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EXHIBIT 10.1
XXXXXXX PROPERTIES RESIDENTIAL, L.P.
AMENDMENT #2 TO
FIRST AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
This Amendment, by Xxxxxxx Realty Investors, Inc. (the "General
Partner"),
WITNESSETH:
WHEREAS, the General Partner is the exclusive general partner in
Xxxxxxx Properties Residential, L.P., a Georgia limited partnership (the
"Partnership") existing pursuant to a First Amended and Restated Agreement of
Limited Partnership effective as of October 13, 1994, as heretofore amended (the
"Agreement"); and
WHEREAS, pursuant to subsection 9.1(a) of the Agreement, the General
Partner is authorized under certain circumstances to amend the Agreement,
without the consent or approval of the limited partners in the Partnership, and
the General Partner seeks to exercise such power to amend the Agreement as
hereinafter provided;
NOW, THEREFORE, the General Partner does hereby declare as follows.
A. AMENDMENTS.
1. A new Article is hereby added to the Agreement immediately
following Article 4, such new Article to be known as Article 4A and to read as
set forth on Exhibit A-1 attached hereto.
2. The first paragraph of section 5.2 of the Agreement is hereby
amended to read as follows.
5.2 ALLOCATIONS OF ACCOUNTING ITEMS -- GENERALLY. Items
attributable to an Accounting Period shall be determined as though
the books of the Partnership were closed as of the end of such
Accounting Period. The rules of this section 5.2 shall apply except
as provided in Article 4A and section 5.4.
3. Section 5.5 of the Agreement is hereby amended to read as
follows.
5.5 DISTRIBUTIONS. Except as provided in Article 4A, Available
Cash shall be distributed, as and when determined by the General
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Partner in its sole discretion, to the Partners in proportion to
their respective Ownership Percentages as in effect on the Record
Date for such distribution; provided, however, that no such
distribution shall be made to a Partner who has surrendered one or
more Units for redemption pursuant to section 6.7, or whose units
are called for purchase by the General Partner pursuant to section
6.7, to the extent that such Partner is or shall be entitled to a
corresponding distribution with respect to one or more REIT Shares
received or to be received by him pursuant to such surrender for
redemption or such purchase.
4. The last paragraph of section 7.1 of the Agreement is hereby amended
to read as follows.
Liquidation (within the meaning of clause 1(b)(2)(ii)(g) of the
Regulations) of the Partnership shall not, in and of itself, cause
dissolution of the Partnership, render applicable the provisions of
this Article 7 (other than the provisions of this sentence), or
(notwithstanding any other provision of this Agreement to the
contrary) require or permit any contribution to or distribution by
the Partnership (and any contribution or distribution which would
be required but for this sentence shall be deemed to have been
effected and offset by a matching distribution or contribution).
5. Exhibit 4A.3 hereto is hereby attached to the Agreement as Exhibit
4A.3 thereto.
B. EFFECTIVE DATE. The Amendments made by division A hereof shall be
effective as of and from and after June 1, 1999.
C. REAFFIRMATION. Except as hereby modified, the Agreement remains and
shall remain in full force and effect.
IN WITNESS WHEREOF, the General Partner has caused this Amendment to be
duly executed on the date indicated, but as of the effective date hereinbefore
specified.
Date: 6/15/99 Xxxxxxx Realty Investors, Inc.
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By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, Chief Financial Officer
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XXXXXXX PROPERTIES RESIDENTIAL, L.P.
AMENDMENT #2 TO
FIRST AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
EXHIBIT A-1
Text of New Article 4A
ARTICLE 4A
ADDITIONAL PARTNERSHIP INTERESTS
4A.1 PRIORITY OF APPLICATION. The provisions of this Article 4A shall
govern over all other provisions of this Agreement which would apply but for
(and inconsistently with) this Article 4A.
