnership) of the REIT
Shares that would have been delivered to such Limited Partner by the
General Partner had such cash distribution been invested pursuant to
such plan; and
(4) the General Partner shall be authorized on behalf of each of the
Partners to amend this Agreement to reflect the increase in the
Partnership Interest of each Limited Partner who elects to invest cash
distributions in the Partnership pursuant to this Section 4.8, and the
General Partner shall promptly after each such investment deliver a
copy of such amendment to each Limited Partner.
3. Except as the context may otherwise require, any terms used in this Fourth
Amendment that are defined in the Agreement shall have the same meaning for
purposes of this Fourth Amendment as in the Agreement.
4. Except as herein amended, the Agreement is hereby ratified, confirmed and
reaffirmed for all purposes and in all respects.
5. This Fourth Amendment may be executed in counterparts, all of which
together shall constitute one agreement binding on all the parties hereto,
notwithstanding that all such parties are not signatories to the original or the
same counterpart. Each party shall become bound by this Fourth Amendment
immediately upon affixing its signature hereto.
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IN WITNESS WHEREOF, the undersigned parties have executed this Fourth Amendment
as of the date first written above.
GENERAL PARTNER
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XXXX CENTERS, INC.
a Maryland corporation
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx Xxxxxx
Title: President
LIMITED PARTNERS
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X. X. XXXX REAL ESTATE INVESTMENT TRUST, a
Maryland unincorporated business trust
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
Attest: /s/ Xxxxxxxx X. Xxxxxxxxx
Name: Xxxxxxxx X. Xxxxxxxxx
Xxxxx: Assistant Secretary
WESTMINSTER INVESTING CORPORATION, a
New York corporation
By: /s/ B. Xxxxxxx Xxxx III
Name: B. Xxxxxxx Xxxx III
Title: Executive Vice President
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XXX XXXX SQUARE CORPORATION, a
Maryland corporation
By: /s/ B. Xxxxxxx Xxxx III
Name: B. Xxxxxxx Xxxx III
Title: President
DEARBORN CORPORATION, a
Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: President
FRANKLIN PROPERTY COMPANY, a
Maryland corporation
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx Xxxxxx
Title: President
AVENEL EXECUTIVE PARK PHASE II, INC., a
Maryland corporation
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx Xxxxxx
Title: President
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