Exhibit 10.4
XXXXXXXX HOSPITALITY LIMITED PARTNERSHIP
FIRST AMENDMENT TO FIRST AMENDED
AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
THIS FIRST AMENDMENT TO FIRST AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP (the "Amendment") made as of the 20th day of July 1995, among
Xxxxxxxx Hospitality Trust, Inc. a Virginia corporation, as general partner (the
"General Partner"), and Xxxxx X. Xxxxxxxx, Xx., Xxxxxxxx Associates, Inc., a
Maryland corporation and Farmville Lodging Associates, LLC, a Maryland limited
liability company, as limited partners, recites and provides as follows:
RECITALS
Xxxxxxxx Hospitality Limited Partnership (the "Partnership") was formed
as a limited partnership under the laws of the Commonwealth of Virginia upon the
filing of its Certificate of Limited Partnership with the Virginia State
Corporation Commission on August 29, 1994. The Partnership is governed by the
First Amended and Restated Agreement of Limited Partnership, dated November 29,
1994 (the "Agreement"). Capitalized terms used and not defined herein shall have
the meaning given to them in the Agreement.
The purpose of this Amendment is (i) to admit a new Limited Partner to
the Partnership, (ii) to provide registration rights to the new limited partner
and any additional Limited Partners of the Partnership for the shares of stock
of the General Partner that such Limited Partners may receive upon redemption of
their Units, and (iii) to amend Exhibit A to the Agreement to reflect the
issuance of Units to the General Partner and to the new Limited Partner.
AMENDMENT
NOW, THEREFORE, in consideration of the foregoing, the mutual promises
of the parties hereto, and of other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Farmville Lodging Associates, LLC, a Maryland limited liability company, is
hereby admitted as a Limited Partner of the Partnership, and Farmville Lodging
Associates, LLC agrees to be bound and subject to all terms, conditions and
provisions of the
Agreement as amended hereby.
2. The definition of "Request" in Article I is hereby deleted.
3. The definition of "Target Effective Date" in Article I is hereby deleted.
4. Section 4.02(a)(i) is hereby amended by moving the last sentence thereof and
inserting it after the first sentence thereof.
5. Section 8.05(a) is hereby amended by deleting the first sentence thereof in
its entirety and replacing it with the following:
Subject to the terms of Section 8.05, on or after the date (i) that is
one (1) year after the closing of the Offering, Xxxxx X Xxxxxxxx, Xx.
and Xxxxxxxx Associates, Inc. as Limited Partners with respect to the
Units received by them in connection with the offering of the REIT
Shares issued on November 29, 1994, or (ii) that is six months after
the issuance by the Partnership of any Units other than those issued in
connection with the November 29, 1994 issuance of REIT Shares (each
such date, a "First Redemption Date" with respect to the applicable
Units), each Limited Partner shall have the right (the "Redemption
Right") to require the Partnership to redeem on a Specified Redemption
Date all or a portion of the applicable Units held by such Limited
Partner at a redemption price equal to and in the form of the
Redemption Amount.
6. Section 8.05(c) is hereby amended by deleting the first word thereof and
replacing it with the following: "Except as provided in Section 8.05(e), the"
7. Section 8.05(e) is hereby added to read as follows:
(e) Notwithstanding any other provision of this Agreement, the
General Partner shall place appropriate restrictions on the ability of
the Limited Partners to exercise their Redemption Rights as and if
deemed necessary to ensure that the Partnership does not constitute a
"publicly traded partnership" under section 7704 of the Code.
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8. Section 8.06(a) is hereby deleted in its entirety and replaced with the
following:
(a) Shelf Registration. Within two weeks of any First
Redemption Date, the General Partner agrees to file with the Commission
a shelf registration statement under Rule 415 of the Securities Act, or
any similar rule that may be adopted by the Commission (the "Shelf
Registration"), with respect to all of the Redemption Shares that are
first eligible for redemption on such date. The General Partner will
use its best efforts to have the Shelf Registration declared effective
under the Securities Act as soon as practicable after such filing and
to keep the Shelf Registration continuously effective until the earlier
of (i) the date when all of the Redemption Shares registered thereby
are sold, or (ii) the date on which all of the holders of Redemption
Shares registered thereunder may sell such Redemption Shares without
registration under the Securities Act pursuant to Rule 144(k) under the
Securities Act. The General Partner further agrees to supplement or
make amendments to the Shelf Registration, if required by the rules,
regulations or instructions applicable to the registration form
utilized by the Company or by the Securities Act or rules and
regulations thereunder for the Shelf Registration. Notwithstanding the
foregoing, if for any reason the effectiveness of the Shelf
Registration is delayed or suspended or it ceases to be available for
sales of Redemption Shares thereunder, the Shelf Registration period
shall be extended by the aggregate number of days of such delay,
suspension or unavailability.
9. Section 8.06(b) is hereby deleted in its entirety and replaced with the
following:
(b) Registration and Qualification Procedures. The General
Partner is required by the provisions of Section 8.06(a) hereof to use
its best efforts to have a Shelf Registration relating to the
Redemption Shares declared effective under the Securities Act as soon
as practicable after each applicable First Redemption Date.
