Exhibit 10.6
XXXXXXX OPERATING LIMITED PARTNERSHIP
AMENDMENT TO THE SECOND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP
This Amendment to the Second Restated Agreement of Limited Partnership
of Xxxxxxx Operating Limited Partnership, a Delaware limited partnership (the
"PARTNERSHIP"), dated September 18, 2000 (this "AMENDMENT") amends the Second
Restated Agreement of Limited Partnership of the Partnership, dated as of
September 2, 1997 (as amended to date, the "PARTNERSHIP AGREEMENT"), and
executed by Xxxxxxx Real Estate, Inc., a Maryland corporation and the General
Partner (as defined in the Partnership Agreement) of the Partnership
("XXXXXXX"), and those Limited Partners whose names appear on the signature
pages thereto. Capitalized terms used herein and not otherwise defined herein
shall have the respective meanings assigned to them in the Partnership
Agreement.
WHEREAS, pursuant to Section 17.2 of the Partnership Agreement, in the
event that the General Partner engages in any merger, consolidation or other
combination with or into another Person in which securities of the General
Partner are being issued, acquired, converted or exchanged, which results in the
holders of Xxxxxxx common stock ("XXXXXXX COMMON STOCK") receiving cash,
securities or other property (a "TRANSACTION"), the General Partner may amend
the provisions of the Partnership Agreement in any respect in connection with
such Transaction (regardless of whether the amendment alters or changes the
distributions to a Limited Partner or a Limited Partner's Redemption Rights)
without obtaining the consent of any Limited Partner; PROVIDED THAT in
connection with the Transaction, the Limited Partners are offered the
opportunity to receive for each Unit held by them an amount of cash, securities,
or other property equal to the product of the Conversion Factor (as defined
prior to this Amendment) and the amount of cash, securities or other property,
if any, paid to a holder of one share of Xxxxxxx Common Stock as a result of the
Transaction;
WHEREAS, Xxxxxxx has entered into an Agreement and Plan of Merger (the
"MERGER AGREEMENT"), dated as of May 15, 2000, with Heritage Property Investment
Trust, Inc., a Maryland corporation ("HERITAGE"), and Heritage-Xxxxxx
Acquisition, Inc., a Maryland corporation ("HERITAGE SUB"), pursuant to which
Xxxxxxx will merge (the "MERGER") with and into Heritage Sub, with Heritage Sub
as the surviving corporation in the Merger and becoming the General Partner of
the Partnership;
WHEREAS, pursuant to the terms of the Merger Agreement, at the
effective time of the Merger, each of the issued and outstanding shares of
Xxxxxxx Common Stock will automatically be converted into the right to receive
$22.00 per share in cash (the "COMMON STOCK PURCHASE PRICE");
WHEREAS, as contemplated by the Merger Agreement, prior to the date
hereof, Heritage has offered to purchase (the "COMMON UNIT OFFER") all of the
Common Units
held by the Limited Partners at a purchase price of $22.00 per share,
representing the product of the Conversion Factor (i.e., 1.0) and the Common
Stock Purchase Price;
WHEREAS, as a result of the Common Unit Offer, the Limited Partners
have been offered the opportunity to receive for each Unit held by them an
amount of cash, securities or other property equal to the product of the
Conversion Factor and the amount of cash, securities, or other property, if any,
paid to a holder of one share of Xxxxxxx Common Stock in the Merger; and
WHEREAS, in accordance with Section 17.2 of the Partnership Agreement,
the General Partner desires by this Amendment to amend the Partnership Agreement
to provide for certain amendments to the Partnership Agreement required by the
Merger Agreement to take effect at the Effective Time (as defined in the Merger
Agreement);
WHEREAS, pursuant to Section 4.4 of the Amendment to the Partnership
Agreement, dated August 6, 1998, upon consummation of the Merger, all of the
Series A Units outstanding shall convert into the number of Common Units
issuable upon conversion of such Series A Preferred Units immediately prior to
the consummation of the Merger.
