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EXHIBIT 10.5
AMENDMENT TO
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
FOR
MHC OPERATING LIMITED PARTNERSHIP
THIS
AMENDMENT TO SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP FOR MHC OPERATING LIMITED PARTNERSHIP (this
"Amendment") is entered
into and shall be effective for all purposes as of the 27th of
February, 2004,
by and between MHC Trust, a Maryland real estate investment trust
(the "General
Partner" or "MHC Trust"), the incoming General Partner of MHC
Operating Limited
Partnership, an Illinois limited partnership (the "Partnership")
and
Manufactured Home Communities, Inc., a Maryland corporation ("MHC,
Inc."), as
the withdrawing General Partner of the Partnership.
W I T N E S S E T H:
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WHEREAS, the Partnership is governed by that certain Second Amended
and
Restated Agreement of Limited Partnership dated as of March 15,
1996, as amended
(collectively, the "Partnership Agreement") (capitalized terms used
but not
defined herein have the meanings set forth in the Partnership
Agreement);
WHEREAS, pursuant to that certain Assignment and Assumption
Agreement of
even date herewith, MHC, Inc., has assigned its entire Partnership
Interest in
the Partnership to MHC Trust and withdrawn as the General Partner
of the
Partnership;
WHEREAS, pursuant to Sections 16.2 and 16.5 of the Partnership
Agreement,
the Partners have consented to this Amendment; and
WHEREAS, the Partners desire to amend the Partnership Agreement to
reflect
the withdrawal of MHC, Inc. as the General Partner and the
admission of MHC
Trust as a substitute General Partner of the Partnership and
certain other
changes.
NOW,
THEREFORE, in consideration of the mutual promises herein
contained
and intending to be legally bound hereby, the Partners agree as
follows:
1.
The Partners hereby ratify and approve the transfer and assignment
by
MHC, Inc. of its entire Partnership Interest to MHC Trust.
2.
The Partners hereby admit MHC Trust as a substitute General Partner
of
the Partnership, effective as of the date hereof. MHC Trust hereby
accepts and
agrees to be bound by the terms and conditions of the Partnership
Agreement, as
amended hereby. All of the
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requirements contained in the Partnership Agreement relating to the
transfer and
assignment of such Partnership Interest and such admission have
been satisfied
or waived.
3.
Notwithstanding anything contained to the contrary in the
Partnership
Agreement, for all purposes of the Partnership Agreement, the term
"General
Partner" shall refer only to "MHC Trust" and the term "Company"
shall refer only
to "MHC, Inc."
4.
MHC Trust and MHC, Inc. shall file a Certificate of Amendment to
the
Certificate of Limited Partnership with the Secretary of State of
Illinois
reflecting the admission of MHC Trust as the substitute General
Partner and the
withdrawal of MHC, Inc. as the General Partner of the
Partnership.
5.
The Partnership Agreement is hereby further amended as follows:
(i) Section 2 is
hereby amended as follows:
a. The definition of "Company" is hereby amended by deleting
the
following phrase "and the General Partner of the Partnership."
b. The definition of "General Partner" is hereby deleted in its
entirety and the following inserted in lieu thereof: "General
Partner" shall
mean MHC Trust, a Maryland real estate investment trust."
c. A new definition shall be inserted as follows: "MHC Trust"
shall mean MHC Trust, a Maryland real estate investment trust.
(ii) Section 3.2(B)(i) is hereby deleted in its entirety and
the
following inserted in lieu thereof: "OP Units to MHC Trust, upon
the issuance by
MHC Trust of additional Common Shares to the Company following the
issuance by
the Company of additional Common Shares (other than in exchange for
OP Units)
and the contribution of the net proceeds thereof as a Capital
Contribution by
the Company to MHC Trust and the contribution of such proceeds by
MHC Trust to
the Partnership as provided for in Section 3.3(B) below, it being
understood,
however, that the Company may issue Common Shares in connection
with share
option plans, dividend reinvestment plans, restricted share plans
or other
benefit or compensation plans (for example, shares issued in lieu
of fees or
compensation) without receiving any proceeds and that the issuance
of such
Common Shares shall nonetheless entitle MHC Trust to additional OP
Units
pursuant to this clause (i);"
(iii) Section 3.2(B)(ii), (iii) and (v) are hereby amended by
deleting
the following phrase "(including the Company)" where it appears and
inserting
the following in lieu thereof: "(including MHC Trust)" .
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(iv) Section 3.2(B)(iv) is hereby deleted in its entirety and
the
following inserted in lieu thereof: "(iv) Preference Units to MHC
Trust upon the
issuance by the Company of securities other than Common Shares
(whether debt or
equity securities) (`Other Securities') and the contribution of the
net proceeds
thereof as a Capital Contribution to MHC Trust and the contribution
of such net
proceeds by MHC Trust to the Partnership as provided for in Section
3.3(8)
below; and"
(v) Section 3.2(B)(a) is hereby deleted in its entirety and the
following inserted in lieu thereof: "the number of OP Units issued
to MHC Trust
under clause (i) of this section 3.2(B) shall be equal to the
number of Common
Shares issued by the Company;"
(vi) Section 3.2(C) is hereby amended as follows:
a. Commencing with the second sentence thereof, the language
"Such right may be exercised by a Limited Partner at any time and
from time to
time upon not less than ten (10) days prior written notice to the
Company. Upon
receipt of such a request, the Company may, in its discretion, in
lieu of
issuing Common Shares, cause the Partnership" is hereby amended to
read as
follows: "Such right may be exercised by a Limited Partner at any
time and from
time to time upon not less than ten (10) days prior written notice
to the
General Partner and the Company. Upon receipt of such a request,
the Company
may, in its discretion, in lieu of issuing Common Shares, cause the
General
Partner to cause the Partnership".
b. The following language contained therein: "the term
`Company'
or `General Partner' shall thereafter be deemed to refer to the
`Successor
Issuer', except in each case as
