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EXHIBIT 10.3
FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF EOP OPERATING LIMITED PARTNERSHIP
THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP OF EOP OPERATING LIMITED PARTNERSHIP (this "AMENDMENT"), dated
August 21, 2000, is entered into by EQUITY OFFICE PROPERTIES TRUST, a Maryland
real estate investment trust, as the general partner (the "GENERAL PARTNER") of
EOP Operating Limited Partnership, a Delaware limited partnership (the
"PARTNERSHIP"), for itself and on behalf of itself and the Limited Partners of
the Partnership, and those persons whose signatures are set forth on the
signature pages attached hereto.
WHEREAS, on the date hereof, NORTH LOOP-TREMONT PARTNERSHIP, an Illinois
partnership ("CONTRIBUTOR"), is receiving 94,106 Class B Units of limited
partnership interest in the Partnership ("OP UNITS") in exchange for its limited
partnership interest in ECH-North Loop/Theater District Parking Limited
Partnership ("ECHNLT"), pursuant to a closing under, and as more particularly
described in, that certain Contribution Agreement (the "CONTRIBUTION AGREEMENT")
dated November 6, 1997, by and between the Contributor, the Partnership,
ECH-Chicago Parking Limited Partnership ("ECH") and the constituent partners of
Contributor (the "CONSTITUENT PARTNERS") and that certain Settlement Agreement
and Release of Claims by and between the Partnership, ECH, Contributor and the
Constituent Partners;
WHEREAS, the principal assets of ECHNLT are the parking garages
(collectively, the "PROPERTIES") commonly known as: (i) the Theater District
Self Park, Chicago, Illinois ("TD SELF PARK"); and (ii) the North Loop
Transportation Center, Chicago, Illinois ("NLTC");
WHEREAS, pursuant to the authority granted to the General Partner under the
Second Amended and Restated Agreement of Limited Partnership of EOP Operating
Limited Partnership dated as of June 19, 2000, (the "PARTNERSHIP AGREEMENT"),
the General Partner desires to amend the Partnership Agreement to reflect (i)
the admission of the Contributor as an Additional Limited Partner and the holder
of the OP Units and (ii) the agreements by and among the Partnership and the
Contributor as to certain other matters set forth on Exhibit B to this
Amendment; and
WHEREAS, the Contributor desires to become a party to the Partnership
Agreement and to be bound by all of the terms, conditions and other provisions
of this Amendment, the Exhibits hereto, and the Partnership Agreement;
NOW, THEREFORE, in consideration of the premises set forth above and for
other good and valuable consideration, the receipt and sufficiency of which
hereby are acknowledged, the General Partner hereby amends the Partnership
Agreement as follows:
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1. RESTATEMENT OF EXHIBIT A. Exhibit A to the Partnership Agreement hereby
is amended to reflect the admission of Contributor as an Additional Limited
Partner to the Partnership hereby. Exhibit "A" attached to this Amendment
contains the name, address, Capital Account, number of Partnership Units and
Percentage Interest of Contributor and shall be deemed attached to, and an
addendum of, Exhibit A to the Partnership Agreement for all relevant purposes.
2. AMENDMENT AND RESTATEMENT OF EXHIBIT E. Exhibit E to the Partnership
Agreement is hereby amended by attaching and adding Exhibit B to this Amendment,
which sets forth specific agreements regarding certain additional rights and
obligations of the Contributor, as Exhibit E-7 to the Partnership Agreement.
Further, Exhibit E to the Partnership Agreement shall be restated to designate
Contributor as a Part II Protected Partner. Exhibit E shall be further amended
by adding the following new explanatory note, which shall appear as an
annotation to Part II Protected Partner added to such Exhibit E pursuant to the
preceding sentence of this paragraph 2:
(7) Protected Amount is as provided for in Exhibit E-7.
3. REPRESENTATIONS AND WARRANTIES. The General Partner hereby represents
and warrants to Contributor that the General Partner has the authority to
execute and enter into this Amendment without obtaining the consent of the
Limited Partners.
4. DEFINED TERMS. All capitalized terms used in this Amendment and not
otherwise defined shall have the meanings assigned to them in the Partnership
Agreement. Except as modified herein, all terms and conditions of the
Partnership Agreement shall remain in full force and effect, which terms and
conditions the General Partner hereby ratifies and affirms.
5. TIME IS OF THE ESSENCE. Time is of the essence of each and every
provision of this Amendment.
IN WITNESS WHEREOF, the undersigned has executed this Amendment as of
the date first set forth above.