NOW THEREFORE, the Partnership Agreement is hereby amended as follows:
1. PARTNERSHIP AGREEMENT DEFINITIONS. Section 1.1 of the Partnership
Agreement is hereby amended by (a) adding the following definitions to such
Section 1.1 and (b) in the case of those terms defined below which are already
defined in the Partnership Agreement, replacing such definitions with the
following new definitions of such terms:
"ACCOUNTANTS" shall mean the firm or firms of independent certified
public accountants, selected by the General Partner on behalf of the Partnership
to audit the books and records of the Partnership and to prepare statements and
reports in connection therewith, which Accountants may be the independent
certified public accountants of Heritage.
"ADJUSTED CAPITAL ACCOUNT" shall mean the Capital Account maintained
for each Partner (i) increased by any amounts which such Partner is obligated to
restore pursuant to any provision of this Agreement or the penultimate sentences
of Treas. Reg.ss.ss.1.704-2(g)(1) and 1.704-2(i)(5), and (ii) decreased by the
items described in Treas. Xxx.xx. 1.704-1(b)(2)(ii)(d)(4), (5) and (6). The
foregoing definition of Adjusted Capital Account is intended to comply with the
provisions of Treas. Xxx.xx. 1.704-1(b)(2)(ii)(d) and shall be interpreted
consistently therewith.
"ADMINISTRATIVE EXPENSES" shall mean (i) all administrative and
operating costs and expenses incurred by the Partnership, (ii) those
administrative costs and expenses of Heritage or the General Partner, including,
without limitation, salaries paid to officers of Heritage or the General
Partner, accounting and legal expenses, the costs and expenses of
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preparing reports required to be filed by Heritage or the General Partner or
distributed to the holders of Units or other Partnership Interests in the
Partnership or to the stockholders of Heritage or the General Partner and the
costs and expenses incurred in complying with applicable laws, in all cases that
are undertaken by Heritage or the General Partner on behalf of, or for the
benefit of, the Partnership, and (iii) such costs and expenses incurred by
Heritage or the General Partner in raising or maintaining capital of Heritage or
the General Partner that Heritage in good faith determines is necessary or
appropriate to be applied, raised, used or maintained for the benefit of the
Partnership.
"ANNUAL VALUATION REPORT" shall have the meaning ascribed to such term
in Section 3.2A hereof.
"XXXXXXX GROUP" shall mean Heritage Sub, the Partnership, the Financing
Partnership, the Financing Corporation and any other Entity in which one or more
other members of the Xxxxxxx Group has or will have a direct or indirect
interest of 50% or more (by vote or value).
"CASH AMOUNT" shall mean an amount of cash equal to the amount (or
portion thereof) of any distribution which has not been paid to the Redeeming
Partner pursuant to Section 8.4 for any prior period, PLUS the product of (i)
the Common Unit Market Value on the Valuation Date, MULTIPLIED BY (ii) the
number of Common Units set forth in the Redeeming Partner's Notice of
Redemption.
"CHARTER" shall mean the Charter (as such term is defined in the
Maryland General Corporation Law) of Heritage, as it may be amended from time to
time.
"COMMON STOCK" shall mean the shares of common stock, par value $0.001
per share, of Heritage.
"COMMON UNIT MARKET VALUE" shall mean, on any date, (a) if the Common
Stock is not quoted or listed on the NASDAQ National Market or a national
securities exchange, the Fair Market Value of a Common Unit on such date, and
(b) if the Common Stock is quoted or listed on the NASDAQ National Market or a
national securities exchange, the product of (i) the average Closing Price for
the most recent ten (10) Trading Days ending on such date, MULTIPLIED BY (ii)
the Exchange Ratio, MULTIPLIED BY (iii) the Conversion Factor.
"COMMON UNITS" shall mean Units other than Preferred Units, regardless
of whether the Units are GP Units or LP Units.
