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EXHIBIT 10.1.11
ELEVENTH AMENDMENT TO FIRST AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
This Eleventh 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 each of the Limited Partners of the Partnership (the
"Limited Partners") as of January 31, 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 Agreement was amended as of July 31, 1996 to
delay the date until December 31, 1996 by which a registration statement
covering the Redemption Shares was to be filed with the Securities and Exchange
Commission and declared effective.
C. WHEREAS, the Partnership has determined that the costs and expenses of
filing before December 31, 1996 and maintaining a shelf registration statement
effective with the Commission covering the Redemption Shares would impose more
costs and burdens on the General Partner than would other methods of providing
liquidity to those Limited Partners that wish to redeem their Partnership Units
for cash or Redemption Shares.
D. WHEREAS, in order to relieve the Partnership of the obligation to file
the Shelf Registration the Limited Partners holding not less than 66 2/3% of the
Partnership Interests desire to evidence their consent to the amendments
described below.
NOW, THEREFORE, the parties hereto agree as follows:
1. Defined Terms. Article I of the Agreement is hereby amended by adding
the following defined terms in alphabetical order:
"REDEMPTION AMOUNT" means the Cash Amount, or the REIT Shares
Amount, as selected by the General Partner in its sole discretion pursuant to
Section 8.5 hereof, subject to the obligation under Section 8.5(c) hereof in
certain cases to pay the Cash Amount.
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"REDEMPTION SHARES" means all of the REIT Shares issued or to be
issued upon the redemption of Partnership Units under Section 8.5 hereof.
"REGISTERED REDEMPTION SHARES" means any Redemption Shares covered
by a Shelf Registration.
"THRESHOLD CASH AMOUNT" has the meaning provided in Section 8.5(a)
hereof.
2. Redemption Rights.
(a) Section 8.5(a) of the Agreement is hereby amended by adding at
the end of the paragraph the following:
"Notwithstanding the preceding sentence to the contrary, if
the Partnership or the General Partner elects under Section 8.5(c)
to extend the payment date for the Cash Amount, then to the extent a
Partnership Record Date occurs between the Specified Redemption Date
and the date such Cash Amount is paid, the Redeeming Partner shall
receive the distribution relating to such Partnership Record Date
with respect to such Partnership Units being redeemed."
(b) Section 8.5(c) of the Agreement is hereby deleted in its
entirety and the following inserted in its place:
(c) The Partnership or the General Partner, as the case may
be, shall pay the Cash Amount to a Redeeming Partner as the
Redemption Amount for such Limited Partner if:
(i) the acquisition of REIT Shares by such Limited
Partner on the Specified Redemption Date would (A) result in
such Limited Partner or any other person owning, directly or
indirectly REIT Shares in excess of the "Ownership Limit," as
defined in the Articles of Incorporation, (B) result in REIT
Shares being owned by fewer than one hundred (100) persons
(determined as provided by Section 856(a)(5) of the Code),
except as provided in the Articles of Incorporation, (C)
result in the General Partner being "closely held" within the
meaning of Section 856(h) of the Code, (D) cause the Company
to own, directly or constructively, ten percent (10%) or more
of the ownership interests in a tenant of the Company's or the
Partnership's real property, within the meaning of Section
856(d)(2)(B) of the Code, or (E) cause the acquisition of REIT
Shares by such Partner to be "integrated" with any other
distribution of REIT Shares for purposes of complying with the
registration provisions of the Securities Act of 1933, as
amended;
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(ii) there is not an effective registration statement on
file with the Commission covering the Redemption Shares to be
issued upon the redemption of the Partnership Units described
in the Notice of Redemption for such Redeeming Partner (a) as
of the Specified Redemption Date, if the Cash Amount is less
than the Threshold Cash Amount, and (b) within 45 days of the
Specified Redemption Date (and if such date is not a Business
Day, then the next Business Day) if the Cash Amount is more
than the Threshold Cash Amount; or
(iii) the Partnership or the General Partner, as the
case may be, so elects in its sole discretion.
Any Cash Amount to be paid to a Redeeming Partner pursuant to
this Section 8.5 shall be paid on the Specified Redemption Date; provided,
however, that if the Cash Amount to be paid to all Limited Partners who
have sent a Notice of Redemption during the period from the date of
receipt of the initial Notice of Redemption triggering a Specified
Redemption Date and such Specified Redemption Date exceeds $500,000 (the
"Threshold Cash Amount"), then such payment date may be extended for up to
an additional one hundred eighty (180) days to the extent required for the
General Partner to cause additional REIT Shares to be issued to provide
financing to be used to make such payment of the Cash Amount.
Notwithstanding the foregoing, the General Partner and the Partnership
agree to use their best efforts to cause the closing of the acquisition of
redeemed Partnership Units hereunder to occur as quickly as reasonably
possible without incurring unreasonable expense.
(c) Section 8.5(h) is hereby amended by deleting subsection
(iii) and inserting the following in its place:
(iii) The Redeeming Partner shall continue to own all
Partnership Units subject to any redemption for REIT Shares or
the Cash Amount and be treated as a Limited Partner with
respect to such Partnership Units for all purposes (other than
as provided in Section 8.5(f) above) of this Agreement until
such Partnership Units are transferred to the Partnership or
General Partner and the consideration provided by this Section
8.5 is delivered in full on the Specified Redemption Date.
Until the issuance of the Redemption Shares the Redeeming
Partner shall have no rights as stockholder of the General
Partner.