4A.2 CONVENTION. Unless otherwise expressly provided herein for a
particular purpose, when (a) a provision hereof is applicable only (or
separately) to a collection of Partners who own interests in the Partnership
having particular characteristics (including, for example, an interest's status
as one or more Units or as a Section 4A.3 Interest or as a Section 4A.3 Interest
associated with a particular Section 4A.3 Property), and (b) a Partner owns
interests in the Partnership which have such characteristics and interests in
the Partnership which do not have such characteristics, such provision shall be
applicable to such Partner only (or separately) with respect to his, her or its
interest(s) which have such characteristics.
4A.3 SECTION 4A.3 INTERESTS. Interests in the Partnership to be known
as "Section 4A.3 Interests" are hereby formalized, such interests to be held as
interests of limited partners with the rights and duties described below in this
section 4A.3 (and only such rights and duties).
(a) The following terms are hereby defined as set forth below.
The "Applicable Percentage" with respect to a Section 4A.3
Property means the percentage set forth on Exhibit 4A.3 opposite the
name of such Section 4A.3 Property.
The "Change in Control" means the first to occur of:
(i) any transaction, whether by merger, consolidation,
asset sale or otherwise, which results in the
acquisition of beneficial ownership,
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by any person or group, of fifty percent (50%) or
more of the outstanding REIT Shares or of the
outstanding Units;
(ii) any sale of all or substantially all of the assets of
the General Partner or the Partnership; or
(iii) the liquidation of the General Partner or the
Partnership;
except that the "Change in Control" shall not be considered to have
occurred in the event of the sale of the Partnership's assets to the
General Partner or the merger of the Partnership into the General
Partner unless (x) clause (i) applies to such sale or merger or (y) the
fundamental economic rights of the holders of Section 4A.3 Interests do
not effectively survive such sale or merger.
The "Distribution Amount" for a Section 4A.3 Property means:
(i) in the case of the Land, the lesser of (x) $86,775 or
(y) either:
(xx) in connection with a sale or other
disposition of the Land, the excess, if any,
of (aa) the gross proceeds of such sale or
other disposition over (bb) the Threshold
Amount for the Land at the time of such sale
or other disposition; or
(yy) in connection with the Change in Control,
the excess, if any, of (aa) the fair market
value of the Land at the time of the Change
in Control over (bb) the Threshold Amount
for the Land at the time of the Change in
Control;
(ii) in the case of a Section 4A.3 Property other than the
Land, either:
(x) in connection with a sale or other
disposition of such Section 4A.3 Property,
the lesser of:
(xx) the result obtained by multiplying
(aa) the gross proceeds of such sale
or other disposition by (bb) the
Applicable Percentage with respect
to such Property; or
(yy) the excess, if any, of (aa) the
gross proceeds of such sale or other
disposition over (bb) the Threshold
Amount for such Property at the time
of such sale or other disposition;
or
(y) in connection with the Change in Control,
the lesser of:
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(xx) the result obtained by multiplying
(aa) the fair market value of such
Section 4A.3 Property at the time of
the Change in Control by (bb) the
Applicable Percentage with respect
to such Property; or
(yy) the excess, if any, of (aa) the fair
market value of such Property at the
time of the Change in Control over
(bb) the Threshold Amount for such
Property at the time of the Change
in Control.
The "Land" means the land, consisting of approximately 8.8
acres, which was (i) acquired by the Partnership with the apartment
community known as "Crestmark" and (ii) undeveloped at the time of such
acquisition.
The "Section 4A.3 Properties" means the Land and the other
real properties of the Partnership identified on Exhibit 4A.3.
The "Threshold Amount" for a Section 4A.3 Property at any time
means the sum of (i) the value of the equity interests issued by the
Partnership and/or the General Partner in connection with the
Partnership's acquisition of such Property, (ii) the amount of
indebtedness assumed (or taken subject to) in connection with the
Partnership's acquisition of such Property, and (iii) the sum of all
capital expenditures made by the Partnership prior to such time with
respect to such Property.
(b) Each Section 4A.3 Interest shall be associated with a Section 4A.3
Property and may be referred to as the Section 4A.3 Interest associated with
such Property (and such Property may be referred to as being associated with
such Section 4A.3 Interest or as such Interest's "Associated Property").
