EXHIBIT 10.40
SECOND AMENDMENT OF
AGREEMENT OF LIMITED PARTNERSHIP
OF
NATIONAL GOLF OPERATING PARTNERSHIP, L.P.
THIS AMENDMENT OF AGREEMENT OF LIMITED PARTNERSHIP (this "Amendment"),
dated as of July 29, 1996, is entered into by National Golf Properties, Inc., a
Maryland corporation, as the general partner (the "General Partner") of National
Golf Operating Partnership, L.P., a Delaware limited partnership (the
"Partnership").
WHEREAS, the General Partner and the limited partners of the
Partnership (the "Limited Partners") are parties to that certain Agreement of
Limited Partnership (the "Partnership Agreement"), dated as of August 18, 1993
and as amended on July 25, 1996;
WHEREAS, Section 8.6 of the Partnership Agreement grants to each
Limited Partner certain exchange and put rights with respect to such Limited
Partnership's Partnership Units (as defined in the Partnership Agreement), which
rights are subject to specific limitations on the number of Partnership Units
that each Limited Partner may exchange or put in any Twelve-Month Period (as
defined in the Partnership Agreement);
WHEREAS, Section 8.6.G of the Partnership Agreement specifically
provides, among other things, that each Limited Partner (i) may not effect an
exchange for more than the greater of 75,000 Partnership Units or one-third of
the number of Partnership Units owned by such Limited Partner on August 18,
1993, less the number of Partnership Units made subject to a put during the same
Twelve-Month Period, and (ii) may not effect a put of more than one-third of
the number of Partnership Units owned by such Limited Partner on August 18,
1993, less the number of Partnership Units made subject to an exchange during
the same Twelve-Month Period;
WHEREAS, Section 11.3.A of the Partnership Agreement provides that
each Limited Partner may pledge its Partnership Units as collateral to a lending
institution not affiliated with such Limited Partner in a bona fide loan
transaction, and that such pledged Partnership Units may be transferred to such
leading institution in connection with the exercise of its remedies under such
loan;
WHEREAS, Section 11.3.A of the Partnership Agreement also provides
that any transferee of Partnership Units may exercise the exchange and put
rights provided in Section 8.6 of the Partnership Agreement;
WHEREAS, the provisions of the Partnership Agreement are ambiguous as
to the maximum number of Partnership Units that a transferee of pledged
Partnership Units may exchange or put in any Twelve-Month Period under Section
8.6 of the Partnership Agreement;
WHEREAS, the General Partner desires to amend Section 8.6 of the
Partnership Agreement to eliminate such ambiguity;
WHEREAS, the General Partner has obtained the written consent to this
Amendment of Limited Partners representing at least the minimum number of
Partnership Interests (as defined in the Partnership Agreement) required to
amend the Partnership Agreement pursuant to Section 7.3 and Article 14 of the
Partnership Agreement, which written consent is attached as Exhibit A to this
Amendment.
THEREFORE, pursuant to Section 7.3 and Article 14 of the Partnership
Agreement, the General Partner hereby amends the Partnership Agreement as
follows, effective as of the date of this Amendment. Defined terms used in this
Amendment and not otherwise defined herein shall have the same meanings as such
terms have in the Partnership Agreement.
1. Section 8.6.G of the Partnership Agreement is hereby amended by
adding the following at the end the last paragraph of such section:
"In addition, (i) each lending institution, if any, to which
Partnership Units are transferred upon the exercise of
remedies in respect of a Pledge (as defined in Section
11.3A(iii) hereof) as contemplated by Section 11.3A(iii)
hereof (each such lending institution a "Lending Institution
Transferee") shall be entitled to exercise all rights of a
Limited Partner under this Section 8.6 as if such Lending
Institution Transferee were a Limited Partner hereunder,
provided, however, that (a) such Lending Institution
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Transferee shall not be deemed to be a Substituted Limited
Partner for purposes of this Agreement on account of
exercising its remedies against Partnership Units, and (b)
all Lending Institution Transferees of all or any portion of
a Limited Partner's Partnership Interest, together with such
Limited Partner, shall have no greater rights under this
Section 8.6 than are available to such Limited Partner,
whether or not such Lending Institution Transferees act
individually or jointly with each other or such Limited
Partner; (ii) any two or more Lending Institution Transferees
to which Partnership Units were pledged by the same Limited
Partner or any of such Limited Partner's Affiliates may act
jointly in exercising the rights of a
Limited Partner under this Section 8.6; and (iii) for
purposes of determining compliance with the restrictions set
forth in this Paragraph G, all Partnership Units of a Limited
Partner or any of its Affiliates transferred to Lending
Institution Transferees shall be considered to be owned or
held by such Limited Partner or such Affiliate, such that the
maximum number of Partnership Units as to which an Exchange
or Put may be effected by any Lending Institution Transferee
(or any two or more Lending Institution Transferees acting
jointly) at any time shall be the maximum number of
Partnership Units that such Limited Partner would then be
entitled to effect if such Partnership Interests had not been
pledged."
Except as modified by the preceding paragraph, the Partnership
Agreement shall continue in effect in accordance with all of the terms and
conditions contained therein.
IN WITNESS WHEREOF, the General Partner has executed this Amendment as
of the date first written above.
NATIONAL GOLF PROPERTIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President
and Secretary
EXHIBIT A
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WRITTEN CONSENT
OF THE LIMITED PARTNERS
OF
NATIONAL GOLF OPERATING PARTNERSHIP, L.P.
This undersigned, as the limited partners (the "Limited Partners") of
National Golf Operating Partnership, L.P., a Delaware limited partnership (the
"Partnership"), hereby consent to the proposed Second Amendment of Agreement of
Limited Partnership of National Golf Operating Partnership, L.P., to be entered
into by National Golf Properties, Inc., a Maryland corporation, as the general
partner of the Partnership (the "General Partner").
This Written Consent may be executed in two or more counterparts, all
of which shall be considered one and the same agreement and it being understood
that all parties need not sign the same counterpart.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
The ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Revocable Trust
dated July 29, 1985, as amended
___________________________________
By:
Its:
A-1
Exhibit A
---------
WRITTEN CONSENT
OF THE LIMITED PARTNERS
OF
NATIONAL GOLF OPERATING PARTNERSHIP, L.P.
The undersigned, as the limited partners (the "Limited Partners") of
National Golf Operating Partnership, L.P., a Delaware limited partnership (the
"Partnership"), hereby consent to the proposed Second Amendment of Agreement of
Limited Partnership of National Golf Operating Partnership, L.P., to be entered
into by National Golf Properties, Inc., a Maryland corporation, as the general
partner of the Partnership (the "General Partner").
This Written Consent may be executed in two or more counterparts, all
of which shall be considered one and the same agreement and it being understood
that all parties need not sign the same counterpart.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
The ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Revocable Trust
dated July 29, 1985, as amended
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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By:
Its:
A-1
The ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Income Trust
dated August 23, 1988, as amended
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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By:
Its:
The ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 1993 Annuity
Trust dated August 3, 1993
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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By:
Its:
AMERICAN GOLF CORPORATION,
a California corporation
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Executive Vice President
SUPERMARINE AVIATION, LIMITED,
a California corporation
___________________________________
By:
Its:
A-2
RSJ GOLF, INC.,
a California corporation
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Secretary
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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A-3