"CONVERSION FACTOR" shall mean 1.0, provided that, during the period,
if any, that the Common Stock is quoted or listed on the NASDAQ National Market
or a national securities exchange, in the event Heritage (i) declares or pays a
dividend on its outstanding shares of Common Stock in shares of Common Stock or
makes a distribution to all holders of its outstanding Common Stock in shares of
Common Stock; (ii) subdivides its outstanding shares of Common Stock; or (iii)
combines its outstanding
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shares of Common Stock into a smaller number of shares of Common Stock, the
Conversion Factor shall be adjusted in the manner directed by the Board of
Directors of Heritage to prevent dilution or enlargement of the value of the
Common Units upon redemption. Any adjustment to the Conversion Factor shall
become effective immediately after the effective date of such event retroactive
to the record date, if any, for such event. Any determination by the Board of
Directors of Heritage, acting in good faith, with respect to the Conversion
Factor shall be final and binding upon the Partnership and the Limited Partners.
"EXCHANGE RATIO" shall mean the exchange ratio to be initially fixed by
the Board of Directors of Heritage at the time the Common Stock becomes quoted
or listed on the NASDAQ National Market or a national securities exchange, which
ratio shall reflect, in the judgment of the Board of Directors of Heritage
consistently applied, the relative Fair Market Value of a Common Unit and the
initial offering price per share of Common Stock in Heritage's initial public
offering. Any determination by the Board of Directors of Heritage, acting in
good faith, with respect to the Exchange Ratio shall be final and binding upon
the Partnership and the Limited Partners.
"FAIR MARKET VALUE" shall mean, with respect to a Common Unit, on any
date, the fair market value of a Common Unit on such date as determined in good
faith by the Board of Directors of Heritage, which determination shall be based
on the latest Annual Valuation Report for the fiscal year of the Partnership
immediately prior to the date of determination, adjusted, in the judgment of the
Board of Directors of Heritage consistently applied, to reflect the fair market
value of any properties acquired or disposed of since the date of such Annual
Valuation Report and changes in other non-real property assets or liabilities of
the Partnership since the date of such Annual Valuation Report.
"FRACTIONAL SHARE CASH AMOUNT" shall mean an amount of cash equal to
the product of (i) the Common Unit Market Value on the Valuation Date,
MULTIPLIED BY (ii) the fractional Common Unit set forth in the Redeeming
Partner's Notice of Redemption, and MULTIPLIED BY (iii) the Conversion Factor.
"GENERAL PARTNER" shall mean Heritage Sub, its duly admitted successors
and assigns and any other person who is a general partner at the time
referenced.
"HERITAGE" shall mean Heritage Property Investment Trust, Inc., a
Maryland corporation.
"HERITAGE SUB" shall mean Heritage-Xxxxxx Acquisition, Inc., a
Maryland corporation and surviving corporation of the Merger and a wholly-owned
subsidiary of Heritage.
"MERGER" shall mean the merger of Xxxxxxx with and into Heritage Sub,
in which Heritage Sub shall be the surviving corporation, all in accordance with
the terms and conditions of the Merger Agreement.
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"MERGER AGREEMENT" shall mean that certain Agreement and Plan of
Merger, dated as of May 15, 2000, by and among Heritage, Heritage Sub and
Xxxxxxx.
"NET PROCEEDS" shall mean the net proceeds from the issuance by
Heritage or the General Partner of any shares of Common Stock or other class of
its capital stock after all underwriting discounts, brokerage commissions or
fees and other costs attributable to such issuance.
