FIRST AMENDMENT
TO AGREEMENT OF LIMITED PARTNERSHIP
OF
XXXXXXX PACIFIC OPERATING PARTNERSHIP, L.P.
THIS FIRST AMENDMENT TO AGREEMENT OF LIMITED PARTNERSHIP, dated as
of December 31, 1997, is entered into by and among XXXXXXX PACIFIC
PROPERTIES, INC., a Maryland corporation, as the General Partner, XXXXXXX
PACIFIC L.P., INC., as a continuing Limited Partner ("BPLP"), the entities
designated as "CONTRIBUTORS" on Exhibit A (the "Contributors"), as incoming
and withdrawing limited partners, HPBA, LLC ("HPBA") and HPBA II, LLC
("HPBAII"), both Delaware limited liability companies, as incoming and
withdrawing limited partners, HPBA INC. and HPBA II INC., both California
corporations, as incoming and withdrawing partners, GSF ASSOCIATES, L.L.C.
("GSF") and GSF II ASSOCIATES, L.L.C. ("GSF II"), both Delaware limited
liability companies, as incoming and withdrawing partners, and the persons
and entities listed as "EXISTING PARTNERS" on Exhibit B (the "Existing
Partners").
RECITALS
A. The General Partner and BPLP are the initial partners of
Xxxxxxx Pacific Operating Partnership, L.P. (the "Operating Partnership"), a
Delaware limited partnership operated pursuant to that certain Agreement of
Limited Partnership of the Operating Partnership dated as of November 14,
1997 (the "Operating Partnership Agreement"), and the General Partner has
authority to execute the First Amendment on behalf of any other parties
heretofore admitted as Partners of the Operating Partnership.
B. The parties to this First Amendment desire to amend the
provisions of the Operating Partnership Agreement, effective as of the date
first written above, (i) to provide for the contribution of the Properties by
the Contributors to the Operating Partnership, the transfer by the Operating
Partnership of the Contribution Consideration and rights to receive
Additional Equity Value and Additional Consideration to the Existing Partners
as the designees of the Contributors, and the admission of the Existing
Partners as Limited Partners of the Partnership; all pursuant to the
provisions of that certain "Agreement to Contribute", dated as of December 5,
1997, among the Operating Partnership, Xxxxxxx Pacific Properties, Inc. and
the Contributors (as amended from time to time, the "Contribution
Agreement"), and (ii) to provide for the establishment of two classes of
Partnership Interests and related Units (a preferred class thereof and a
common class thereof)("Preferred Units" and "Common Units", respectively),
each having the respective rights set forth in the Operating Partnership
Agreement and this First Amendment.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged, the parties to this First
Amendment hereby agree as follows:
Section 1. Defined Terms. Unless otherwise defined in this First
Amendment, the capitalized terms used in this First Amendment shall have the
meanings ascribed to such terms in the Contribution Agreement and the
Operating Partnership Agreement (as applicable).
Section 2. Amendment of Operating Partnership Agreement. The
Operating Partnership Agreement hereby is amended to provide for the
following:
(a) Contribution. Each Contributor hereby contributes its
interest in the Properties owned by it as required pursuant to the
Contribution Agreement, and the Operating Partnership hereby
accepts such contribution.
(b) Admissions and Withdrawals.
(i) Each Contributor hereby is admitted as a Limited Partner
of the Operating Partnership.
(ii) Immediately thereafter, each Contributor hereby
distributes all of its rights under the Contribution Agreement
(including, but not limited to, its rights to receive Units,
Preferred Units, the Cash Reimbursement Component, Additional
Equity Value and Additional Consideration and any portion
thereof already deemed to have been received by such
Contributor)(collectively, the "Contribution Rights") to its
members (HPBA Inc. and HPBA, or HPBA II Inc. and HPBA II, as
appropriate) and each Contributor thereupon withdraws as a
Limited Partner of the Partnership for all purposes.
Simultaneously with such withdrawal, each of such members
hereby is admitted as a Limited Partner of the Operating
Partnership.
(iii) Immediately thereafter, each of HPBA Inc. and HPBA II
Inc. hereby distributes all of its interest in the
Contribution Rights to HPBA and HPBAII, respectively, and each
of HPBA Inc. and HPBA II Inc. thereupon withdraws as a Limited
Partner of the Operating Partnership for all purposes.
Immediately thereafter, each of HPBA and HPBA II hereby
distributes all of its interest in the Contribution Rights to
its members (Blackacre SMC Holdings, L.P. or its Affiliated
designee who is then a member of HPBA ("BSMC") and GSF with
respect to HPBA, and Blackacre SMC II Holdings, LLC or its
Affiliated designee who is then a member of HPBA II ("BSMCII")
and GSFII with respect to HPBA II) and each of HPBA and HBPA
II thereupon withdraws as a Limited Partner of the Operating
Partnership for all purposes. Simultaneously with such
withdrawal, each of BSMC and BSMCII (or
their Affiliated designee who is then a member of HPBA and
HPBA II), GSF, and GSF II hereby is admitted as a Limited
Partner of the Operating Partnership.