(c) Upon issuance of a Section 4A.3 Interest, the Balance of the holder
thereof with respect thereto shall be zero.
(d) Holders of Section 4A.3 Interests shall by virtue of such holdings
be entitled to, and only to, the distributions described in this subsection (d).
(i) Upon the sale or other disposition of a Section 4A.3 Property
before the Change in Control, the holders of the Section 4A.3
Interests associated with such Property shall be entitled in
the aggregate to receive a distribution of cash equal to the
Distribution Amount for such Property.
(ii) Upon the Change in Control, the holders of the Section 4A.3
Interests associated with a Section 4A.3 Property not
previously sold or disposed
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shall be entitled in the aggregate to receive a distribution
of cash equal to the Distribution Amount for such Property.
(e) Subject to sections 5.3 and 5.4, items of the Partnership's income,
gain, loss, deduction and credit for an Accounting Period shall be allocated to
and among holders of Section 4A.3 Interests as, and only as, described in this
subsection (e).
(i) For purposes of this subsection (e):
the "Clause (iii) Items" for an Accounting Period means all
items of the Partnership's gross income and gain for such
Accounting Period other than gains of the types and amounts
allocable pursuant to clause (ii) of this subsection (e) for
such Accounting Period; and
the "Excess Distribution" for the holder of a Section 4A.3
Interest associated with a particular Section 4A.3 Property
for an Accounting Period means the excess, if any, of (x) the
total of all amounts distributed (or deemed distributed
pursuant to clause (iv)) to such holder over (y) the total of
the Partnership's gain from the disposition of such Property
allocable to such holder pursuant to clause (ii) for such
Accounting Period.
(ii) For each Accounting Period during which amounts are
distributed (or deemed distributed pursuant to clause (iv)) to
the holders of Section 4A.3 Interests associated with a
particular Section 4A.3 Property, the Partnership's gain (if
any) for such Accounting Period from the disposition of such
Section 4A.3 Property shall be allocated to such holders to
the extent of the aggregate of and in proportion to the
respective amounts so distributed (or deemed distributed) to
them.
(iii) If for an Accounting Period there is an Excess Distribution
for any holder of a Section 4A.3 Interest associated with a
particular Section 4A.3 Property, all Clause (iii) Items for
such Accounting Period shall be allocated to the extent of the
aggregate of and in proportion to the respective Excess
Distributions for such Accounting Period for holders of
Section 4A.3 Interests (whether associated with such Section
4A.3 Property or other Section 4A.3 Properties).
(iv) If for an Accounting Period the Excess Distribution for a
holder of a Section 4A.3 Interest associated with a particular
Section 4A.3 Property exceeds the amount allocable to such
holder pursuant to clause (iii) by reference to such Excess
Distribution, the amount of such excess shall be deemed
distributed to such holder during the next Accounting Period
for the purpose of applying this subsection (e) to such next
Accounting Period.
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(f) If the General Partner purchases all outstanding Units in
connection with its exercise of its option described in subsection 6.7(f), then,
simultaneously with such purchase, the General Partner shall purchase, and the
holder of each Section 4A.3 Interest shall sell, his, her or its Section 4A.3
Interests for cash equal to the amount such holder would receive if the Change
in Control were to occur at the time of such purchase.
(g) Section 4A.3 Interests may be transferred in accordance with, and
only in accordance with, the provisions of subsection (f) or this subsection
(g).
(i) Subject to clauses (iii), (iv) and (v), each holder of a
Section 4A.3 Interest may at any time and from time to time
transfer all or any portion of his, her or its Section 4A.3
Interest.
(ii) Subject to clauses (iii), (iv) and (v), and to compliance with
such reasonable procedural requirements as may be imposed by
the General Partner, each transferee of a Section 4A.3
Interest shall (except to the extent otherwise agreed between
such transferee and his, her or its transferor) be admitted,
upon notice of such transfer to the General Partner, as a
Limited Partner in substitution for his, her or its transferor
with respect to such interest.