"REDEMPTION PERIOD" shall mean (a) for as long as the Common Stock is
not quoted or listed on the NASDAQ National Market or a national securities
exchange, for each year, (i) the thirty (30) day period beginning on the date
that the General Partner delivers to the holders of the Common Units the Annual
Valuation Report with respect to the Partnership's prior fiscal year and (ii)
the thirty (30) day period beginning six months after the date that the General
Partner delivers to the holders of the Common Units the Annual Valuation Report
with respect to the Partnership's prior fiscal year, and (b) from and after the
date the Common Stock becomes quoted or listed on the NASDAQ National Market or
a national securities exchange, at any time (subject to customary black-out
periods established from time to time by the Board of Directors of Heritage,
which may include (1) a period of one-hundred and thirty-five (135) days
beginning on the closing of the initial public offering of Heritage during which
Limited Partners may not exercise their Redemption Right, and/or (2) subject to
clause (1) above, a period of one year beginning on the closing of the initial
public offering of Heritage during which Limited Partners may exercise their
Redemption Right and receive the Cash Amount but Heritage may not elect to pay
the REIT Shares Amount in connection with such redemption).
"REIT SHARES AMOUNT" shall mean a number of shares of Common Stock
equal to the product of (i) the number of Common Units set forth in the
Redeeming Partner's Notice of Redemption, less the amount of any fractional
Common Unit, MULTIPLIED BY (ii) the Exchange Ratio, MULTIPLIED BY (iii) the
Conversion Factor.
2. [Intentionally Omitted]
3. ISSUANCE OF UNITS. Section 3.1 of the Partnership Agreement is
hereby amended by deleting subsection (E) in its entirety.
4. REDEMPTION. Section 3.2 of the Partnership Agreement is hereby
amended by deleting such section in its entirety and inserting the following new
section in place thereof:
"3.2. REDEMPTION RIGHT.
A. Beginning with the fiscal year of the Partnership
ending December 31, 2000 and until such time as the Common
Stock shall be quoted or listed on the NASDAQ National Market
or a national securities exchange, Heritage shall cause a
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valuation report of the assets and liabilities of the
Partnership (an "ANNUAL VALUATION REPORT") to be prepared and
delivered to the holders of the Common Units. For each fiscal
year of the Partnership, such Annual Valuation Report shall be
delivered to the holders of Common Units no later than one
hundred and twenty (120) days following the end of the
Partnership's fiscal year.
B. Subject to Sections 3.2.C and 3.2.D, beginning
after the delivery by the General Partner to the holders of
Common Units of an Annual Valuation Report following the
fiscal year of the Partnership ended December 31, 2000 and
each year thereafter, during a Redemption Period, each Limited
Partner, other than the General 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 Common
Units held by such Limited Partner for an amount equal to the
Cash Amount, which shall be paid by the Partnership. The
Redemption Right shall be exercised pursuant to a Notice of
Redemption delivered to the Partnership (with a copy to the
General Partner) by the Limited Partner who is exercising the
redemption right (the "REDEEMING PARTNER"); PROVIDED, HOWEVER,
that the Partnership shall not be obligated to satisfy such
Redemption Right if Heritage elects to purchase the Common
Units subject to the Notice of Redemption pursuant to Section
3.2.C. Effective as of the Specified Redemption Date, the
Redeeming Partner shall not receive any dividends or
distributions with respect to any Common Units so redeemed.
The Transferee of any Limited Partner may exercise the rights
of such Limited Partner pursuant to this Section 3.2, and such
Limited Partner shall be deemed to have assigned such rights
to such Transferee and shall be bound by the exercise of such
rights by such Transferee. In connection with any exercise of
such rights by such Transferee on behalf of such Limited
Partner, the Cash Amount shall be paid by the Partnership or
Heritage, as the case may be, directly to such Transferee and
not to such Limited Partner.
C. Notwithstanding the provisions of Section 3.2.B, a
Limited Partner that exercises the Redemption Right shall be
deemed to have offered to sell the number of Common Units set
forth in the Notice of Redemption to Heritage, and Heritage
may, in its sole and absolute discretion, elect to purchase
directly and acquire such Common Units by paying to the
Redeeming Partner the Cash Amount or, if the Common Stock is
quoted or listed on the NASDAQ National Market or a national
securities exchange, the REIT Shares Amount and the Fractional
Share Cash Amount, as elected by Heritage (in its sole and
absolute discretion), on the Specified Redemption Date,
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whereupon on such date Heritage shall acquire the Common Units
offered for redemption by the Redeeming Partner and shall be
treated for all purposes of this Agreement as the owner of
such Common Units. If Heritage shall elect to exercise its
right to purchase Common Units under this Section 3.2.C with
respect to a Notice of Redemption, it shall so notify the
Redeeming Partner within five (5) Trading Days after the
receipt by the General Partner of such Notice of Redemption.
