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EXHIBIT 10.1.10
TENTH AMENDMENT TO FIRST AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
This Tenth Amendment ("Amendment") to the First Amended and Restated
Agreement of Limited Partnership, is entered into by and among Sunstone Hotel
Investors, Inc., a Maryland corporation, in its individual capacity (the
"Company") and in its capacity as the General Partner of the Partnership (the
"General Partner") and SHIVANI, LLC, a California limited liability company, as
a newly admitted limited partner of the Partnership (the "Additional Limited
Partner") as of January 17, 1997. All defined terms not otherwise defined herein
shall have the meaning set forth in the Agreement (as defined below).
RECITALS
A. WHEREAS, the General Partner and certain Limited Partners executed that
certain First Amended and Restated Agreement of Limited Partnership dated as of
October 16, 1995, amending and restating that certain Limited Partnership
Agreement dated as of September 22, 1994 (as amended, the "Agreement"), and the
General Partner caused Sunstone Hotel Investors, L.P. (the "Partnership") to
file a Certificate of Limited Partnership with the Delaware Secretary of State
on September 23, 1994, thereby causing the Partnership to be formed for the
purposes set forth in the Agreement.
B. WHEREAS, the Partnership has entered into a Capital Contribution
Agreement dated as of December 5, 1996 (the "Contribution Agreement") with the
Additional Limited Partner pursuant to which the Additional Limited Partner has
agreed to accept the Partnership Units in exchange for the contribution of the
Hotel described on Schedule 1 attached hereto (the "Additional Hotel"), subject
to certain indebtedness on the Additional Hotel.
C. WHEREAS, in order to evidence the issuance of the Partnership Units and
the admission of the Additional Limited Partner into the Partnership, the
parties hereto desire to enter into this Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. Issuance of Additional Partnership Units. Pursuant to Section 4.2(a) of
the Agreement, the General Partner hereby issues a Partnership Interest in the
form of the number of Partnership Units listed on the Unitholder Ledger to the
Additional Limited Partner in consideration for the contribution of the
Additional Hotel pursuant to the terms of the Contribution Agreement. Such
issuance shall be deemed effective, and the Additional Limited Partner shall be
deemed admitted as a Limited Partner automatically upon the closing of the
Contribution Agreement and all references to "Limited Partner" in the Agreement
shall include the Additional Limited Partner. The Partnership Interest issued in
the foregoing sentence shall have all of the same rights, powers and duties and
shall be equal in all respects to the existing
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Partnership Interests issued to the existing Limited Partners specifically
including, without limitation, the Redemption Rights granted pursuant to Section
8.5 of the Agreement, and the Registration Rights granted pursuant to Section
8.6 of the Agreement.
2. Allocations of Profit and Loss and Distributions.
a. Pre-Closing Hotel Profits and Losses. All profits, losses and
other items earned or incurred with respect to the Additional Hotel on or prior
to the Closing Date shall be allocated to the Additional Limited Partner. All
Profits, Losses and other taxable items earned or incurred after the Closing
Date (as defined in the Contribution Agreement) shall be for the account of the
Partnership. The General Partner and the Additional Limited Partner shall
determine the amount of such items incurred or earned on or prior to the, as
opposed to after the, Closing Date in any reasonable manner permitted under the
Internal Revenue Code of 1986, as amended (the "Code") and the Regulations.
b. No Right to Distribution for Pre-Closing Hotel Profits. Except as
provided to the contrary in the Contribution Agreement, the Additional Limited
Partner shall not be entitled to any special distributions (or to retain any
amounts) with respect to any income generated by the Additional Hotel that may
be allocated to it for the period on or prior to the Closing Date.
c. No Right to Partnership Distribution for Fourth Quarter 1996.
Notwithstanding Section 5.2(a) of the Agreement to the contrary, the
Additional Limited Partner shall not be entitled to the distribution for the
fourth quarter of 1996.
d. Proration of Distribution for First Quarter 1997. Notwithstanding
any provision in the Agreement to the contrary, the Additional Limited Partner
shall only be entitled to a pro rata distribution of the distribution for the
quarter ending March 31, 1997 equal to normal dividend paid to all other
Partners multiplied by a fraction, the numerator of which is the number of days
in 1997 from the Closing Date through March 31st and the denominator of which is
90.
e. Capital Accounts; Fourth Quarter 1996 Allocations. Upon the
admission of the Additional Limited Partner, the Partners' respective Capital
Accounts shall be adjusted to reflect the fair market value of the Partnership's
assets as prescribed in Section 4.4 of the Agreement. For purposes of
determining the Partners' respective Capital Accounts and making allocations in
the quarter ending March 31, 1997:
(1) The distribution for the fourth quarter of 1996 shall be
deemed to have been made prior to the aforementioned Capital Account
adjustment and prior to the capital contribution date.
(2) Notwithstanding anything in this Agreement to the
contrary, the Profits, Losses and any items thereof for the quarter ending
March 31, 1997, shall be allocated among the Partners so that the per-Unit
Capital Account of the Additional
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Limited Partner is equal to the per-Unit Capital Accounts of the existing
Limited Partners as of the end of such quarter, after taking into account
the distribution for said quarter.
3. Restrictions on Transfer. Notwithstanding any other provision in the
Agreement to the contrary, the Additional Limited Partner shall not convey,
assign, distribute, or otherwise voluntarily or involuntarily transfer (other
than a Pledge permitted under the Agreement) to any person, including any other
partner, any of the Partnership Units (or any other substitute securities or
other securities received on account of such Partnership Units) held by the
Additional Limited Partner at any time prior to January 17, 1998.
4. Lock-Up Agreements. In addition to the restrictions in Section 3 above,
the Additional Limited Partner shall execute a lock-up agreement at the request
of the managing underwriter in connection with any public underwritten
securities offering by the General Partner on the same terms and conditions as
any such agreement executed by Mr. Robert A. Alter, but in no event shall such
lock-up period exceed 120 days after the first date that any shares are released
for sale to the public. As a condition to any transfer of Partnership Units or
Redemption Shares otherwise permitted under the Agreement, the Additional
Limited Partner shall cause any shareholder or other affiliate who receives any
Partnership Units from the Additional Limited Partner to agree to be subject to
the obligation to execute such a lock-up agreement.
5. Amendment of Agreement. Article XI of the Agreement is hereby amended
by deleting at the end of the provision in the first sentence of Article XI the
phrase "(other than the General Partner)" and inserting the following
"(excluding the Percentage Interests held in the name of the General Partner of
the Partnership or held by any entity which is controlled by the General
Partner, whether as the General Partner or a Limited Partner)".
6. Power of Attorney. The Additional Limited Partner hereby irrevocably
constitutes and appoints the General Partner, any Liquidator, and authorized
officers and attorneys-in-fact of each, and each of those acting singly, in each
case with full power of substitution, as its true and lawful agent and
attorney-in-fact, with full power and authority in its name and place instead to
perform any of the acts set forth in Section 8.2 of the Agreement.
7. General Provisions. Article 12 of the Agreement is hereby incorporated
by reference as if set forth in full.
8. Effect of Amendment. Except as amended hereby, the Agreement is hereby
confirmed in all respects.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
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ADDITIONAL LIMITED PARTNER
GENERAL PARTNER SHIVANI, LLC
a California limited liability company
SUNSTONE HOTEL INVESTORS, INC.,
a Maryland corporation and the sole
General Partner
By: /s/ Robert A. Alter By: /s/ Tushar Patel
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Robert A. Alter Tushar Patel
Its: President Member/Manager
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