Exhibit 10.7
XXXXXXX OPERATING LIMITED PARTNERSHIP
FORM OF AMENDMENT TO THE SECOND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP
This Amendment to the Second Restated Agreement of Limited Partnership
of Xxxxxxx Operating Limited Partnership, dated March [__], 2002 (this
"AMENDMENT") amends the Second Restated Agreement of Limited Partnership of
Xxxxxxx Operating Limited Partnership, dated September 2, 1997, as amended, by
and among Heritage-Xxxxxx Acquisition, Inc. (f/k/a Xxxxxxx Real Estate, Inc.,
the "GENERAL PARTNER") and those Limited Partners whose names appear on the
signature pages thereto (the "PARTNERSHIP AGREEMENT"). Capitalized terms not
otherwise defined in this Amendment shall have the meanings given to such terms
in the Partnership Agreement.
WHEREAS, pursuant to Section 17.1 of the Partnership Agreement, the
General Partner, without the consent of the Limited Partners, may amend the
Partnership Agreement by executing a written instrument setting forth the terms
of such amendment;
WHEREAS, the General Partner deems it advisable to amend the
Partnership Agreement; and
WHEREAS, the General Partner has determined that for all purposes under
the Partnership Agreement, the amendment to the Partnership Agreement set forth
below does not materially and adversely affect the powers, special rights,
preferences, privileges or voting power of the Series B Preferred Units or the
Series C Preferred Units nor does such amendment alter or change the
distribution rights of any Limited Partner under Article 8 of the Partnership
Agreement or the redemption rights of any Limited Partner under Section 3.2 of
the Partnership Agreement;
NOW THEREFORE, based on the foregoing, the Partnership Agreement is
hereby amended as follows:
1. ISSUANCE OF UNITS. Section 3.1(F) of the Partnership Agreement is
hereby amended by inserting at the end of the second paragraph of such
subsection (F) the following new sentence:
"Notwithstanding the provisions of the first paragraph of this
subsection (F) or any other provision of this Agreement to the
contrary, nothing in this Agreement shall require that
Heritage or the General Partner contribute to the Partnership
the Net Proceeds from the issuance of New Securities, whether
such securities are issued by Heritage or the General Partner,
and Heritage or the General Partner shall be permitted to
retain and/or use such Net Proceeds as determined by Heritage
or the General Partner in its sole discretion, in all cases,
unless, at the time of such issuance of New Securities, any
distribution required to be paid to the Limited Partners under
this Agreement shall be due and not paid in full, in
which case, Heritage or the General Partner shall contribute
to the Partnership an amount of Net Proceeds sufficient to pay
such distribution."
2. SEVERABILITY. In the event that a court of competent jurisdiction
determines that this Amendment materially and adversely affects the powers,
special rights, preferences, privileges or voting power of the Series B
Preferred Units or the Series C Preferred Units or alters or changes the
distribution or redemption rights of any Limited Partner under the Partnership
Agreement, this Amendment shall be deemed modified to the extent necessary so
that this Amendment does not materially and adversely affect the powers, special
rights, preferences, privileges or voting power of the Series B Preferred Units
or the Series C Preferred Units or alter or change the distribution or
redemption rights of any Limited Partner under the Partnership Agreement.
3. 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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IN WITNESS WHEREOF, this Amendment has been executed as of the date
first above written.
HERITAGE-XXXXXX ACQUISITION, INC.
By:
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Name: Xxxxxx X. Xxxxxxxxxxx
Title: President and Chief
Executive Officer
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