If Heritage (in its sole and absolute discretion) elects not
to exercise its right to purchase Common Units from the
Redeeming Partner pursuant to this Section 3.2.C, neither
Heritage nor the General Partner shall have any obligation to
the Redeeming Partner or the Partnership with respect to the
Redeeming Partner's exercise of the Redemption Right, and the
Partnership shall be required to pay the Redeeming Partner the
Cash Amount in accordance with the provisions of Section
3.2.B. In the event Heritage shall exercise its right to
purchase Common Units with respect to the exercise of a
Redemption Right as described in the first sentence of this
Section 3.2.C, the Partnership shall have no obligation to pay
any amount to the Redeeming Partner with respect to such
Redeeming Partner's exercise of such Redemption Right, and
each of the Redeeming Partner, the Partnership and the General
Partner, as the case may be, shall treat the transaction
between Heritage and the Redeeming Partner for federal income
tax purposes as a sale of the Redeeming Partner's Common Units
to Heritage. Each Redeeming Partner agrees to execute such
documents as Heritage and the General Partner may reasonably
require in connection with the issuance of shares of Common
Stock by Heritage upon exercise of the Redemption Right.
D. Notwithstanding the provisions of Section 3.2.B
and Section 3.2.C, (i) a Limited Partner shall not be entitled
to exercise the Redemption Right pursuant to Section 3.2.B if
the delivery of shares of Common Stock to such Partner on the
Specified Redemption Date pursuant to Section 3.2.C would be
prohibited under or violate any provision of the Charter of
Heritage or would violate any federal or state securities laws
and (ii) a Limited Partner shall not have the right to
exercise the Redemption Right pursuant to Section 3.2.B if in
the opinion of counsel for Heritage, Heritage or the General
Partner would, as a result thereof, no longer qualify (or if
there is a material risk that Heritage or the General Partner
no longer would qualify) as a REIT or a REIT-qualified
subsidiary.
E. A Limited Partner shall not be entitled to
exercise the Redemption Right with respect to any Preferred
Unit; but this Section 3.2.E shall not preclude the General
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Partner from amending this Agreement in connection with the
issuance or proposed issuance of Preferred Units pursuant to
Section 3.1.C so as to provide a right of holders hereof to
have such Preferred Units redeemed by the Partnership on terms
set forth in such amendment."
5. CAPITAL ACCOUNT ADJUSTMENTS. Section 3.5 of the Partnership
Agreement is hereby amended by adding new subsection E as set forth below and
redesignating existing subsection E as subsection F:
"E. The General Partner may make adjustments consistent with Treas.
Reg. ss. 1.704-1(b)(2)(iv)(f) upon the occurrence of any event
described in Treas. Xxx.xx. 1.704-1(b)(2)(iv)(f)(5) and such
adjustments, if made, shall be taken into account in calculating
Capital Accounts, the allocation of book profits and losses and for
all other applicable purposes hereunder."
6. ALLOCATIONS.
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(a) Section 7.1 of the Partnership Agreement is hereby amended
by deleting such section in its entirety and replacing such section with the
following new Section 7.1:
"7.1 GENERAL ALLOCATIONS OF PROFITS AND LOSSES.