EQUITY OFFICE PROPERTIES TRUST, a
Maryland real estate investment
trust, the General Partner of EOP
Operating Limited Partnership and on
behalf of existing Limited Partners
By: /s/ Laura Gerard Hassan
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Name: Laura Gerard Hassan
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Title: Vice President
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2
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CONTRIBUTOR:
NORTH LOOP-TREMONT PARTNERSHIP, an Illinois
partnership
By: North Loop Transportation Center Limited
Partnership, an Illinois limited
partnership, as a Constituent Partner
By: Richard A. Stein Development Company,
Inc., an Illinois corporation, as its
general partner and individually in its
capacity as a Constituent Partner
By: /s/ Richard A. Stein
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Its:
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By: Ruvir Corporation, a California
corporation, as its general partner and
individually in its capacity as a
Constituent Partner
By: /s/ G. Richard Katzenbach
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Its:
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By: Myron C. Warshauer Development Company,
Inc. an Illinois corporation, as its
general partner and individually in its
capacity as a Constituent Partner
By: /s/ Myron C. Warshauer
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Its:
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By: Bronco Ltd., a California limited
partnership, as its limited partner and
individually in its capacity as a
Constituent Partner
By: /s/ G. Richard Katzenbach
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Its:
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3
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By: /s/ Myron C. Warshauer
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Myron C. Warshauer, as its limited
partner and individually in its
capacity as a Constituent Partner
By: /s/ Richard A. Stein
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Richard A. Stein, as its limited
partner and individually in its
capacity as a Constituent Partner
By: /s/ Richard A. Hanson
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Richard A. Hanson, as its limited
partner and individually in its
capacity as a Constituent Partner
By: Tremont Theatre Row Partnership, an
Illinois limited partnership, as a
partner and individually in its
capacity as a Constituent Partner
By: Stein & Company Theatre District
Self-Park, Inc., an Illinois
corporation, as its general partner
and individually in its capacity as a
Constituent Partner
By: /s/ Richard A. Stein
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Its:
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By: Ruvir Corporation, a California
corporation, as its general partner
and individually in its capacity as a
Constituent Partner
By: /s/ G. Richard Katzenbach
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Its:
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By: Double R/Tremont Partnership, an
Illinois general partnership, as its
limited partner and individually in
its capacity as a Constituent Partner
4
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By: /s/ Richard A. Stein
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Its:
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By: Bronco Ltd, a California limited
partnership, as its limited partner
and individually in its capacity as a
Constituent Partner
By: /s/ G. Richard Katzenbach
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Its:
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By: /s/ Myron C. Warshauer
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Myron C. Warshauer, as its limited
partner and individually in its
capacity as a Constituent Partner
By: /s/ Stanley Warshauer
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Stanley Warshauer, as its limited
partner and individually in its
capacity as a Constituent Partner
By: /s/ Steven A. Warshauer
-------------------------------------
Steven A. Warshauer, as its limited
partner and individually in its
capacity as a Constituent Partner
5
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EXHIBIT A
CLASS B UNITS
-------------
INITIAL
PARTNERSHIP CAPITAL PERCENTAGE
NAME AND ADDRESS OF PARTNER UNITS ACCOUNT INTEREST
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EXHIBIT B
EXHIBIT E-7
(ECH-NORTH LOOP/THEATER DISTRICT PARKING AGREEMENT)
BACKGROUND
On August 21, 2000, in connection with the closing of the Contribution
Agreement by and between North Loop-Tremont Partnership, an Illinois
partnership, ("Contributor"), the Partnership, ECH-Chicago Parking Limited
Partnership ("ECH"), and the Constituent partners of Contributor (the
"Constituent Partners"), dated November 6, 1997 and the Settlement Agreement and
Release of Claims by and between the Partnership, ECH, Contributor and the
Constituent Partners, Contributor received 91,406 Class B units of limited
Partnership Interest in the Partnership (the "ECHNLT Units") in exchange for its
limited partnership interest in ECH-North Loop/Theater District Parking Limited
Partnership. In connection with the issuance of the ECHNLT Units, the First
Amendment to the Agreement (the "FIRST AMENDMENT") was executed adding this
Exhibit E-7 to the Agreement, setting forth specific agreements regarding
additional rights and obligations of the Contributor with respect to the ECHNLT
Units. Such specific agreements are set forth below.
All Capitalized terms used and not otherwise defined in this Exhibit E-7
have the meanings assigned in the Agreement.
SPECIFIC AGREEMENTS
1. ADMISSION TO PARTNERSHIP. Contributor is hereby admitted to the Partnership
as an Additional Limited Partner in accordance with Section 12.2 of the
Agreement and hereby agrees to become a party to the Agreement and to be
bound by all of the terms, conditions and other provisions of the
Agreement, including, but not limited to, the power of attorney set forth
in Section 15.11 of the Agreement.