(iv) Immediately thereafter, each of GSF and GSFII hereby
distributes all of its interest in the Contribution Rights to
its respective members (each of which is listed as an Existing
Partner on Exhibit B) and thereupon withdraws as a Limited
Partner of the Operating Partnership for all purposes.
Simultaneously with such withdrawal, each of such Existing
Members hereby is admitted as a Limited Partner of the
Operating Partnership.
(v) Immediately after the foregoing transactions, no
Contributor or its direct or indirect owners through any
intermediaries who is not an Existing Partner shall be a
Partner of the Operating Partnership.
(c) Contribution Consideration. For convenience, each of the
Contributors has directed that the Operating Partnership transfer
directly to the Existing Partners all of the Contribution
Consideration, Additional Equity Value and Additional Consideration
that it is entitled to receive under the Contribution Agreement by
reason of its contribution of its Properties to the Operating
Partnership hereunder; in each case, such transfers to be made by
the Operating Partnership as, when and to the extent required under
the Contribution Agreement; provided, however, that despite such
direct transfers to the Existing Partners, all of the transactions
described above in this Section 2 shall be deemed to have occurred
in the order indicated for all purposes and be so treated by all
parties.
(d) Unit Classes. As authorized in Section 4.2.A. of the
Operating Partnership Agreement, the General Partner hereby causes
the Partnership to issue two classes of Limited Partnership
Interest, to be known and designated "Common Units" and "Series
1997-A Preferred Units" respectively (each of which may be divided
into subclasses known as "Class A" and "Class B" Common Units or
Preferred Units for the limited purposes of and as provided in
Sections 4.2.C and 5.1 of the Operating Partnership Agreement).
All Limited Partner Interests outstanding immediately prior to the
first admission of the Contributors as provided in Section 2 of
this First Amendment shall be Common Units; and there shall be
issued the further number of Common Units to the Contributors and
held by the Existing Members (after the distributions, admissions
and withdrawals described in said Section 2) as determined pursuant
to the Contribution Agreement and as evidenced by amendments to
Exhibit A to the Operating Partnership Agreement from time to time.
There shall also be issued as a part of the consideration provided
for under the Contribution Agreement to the Contributors and held
by the Existing Members (after the
distributions, admissions and withdrawals described in said Section
2) 2,000,000 Series 1997-A Convertible Preferred Units. To the
extent that the General Partner issues not more than 2,800,000
shares of its Series 1997-A Convertible Preferred Stock pursuant to
a Stock Purchase Agreement dated as of December 5, 1997 among the
General Partner, the Operating Partnership and Xxxxxxxxx Partners,
L.L.C. (the "Preferred Stock Purchase Agreement"), the Partnership
shall, consistent with the terms of the proviso to the first
sentence of Section 4.2.A of the Operating Partnership Agreement,
issue to the General Partner a like number (up to 2,800,000) of
Series 1997-A Preferred Units. The respective rights of the Series
1997-A Preferred Units and of the Common Units are set forth on
Exhibit C hereto.
(e) Reconstitution, Continued Effect. The Operating Partnership
hereby is reconstituted and the business of the Operating
Partnership hereby is continued pursuant to the Operating
Partnership Agreement, as the same has been amended by this First
Amendment. Except as amended by this First Amendment, the
Operating Partnership Agreement shall continue in full force and
effect. In the event of a conflict between the provisions of this
First Amendment and the provisions of the Operating Partnership
Agreement, the provisions of this First Amendment shall control.
(f) Interpretation. This First Amendment shall be deemed to be a
part of the Operating Partnership Agreement for all purposes,
including, without limitation, the general provisions of Article 15
(accordingly, counterpart execution of this First Amendment is
permitted)
Section 3. Confirmations. The General Partner hereby confirms
that all consents or approvals required to be obtained under the Operating
Partnership Agreement to the foregoing transactions have occurred, and that
the UPREIT Transaction has occurred to the extent that the Operating
Partnership and its Subsidiaries have legal or beneficial ownership of at
least 60% by value of the assets owned by the General Partner (other than its
interest in the Operating Partnership) and by its Subsidiaries (including the
Operating Partnership) immediately prior to the effectiveness of this First
Amendment.
Section 4. Reallocation Amount. The Contributors shall,
notwithstanding anything in this Agreement to the contrary, have the right at
any time prior to the transfer of the Contribution Consideration to the
Existing Partners, to specify a portion of the Cash Reimbursement Component
thereof (the "Reallocation Amount") that shall be paid to HPBA and HPBA II
(instead of paying all of the Cash Reimbursement Component to the Existing
Partners) so as to fund expenses of HPBA, HPBA II, HPBA Inc., HPBA II Inc.
and the Contributors. Notwithstanding the provisions of Section 2(b) of this
First Amendment, the Reallocation Amount (if any) shall be deemed to have
been paid to the Contributors, thereupon distributed by them to HPBA Inc.,
HPBA II Inc., HPBA and HPBA II (in proportion to their respective shares of
the entire Cash Reimbursement Component otherwise payable to them)
and the portions thereof so deemed distributed to HPBA Inc. and HPBA II Inc.
thereupon being distributed from HPBA Inc. and HPBA II Inc. to HPBA and HPBA
II respectively (in lieu of further distributions thereof being deemed to
have occurred from HPBA and HPBA II to the members of HPBA and HPBA II).