A. Except as provided in Sections 7.2, 7.3, 7.4 and 7.5 hereof
(which shall be applied first), the Profits of the Partnership for each
taxable year (or other fiscal period) shall be allocated as follows:
(i) first, to the General Partner to the extent that
the cumulative Losses allocated to the General Partner pursuant to
Section 7.1.B(ii) exceed the cumulative Profits allocated to the
General Partner pursuant to this Section 7.1.A(i);
(ii) second, PRO RATA (based on the respective number
of Preferred Units held by them) to the holders of the Preferred Units
until the cumulative amount of Profits allocated pursuant to this
clause (ii) equals their cumulative Priority Return through the end of
the applicable year (whether or not distributed);
(iii) third, to the holders of Common Units to the
extent that the cumulative Losses allocated to the holders of Common
Units pursuant to Section 7.1.B(i) exceed the cumulative Profits
allocated to the holders of Common Units pursuant to this Section
7.1.A(iii); and
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(iv) thereafter, PRO RATA (based on the respective
number of Common Units held by them) to the holders of Common Units.
B. Except as provided in Sections 7.2, 7.3, 7.4 and 7.5 hereof
(which shall be applied first), the Losses of the Partnership for each
taxable year (or other fiscal period) shall be allocated as follows:
(i) first, PRO RATA (based on the respective number
of Common Units held by them) to the holders of Common Units; PROVIDED,
that Losses allocated to a holder of Common Units pursuant to this
Section 7.1.B(i) shall not exceed the maximum amount of Losses that can
be allocated without causing that holder of Common Units to have a
negative Adjusted Capital Account balance; and
(ii) thereafter, one hundred percent (100%) to the General
Partner."
(b) Section 7.2 of the Partnership Agreement is hereby amended by
adding at the end thereof the following new subsection E:
"E. QUALIFIED INCOME OFFSET. Any Partner who unexpectedly receives
an adjustment, allocation or distribution described in Treas. Xxx.xx.
1.704-1(b)(2)(ii)(d)(4), (5) or (6) that causes a deficit in the
Partner's Capital Account (adjusted as provided in Treas. Xxx.xx.
1.704-1(b)(2)(ii)(d)) shall be allocated items of income and gain in
an amount and a manner sufficient to eliminate, to the extent required
by the Treasury Regulations, such deficit balance as quickly as
possible. This Section 7.2.E is intended to comply with the alternate
test for economic effect set forth in Treas. Xxx.xx.
1.704-1(b)(2)(ii)(d) and shall be interpreted and applied in a manner
consistent therewith."
(c) Section 7.3 of the Partnership Agreement is hereby amended by
adding at the end thereof the following new subsection C:
"C. This Agreement shall be construed so as to comply with the
requirements of Code Section 514(c)(9)(E) and the Treasury Regulations
promulgated thereunder, and all interpretations of this Agreement
shall be made accordingly."
7. GENERAL PARTNER DEFICIT RESTORATION OBLIGATION. Article 7 of the
Partnership Agreement is hereby amended by adding at the end thereof the
following new Section 7.6:
"7.6 DEFICIT RESTORATION. In the event the General Partner's
interest in the Partnership is "liquidated" within the meaning of
Treas. Reg. ss. 1.704-1(b)(2)(ii)(g) (including, without limitation,
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upon the liquidation of the Partnership) and the General Partner's
Capital Account has a deficit balance after giving effect to all
contributions, distributions and allocations for all taxable years,
including the year during which such liquidation occurs, the General
Partner shall contribute to the capital of the Partnership the amount
necessary to restore such deficit balance to zero in compliance with
Treas. Reg.ss.1.704-1(b)(2)(ii)(B)(3)."