3. Registration. Section 8.6(a) and the first paragraph of Section 8.6(b)
are hereby deleted in their entirety and the following inserted in their place:
"(a) Shelf Registration. In lieu of paying the Cash Amount to a
Redeeming Partner as the Redemption Amount pursuant to Section
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8.5(c)(ii) hereof, the General Partner may file within the
applicable time period required pursuant to Section 8.5(c)(ii)
hereof a shelf registration statement under Rule 415 of the
Securities Act, or any similar rule that may be adopted by the
Commission (the "Shelf Registration"), with respect to all of the
Redemption Shares to be issued upon the redemption of the
Partnership Units described in the Notice of Redemption provided by
the Redeeming Partner entitled to payment under Section 8.5(c)(ii)
hereof. The General Partner may elect in its sole discretion to
register any other Redemption Shares pursuant to the Shelf
Registration or any pre or post-effective amendment thereto. The
General Partner will use its best efforts to have the Shelf
Registration declared effective under the Securities Act as soon as
practicable after filing in order to permit the disposition of the
Registered Redemption Shares by the holders thereof in accordance
with the method or methods of disposition specified by the holders,
and to keep the Shelf Registration continuously effective until the
earlier of (i) the second anniversary of the date the Shelf
Registration is declared effective by the Commission (the "Shelf
Registration Period"); (ii) the date when all of the Registered
Redemption Shares are sold thereunder, or (iii) the date on which
all of the holders of Registered Redemption Shares, pursuant to Rule
144(k) under the Securities Act, may sell the Registered Redemption
Shares without registration under the Securities Act of 1933, as
amended (the "Securities Act"). The General Partner further agrees
to supplement or make amendments to the Shelf Registration, if
required by the rules, regulations or instructions applicable to the
registration form utilized by the Company or by the Securities Act
or rules and regulations thereunder for the Shelf Registration.
Notwithstanding the foregoing, if for any reason the effectiveness
of the Shelf Registration is delayed or suspended or it ceases to be
available for sales of Registered Redemption Shares thereunder, the
Shelf Registration Period shall be extended by the aggregate number
of days of such delay, suspension or unavailability.
(b) Registration and Qualification Procedures. If and to the extent
the General Partner files the Shelf Registration pursuant to the
provisions of Section 8.6(a) above in lieu of making a payment of
the Cash Amount pursuant to Section 8.5(c)(ii) hereof, then the
General Partner will, subject to the provisions of Section 9.8
below:"
4. Amendment of Agreement. Article XI is hereby amended by deleting
subsection (a) in its entirety and inserting the following:
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"(a) any amendment affecting the operation of the Conversion Factor
the Redemption Rights or the Shelf Registration under Section 8.6 hereof"
5. General Provisions. Article 12 of the Agreement is hereby incorporated
by reference as if set forth in full.
6. 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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GENERAL PARTNER LIMITED PARTNERS
SUNSTONE HOTEL INVESTORS, INC., /s/ Robert A. Alter
a Maryland corporation and the sole ----------------------------------------
General Partner Robert A. Alter
By: /s/ Robert A. Alter /s/ C. Robert Enever
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Robert A. Alter C. Robert Enever
Its: President
/s/ Charles L. Biederman
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Charles L. Biederman
MYPC PARTNERS
a general partnership
By: /s/ George W. Yandell
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Its: General Partner
/s/ Anthony VanBaak
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ANTHONY VanBAAK
/s/ Les Liman
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LES LIMAN
/s/ Thomas R. Sharp, Trustee
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THOMAS R. SHARP, TRUSTEE
/s/ Thomas R. Sharp
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THOMAS R. SHARP
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ESTATE OF PETER C. ENEVER,
DECEASED
BY:/s/ C. Robert Enever
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C. ROBERT ENEVER, CO-
PERSONAL REPRESENTATIVE
BY:/s/ Audrey W. Enever
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AUDREY W. ENEVER, CO-
PERSONAL REPRESENTATIVE
STEAMBOAT HOTEL PARTNERS, LTD.
a limited partnership
BY: /s/ DANIEL E. CARSELLO
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Its: General Partner
AND
BY: /s/ ROBERT A. ALTER
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Its: General Partner
TRUST COMPANY OF AMERICA,
for the benefit of Patrick E. Barney
BY: /s/ KRISTI TAYLOR
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Its: Trust Officer
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ENEVER ROUT INVESTMENT
GROUP, LTD, a limited partnership
BY:/s/ C. Robert Enever
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C. ROBERT ENEVER
Its: GENERAL PARTNER
ALTER INVESTMENT GROUP, LTD, a
limited partnership
BY:/s/ Robert A. Alter
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ROBERT A. ALTER
Its: GENERAL PARTNER
RIDGE PARTNERS, a general partnership
BY:/s/ Kenneth B. Hamlet
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KENNETH B. HAMLET
Its: GENERAL PARTNER
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INNS PROPERTIES, a California limited
partnership, formerly known as Inns
Properties I, a California limited
partnership
By INSPAC, LTD., a Delaware corporation,
formerly (and, in California, still
known as INSCO, LTD.), a Delaware
corporation, a General Partner
By: /s/ Richard M. Moss
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Richard M. Moss
Its: President
By WESTPAC SHELTER
CORPORATION, a California
corporation, a General Partner
By: /s/ Dean N. Pananides
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Dean N. Pananides
Its: Secretary
RIVERSIDE HOTEL PARTNERS, INC.
BY: /s/ ROBERT A. ALTER
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ITS: President
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FLAGSTAFF HOTEL ASSETS, INC.,
an Arizona corporation
By: /s/ LARRY KOONIN
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Its: President
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TUCSON DESERT ASSETS, INC.,
an Arizona corporation
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By: /s/ LARRY KOONIN
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Its: President
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