Accordingly, the General Partner, as soon as practical after a First
Redemption Date, shall with respect to the Redemption Shares first
eligible for redemption on such date:
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(i) prepare and file with the Commission a
registration statement, including amendments thereof and supplements
relating thereto, with respect to such Redemption Shares, in connection
with which the General Partner will give each holder of such Redemption
Shares, their underwriters, if any, and their counsel and accountants a
reasonable opportunity to participate in the preparation thereof and
will give such persons reasonable access to its books, records,
officers and independent public accountants;
(ii) use its best efforts to cause the registration
statement to be declared effective by the Commission;
(iii) keep the registration statement effective and
the related prospectus current throughout the Shelf Registration
period; provided, however, that the General Partner shall have no
obligation to file any amendment or supplement at its own expense or
the Partnership's expense more than ninety (90) days after the
effective date of the registration statement;
(iv) furnish to each holder of such Redemption Shares
such numbers of copies of prospectuses, and supplements or amendments
thereto, and such other documents as such holder reasonably requests;
(v) register or qualify such Redemption Shares
covered by the registration statement under the securities or blue sky
laws of such jurisdictions within the United States as any holder of
the such Redemption Shares shall reasonably request, and do such other
reasonable acts and things as may be required of it to enable such
holders to consummate the sale or other disposition in such
jurisdictions of such Redemption Shares; provided, however, that the
General Partner shall not be required to (i) qualify as a foreign
corporation or consent to a general and unlimited service or process in
any jurisdictions in which it would not otherwise be required to be
qualified or so consent or (ii) qualify as a dealer in securities;
(vi) furnish, at the request of the holders of such
Redemption Shares, on the date such Redemption Shares are delivered to
the
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underwriters for sale pursuant to such registration, or, if such
Redemption Shares are not being sold through underwriters, on the date
the Shelf Registration relating to such Redemption Shares becomes
effective, (A) a securities opinion of counsel representing the General
Partner for the purposes of such registration covering such legal
matters as are customarily included in such opinions and (B) letters of
the firm of independent public accountants that certified the financial
statements included in the registration statement, addressed to the
underwriters, covering substantially the same matters as are
customarily covered in accountant's letters delivered to underwriters
in underwritten public offerings of securities and such other financial
matters as such holders (or the underwriters, if any) may reasonably
request;
(vii) otherwise use its best efforts to comply with
all applicable rules and regulations of the Commission, and make
available to its shareholders as soon as reasonably practicable, but
not later than sixteen (16) months after the effective date of the
Shelf Registration, an earnings statement covering a period of at least
twelve (12) months beginning after the effective date of the Shelf
Registration, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act;
(viii) enter into and perform an underwriting
agreement relating to the related Redemption Shares with the managing
underwriter, if any, selected as provided herein, containing customary
(A) terms of offer and sale of the securities, payment provisions,
underwriting discounts and commissions and (B) representations,
warranties, covenants, indemnities, terms and conditions; and
(ix) keep the holders of such Redemption Shares
advised as to the initiation and progress of the registration.
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10. Exhibit A is hereby deleted in its entirety and replaced with the following:
EXHIBIT A
Agreed Value
of Non-Cash
Partner Cash Capital Partnership Percentage
and Address Contribution Contribution Units Interest
General
Partner:
Xxxxxxxx $15,746,065 2,331,700 78.90560%
Hospitality
Trust, Inc.
00000 Xxx
Xxxxxxxx Xxxx,
Xxxxxx Xxxxxx,
XX 00000
Limited
Partners:
Xxxxx X. $3,130,921 522,587 17.68454%
Xxxxxxxx, Jr.
00000 Xxx
Xxxxxxxx Xxxx,
Xxxxxx Xxxxxx,
XX 00000
Xxxxxxxx $ 31,628 5,279 0.17864%
Associates,
Inc.
00000 Xxx
Xxxxxxxx Xxxx
Xxxxxx Xxxxxx,
XX 00000
Farmville $ 740,001 95,484 3.23122%
Lodging
Associates,
LLC
00000 Xxx
Xxxxxxxx Xxxx,
Xxxxxx Xxxxxx,
XX 00000
$15,746,065 $3,902,550 2,955,050 100.00000%
========== ========= ========= =========
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to First Amended and Restated Agreement of Limited Partnership to be executed
under seal as of the date
first written above.
GENERAL PARTNER:
XXXXXXXX HOSPITALITY TRUST, a
Virginia corporation
By: //s// Xxxxx X. Xxxxxxxx, Xx.
------------------------------------
Xxxxx X. Xxxxxxxx, Xx.
President
ORIGINAL LIMITED PARTNERS:
By: //s// Xxxxx X. Xxxxxxxx, Xx.
------------------------------------
Xxxxx X. Xxxxxxxx, Xx.
XXXXXXXX ASSOCIATES, INC.,
a Maryland corporation
//s// Xxxxx X. Xxxxxxxx, Xx.
------------------------------------
Xxxxx X. Xxxxxxxx, Xx.
President
NEW LIMITED PARTNER
FARMVILLE LODGING ASSOCIATES, LLC,
a Maryland limited liability
company
By: //s// Xxxxx X. Xxxxxxxx, Xx.
------------------------------------
Xxxxx X. Xxxxxxxx, Xx.
Member
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