2. RIGHT TO ASSIGN. Notwithstanding any other provision of this Exhibit E-7,
the Agreement or the First Amendment, Contributor shall have the right to
assign at any time and from time to time all or any portion of its ECHNLT
Units, together with any and all other rights of Contributor pursuant to
this Exhibit E-7 or the Agreement, to one or more of the constituent
partners or shareholders, members, partners or beneficiaries of constituent
partners of Contributor on the date hereof, whether direct or indirect,
without the need for the consent of the General Partner or any other
General Partner or Limited Partner and without being subject to the right
of first refusal set forth in Section 11.3.A(a) of the Agreement, but in
each case subject to the restrictions and conditions set forth in Sections
11.3.C, 11.3.D, 11.3.E, 11.6.E and 11.6.F of the
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Agreement. Upon the delivery of written notice of such an assignment to the
General Partner, each assignee of ECHNLT Units pursuant to the immediately
preceding sentence shall be admitted to the Partnership as a Substituted
Limited Partner owning the ECHNLT Units so assigned and having all of the
rights of a Limited Partner under the Agreement, the First Amendment
thereto and this Exhibit E-7, subject only to such assignee executing and
delivering to the Partnership an acceptance of all of the terms and
conditions of the Agreement and such other documents or instruments as the
General Partner may reasonably require to effect such admission, in
accordance with Section 11.4.B of the Agreement. Each permitted assignee of
any of the ECHNLT Units issued to the Contributor pursuant to the
Contribution Agreement that is admitted as a Substituted Limited Partner in
accordance with this Section 2 or Article XI of the Agreement, for so long
as such Person owns any such ECHNLT Units, is referred to in this Exhibit
E-7 as an "INDIRECT EQUITY HOLDER." Upon satisfaction of the condition
described in the second sentence of this Section 2, the General Partner
shall amend Exhibit A to the Agreement in the manner described in Section
11.4.C of the Agreement. For purposes of Section 8.6 of the Agreement,
Contributor and each Indirect Equity Holder shall be entitled to exercise
its right to require the Partnership to redeem all or any portion of the
ECHNLT Units at any time on or after the first anniversary date of the
issuance of the ECHNLT Units to Contributor.
3. PRE-CONTRIBUTION GAIN. Contributor shall be allocated gain in accordance
with Section 704(c) of the Code upon the sale, transfer, conveyance or
disposition, directly or indirectly, of either or both Properties (as such
term is defined in the First Amendment) (such gain being hereinafter
referred to as "PRE-CONTRIBUTION GAIN"). Notwithstanding anything contained
in the Agreement to the contrary, the Pre-Contribution Gain allocable to
Contributor pursuant to Section 704(c) of the Code in connection with any
sale, transfer, conveyance or disposition, directly or indirectly, of the
Properties shall be, in aggregate and as of the date hereof, $12,424,927 in
respect of the TD Self Park (as such term is defined in the First
Amendment) and $35,127,926 in respect of NLTC (as such term is defined in
the First Amendment), as each such amount is hereafter reduced in
accordance with the provisions of Section 704(c) of the Code and Exhibit C,
Paragraph 2 of the Agreement. The provisions of Exhibit C, Paragraph 2 to
the Agreement shall be applicable with respect to the allocation of income,
gain, loss and deduction pursuant to Section 704(c) of the Code to
Contributor.
4. ALLOCATIONS. Notwithstanding any contrary provision in the Agreement, for
purposes of allocating items of income, gain, loss and deduction with
respect to the Properties in the manner required by Section 704(c) of the
Code, the Partnership shall employ, and shall cause any entity controlled
by the Partnership which holds title to any of the Properties to employ,
the "traditional method" as set forth in Regulation Section 1.704-3(b).
5. OBLIGATION TO RESTORE DEFICIT CAPITAL ACCOUNTS. Contributor shall be a Part
II Protected Partner pursuant to the Agreement for all relevant purposes.
The Protected Amount allocable to Contributor pursuant to the Agreement
shall be the amount
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designated on Schedule 1 to this Exhibit E-7 as the Protected Amount for
Contributor. Notwithstanding anything contained in the Agreement to the
contrary, any Indirect Equity Holder that is admitted as a Substitute
Limited Partner pursuant to, and in accordance with, Section 2 to this
Exhibit E-7 above shall be admitted as a Part II Protected Partner if and
only if all of the following conditions are satisfied: (i) such Indirect
Equity Holder shall expressly assume, in writing, all of the liabilities
and obligations of a Part II Protected Partner pursuant to the Agreement
for the benefit of the General Partner and the Partnership (such written
assumption agreement, an "ASSUMPTION AGREEMENT"); (ii) such Indirect Equity
Holder shall designate its Protected Amount in the Assumption Agreement,
which Protected Amount shall be approved by Contributor (or the applicable
immediate predecessor-in-interest to such Indirect Equity Holder) in
writing; and (iii) the aggregate Protected Amount, at any time, allocated
to Contributor and any and all Indirect Equity Holders allocated a
Protected Amount pursuant to this sentence shall not exceed the Protected
Amount presently allocated to Contributor on Schedule 1 to this Exhibit
E-7.
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SCHEDULE 1 TO EXHIBIT E-7
PART II PROTECTED PARTNER PROTECTED AMOUNT
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