(iii) Notwithstanding clauses (i) and (ii), in the absence of notice
to the General Partner to the contrary the Partnership and the
General Partner shall be entitled to assume that, and to act
in all respects as though, (x) no transfer of a Section 4A.3
Interest has occurred, and (y) with respect to any transfer of
a Section 4A.3 Interest which has occurred and of which the
General Partner has notice, the transferee is to be admitted
as a substituted Limited Partner in accordance with the
provisions of clause (ii), without reference to the
parenthetical expression therein.
(iv) No transfer (whether or not including a substitution) of or
with respect to a Section 4A.3 Interest shall relieve the
transferor of any duties or obligations as such theretofore
incurred (including, but not limited to, obligations to make
future contributions to the Partnership expressly required by
this Agreement), except to the extent provided in a writing
signed by the Partnership (and/or, if applicable, the other
obligee(s) thereof).
(v) No holder of a Section 4A.3 Interest shall transfer all or any
portion of his, her or its Section 4A.3 Interest, or take any
voluntary action with a view towards effecting any transfer
with respect to all or any portion of his, her or its Section
4A.3 Interest, unless such transfer:
(x) is effected in compliance with all applicable
securities laws; and
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(y) either would not produce a termination of the
Partnership for federal income tax purposes or is
consented to in writing by the General Partner.
Any transfer, or attempt to effect a transfer, of all or any portion of a
Section 4A.3 Interest in violation of this subsection (g) shall be null and void
ab initio.
(h) Except as described in subsections (f) and (g), neither the holder
of a Section 4A.3 Interest, the Partnership, the General Partner, nor anyone
else shall be entitled unilaterally to require that any Section 4A.3 Interest be
acquired or disposed of, for Units, REIT Shares, money or any other property.
(i) No amendment to section 4A.1, section 4A.2 or this section 4A.3
shall be made without the approval of holders of Section 4A.3 Interests which
would entitle such holders to receive more than fifty percent (50%) of the
amounts which would be distributed to all holders of Section 4A.3 Interests if
the Change of Control were to occur on the effective date of such amendment. No
amendment to any other section(s) of this Agreement which produces a material
adverse impact on the holders of Section 4A.3 Interests shall be made without
the approval of holders of Section 4A.3 Interests which would entitle such
holders to receive more than fifty percent (50%) of the amounts which would be
distributed to all holders of Section 4A.3 Interests if the Change of Control
were to occur on the effective date of such amendment.
(j) The holders of Section 4A.3 Interests shall not by virtue of such
holdings be entitled to participate in management of the Partnership.
(k) Each Section 4A.3 Interest shall be represented by a certificate
issued in accordance with section 6.8.
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XXXXXXX PROPERTIES RESIDENTIAL, L.P.
AMENDMENT #2 TO
FIRST AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
EXHIBIT 4A.3
Section 4A.3 Properties (Other than the Land)
Applicable
Name Percentage
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Xxxxx Xxxx 0%
Xxxxxxxx Xxxx 5%
Xxxx Xxxxx (1) 5%
Crestmark Phase I 5%
Plantation Trace Phase I 6%
Rosewood Plantation 5%
Xxxxxxx Xxxx Phase I 5%
Bentley Place 3%
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(1) (f/k/a Xxxxxxx Bridge)
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RECOGNITION AND ISSUANCE AGREEMENT
This Recognition and Issuance Agreement (this "Agreement") is by and
between Xxxxxxx Properties Residential, L.P. (the "Partnership") and Xxxxxxx
Properties, Inc. ("RPI").
1. RPI is hereby recognized as the owner of all of the Section 4A.3
Interests of the Partnership.
2. The Consulting Agreements are hereby declared and recognized as
terminated and void.
WITNESS OUR HANDS on the dates indicated, but as of June 1, 1999.
Date: 6-15-99 Xxxxxxx Properties, Inc.
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By: /s/ Xxxxxxx X. Xxxxxxx
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Date: 6-15-99 Xxxxxxx Properties Residential, L.P.
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By: Xxxxxxx Realty Investors, Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
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