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment on the day and year first above written.
[SIGNATURE PAGES TO FOLLOW]
GENERAL PARTNER:
XXXXXXX PACIFIC PROPERTIES, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
CONTINUING LIMITED PARTNER:
XXXXXXX PACIFIC L.P., INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
[SIGNATURES CONTINUED]
CONTRIBUTORS:
HPBA - Benicia Associates, L.L.C.,
HPBA - Madera Associates, L.L.C.,
HPBA - Xxxxxx Associates, L.L.C.,
HPBA - Redondo Beach Associates, L.L.C.,
HPBA - Suisun Associates, L.L.C.,
HPBA - Xxxxxx Associates, L.L.C.,
HPBA - Sacramento Associates, L.L.C.,
HPBA - Westminster Associates, L.L.C.,
Delaware limited liability companies
By: HPBA, LLC, a Delaware limited liability
company, Managing Member
By: GSF Associates, L.L.C., a Delaware
limited liability company, manager
member
By: MJL Associates, a California
Limited Partnership, its
managing member
By: MJL Investments, Inc., a
California
corporation, its
general partner
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
HPBA II - AC Sacramento Associates, L.L.C.,
HPBA II - Xxxx Gardens Associates, L.L.C.,
HPBA II - Bellflower Associates, L.L.C.,
HPBA II - Fremont Associates, L.L.C.,
HPBA II - Menifee Associates, L.L.C.,
HPBA II - Placerville Associates, L.L.C.,
HPBA II - San Xxxx Associates, L.L.C.,
HPBA II - San Marcos Associates, L.L.C.,
HPBA II - Santa Xxxx Associates, L.L.C.,
HPBA II - Shasta Associates, L.L.C.,
HPBA II - SHP Sacramento Associates, L.L.C.,
HPBA II - Vacaville Associates, L.L.C.,
Delaware limited liability companies
By: HPBA II, LLC, a Delaware limited liability
company, its managing member
By: GSF II Associates, L.L.C., a Delaware
limited liability company, its
managing member
By: MJL Associates, a California
Limited Partnership, its
managing member
By: MJL Investments, Inc., a
California
corporation, its
general partner
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
INTERVENING AND WITHDRAWING PARTNERS:
HPBA, INC.
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: President
HPBA II INC.
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: President
HPBA, LLC
By: GSF Associates, L.L.C, a Delaware
limited liability company, its
managing member
By: MJL Associates, a California
Limited Partnership, its managing member
By: MJL Investments, Inc., a
California corporation, its General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
HPBA II, LLC
By: GSF II Associates, L.L.C., a Delaware limited
liability company, its
managing member
By: MJL Associates, a California Limited
Partnership, its managing member
By: MJL Investments, Inc., a California
corporation, its General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
GSF ASSOCIATES, L.L.C.
By: MJL Associates, a California Limited
Partnership, its
managing member
By: MJL Investments, Inc., a California
corporation, its General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
GSF II ASSOCIATES, L.L.C., a
Delaware limited liability
company
By: MJL Associates, a California Limited
Partnership, its
managing member
By: MJL Investments, Inc., a California
corporation, its General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
[SIGNATURES CONTINUED]
EXISTING PARTNERS:
MJL Associates, a California Limited
Partnership
By: MJL Investments, Inc., a California
corporation, as General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
/s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------------------
Xxxxxx X. Xxxxxxxxx
/s/ Xxxx X. Xxxxxxx
-------------------------------------------------
Xxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxxxx
-------------------------------------------------
Xxxx X. Xxxxxxx
SAB ASSOCIATES, A CALIFORNIA LIMITED
PARTNERSHIP
By: SAB Investments, Inc., a California
corporation, as general partner
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President
BLACKACRE SMC MASTER
HOLDINGS, LLC
By: Blackacre SMC Holdings, L.P., its
managing member
By: Blackacre Capital Group, L.P., its
general partner
By: Blackacre Capital Management Corp.,
its general partner
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Co-President
By: Blackacre SMC II Holdings, LLC, its
managing member
By: Blackacre Capital Group, L.P., its
managing member
By: Blackacre Capital Management
Corp., its general partner
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Co-President
XXXXXXXXX XXXXXXX HOLDINGS, L.L.C.
By: /s/ Xxxxx Xxxx
--------------------------------
Authorized Signatory
XXXXXXXXX XXXXXXX CO-HOLDINGS,
L.L.C.
By: /s/ Xxxxx Xxxx
---------------------------------
Authorized Signatory
[END OF SIGNATURES; EXHIBITS FOLLOW]