8. DISTRIBUTIONS TO PARTNERS. Section 8.4 of the Partnership Agreement
is hereby amended by deleting such section in its entirety and replacing such
section with the following new Section 8.4:
"8.4 DISTRIBUTIONS TO PARTNERS. Except as provided in Section
15.2, Operating Cash Flow and Capital Cash Flow with respect to any
period shall be distributed to the Partners at such time or times as
the General Partner shall determine consistent with the following order
of priority:
A. first, PRO RATA (based on the respective number of Preferred
Units held by them) to the holders of the Preferred Units until they
have received aggregate distributions under this Section 8.4.A equal
to the amount of their cumulative Priority Return; and
B. thereafter, PRO RATA (based on the respective number of
Common Units held by them) to the holders of Common Units;
PROVIDED, that, for each of the fiscal quarters during the three (3)
year period commencing on the effective date of the Merger, after the
distributions specified in Section 8.4.A have been made, and subject to
the Partnership being permitted by the Act to pay such distribution,
the holders of Common Units shall receive a quarterly distribution
under this Section 8.4.B of at least $0.38 per Common Unit."
9. SPECIAL DISTRIBUTIONS. Section 8.9 of the Partnership Agreement is
hereby amended by deleting such section in its entirety.
10. LIQUIDATION. Section 15.2 of the Partnership Agreement is hereby
amended by deleting subsection C in its entirety and replacing such section with
the following new subsection C:
"C. After paying such debts and providing for such reserves, and
after application of all allocations required by Section 7, the
General Partner or the liquidating trustee, as the case may be,
shall cause the remaining net assets of the Partnership to be
distributed to and among the Partners PRO RATA in accordance with
their positive Capital Account balances as required by Treas.
Reg.ss.1.704-1(b)(2)(ii)(b)(2)."
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11. NOTICES Section 19.1 of the Partnership Agreement is hereby amended
by deleting such section in its entirety and replacing such section with the
following new Section 19.1:
"19.1 NOTICES. Any notice, election or other communication
provided for or required by this Agreement shall be in writing
and shall be deemed to have been given when delivered by
telecopy or other facsimile transmission (confirmed by any of
the methods that follow) or by hand, the first business day
after sent by overnight courier (such as Federal Express), or
on the second business day after deposit in the United States
Mail, certified or registered, return receipt requested,
postage prepaid, properly addressed to the Partner to whom
such notice is intended to be given at the address for the
Partner set forth on EXHIBIT A, or at such other address as
such person may have previously furnished or may subsequently
furnish in writing to the Partnership and each Partner. A copy
of all such notices also should be sent to the General Partner
and addressed as follows:
General Partner: Heritage-Xxxxxx Acquisition, Inc.
c/o Heritage Property Investment Trust, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxxxx, President
Fax No. (000) 000-0000
With copy to: Xxxxxx X. Xxxx, Esq.
Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax No. (000) 000-0000"
12. REFERENCES TO GENERAL PARTNER. For purposes of the Partnership
Agreement, references to the term "General Partner" in Section 8.2(iv), 8.5(B)
(second reference only), 9.6(A)(i), 9.6(B) and 12.2(C)(a) shall be deemed to
refer to Heritage or the General Partner, as the case may be.
13. EXCHANGE RIGHTS.
(a) Section 9(a) of the Amendment to the Second Restated
Agreement of Limited Partnership Agreement Relating to 8.875% Series B
Cumulative Redeemable Perpetual Preferred Units is hereby amended by replacing
the phrase "8.875% Series B Cumulative Redeemable Preferred Stock of the General
Partner" with the phrase "8.875% Series B Cumulative Redeemable Preferred Stock
of Heritage"
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(b) Section 9(a) of the Amendment to the Second Restated
Agreement of Limited Partnership Agreement Relating to 8.875% Series C
Cumulative Redeemable Perpetual Preferred Units is hereby amended by replacing
the phrase "8.875% Series C Cumulative Redeemable Preferred Stock of the General
Partner" with the phrase "8.875% Series C Cumulative Redeemable Preferred Stock
of Heritage".
14. NO OTHER AMENDMENTS. Except as provided herein, all other terms of
the Partnership Agreement shall remain in full force and effect.
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15. IN WITNESS WHEREOF, this Amendment has been executed as of the date
first above written.
XXXXXXX REAL ESTATE, INC.
By: /s/ Xxxxxx X. D'Arcy
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Name: Xxxxxx X. D'Arcy
Title: President and Chief Executive Officer
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