Exhibit 10.1
KILROY REALTY,
L.P.
SECOND AMENDMENT TO FIFTH AMENDED
AND RESTATED
AGREEMENT OF LIMITED
PARTNERSHIP
This Second Amendment to the Fifth
Amended and Restated Agreement of Limited Partnership (this “
Amendment ”) is made as of October 2, 2008 by
Kilroy Realty Corporation, a Maryland corporation, as general
partner (the “ General Partner ”) of Kilroy
Realty, L.P., a Delaware limited partnership (the “
Partnership ”), for the purpose of amending the Fifth
Amended and Restated Agreement of Limited Partnership, dated as of
March 5, 2004, as amended to the date hereof (the “
Partnership Agreement ”).
WHEREAS, the General Partner entered
into a Rights Agreement, dated as of October 2, 1998 (the
“ Rights Agreement ”), pursuant to which the
General Partner distributed to holders of the General
Partner’s common stock rights to purchase shares of a newly
authorized class of preferred stock (the “ Rights Plan
”);
WHEREAS, it is necessary to amend
the Partnership Agreement to reflect the expiration of the Rights
Agreement;
WHEREAS, pursuant to
Section 7.3.E(3) of the Partnership Agreement, the General
Partner may, without the Consent of the Limited Partners (as such
term is defined in the Partnership Agreement) amend the Partnership
Agreement to reflect a change that is of an inconsequential nature
and does not adversely affect the Limited Partners in any material
respect, or to cure any ambiguity in, correct or supplement any
provision in, or make other changes with respect to matters arising
under, the Partnership Agreement that will not be inconsistent with
law or with the provisions of the Partnership Agreement;
WHEREAS, the General Partner
believes that none of the actions taken pursuant to this Amendment
adversely affect the Limited Partners in any material respect or
are inconsistent with law or with the provisions of the Partnership
Agreement; and
WHEREAS, the General Partner and the
Partnership believe it is desirable and in the best interest of the
Partnership to amend the Partnership Agreement as set forth
herein.
NOW THEREFORE, in consideration of
the premises set forth above, the General Partner, on behalf of
itself and the Limited Partners, undertakes to implement the
following amendments to the Partnership Agreement:
Defined Terms.
Capitalized terms used without
definition in this Amendment shall have the meaning given to each
such term in the Partnership Agreement.
Amendments.
Section 1.1 .
The definition of “ Deemed Value of the
Partnership Interests ” set forth in Section 1.1 of
the Partnership Agreement is hereby deleted in its entirety and
replaced with the following:
“ Deemed Value of the
Partnership Interests ” means, as of any date with
respect to any class or series of Partnership Interests
(i) the total number of Partnership Units of the General
Partner in such class of Partnership Interests (as provided for in
Sections 4.1 and 4.3.C) issued and outstanding as of the close of
business on such date multiplied by the sum of (x) the Fair
Market Value of the number of shares of capital stock of the
General Partner which corresponds to one Partnership Unit such
class or series of Partnership Interests on such date (as adjusted
pursuant to Section 7.5 (in the event the General Partner
acquires material assets, other than on behalf of the Partnership)
and for stock dividends and distributions, stock splits and
subdivisions, reverse stock splits and combinations, distributions
of rights, warrants or options, and distributions of evidences of
indebtedness or assets relating to assets not received by the
General Partner pursuant to a pro rata distribution by the
Partnership); divided by (ii) the Percentage Interest of the
General Partner in such class or series of Partnership Interests on
such date; provided, that, if no outstanding shares of capital
stock of the General Partner correspond to a class of series of
Partnership Interests, the Deemed Value of Partnership Interests
with respect to such class or series shall be equal to an amount
reasonably determined by the General Partner. Without limiting the
generality of the foregoing, the Deemed Value of the Partnership
Interests referenced in the preceding sentence shall be adjusted
for the issuance, distribution and triggering of exercisability of
the Rights (which adjustment shall be made as necessary to
equitably reflect the dilution in REIT Shares resulting from the
issuance and exercise of outstanding Rights, if any, in each case
taking into account any increase pursuant to Section 4.5.B in
the number of Partnership Units held by the Limited
Partners).
The definition of “ Fair
Market Value ” set forth in Section 1.1 of the
Partnership Agreement is hereby deleted in its entirety and
replaced with the following:
“ Fair Market Value
” means, with respect to any security of the General Partner,
the average of the daily market price for the ten
(10) consecutive trading days immediately preceding the date
with respect to which “ Fair Market Value ” must
be determined hereunder or, if such date is not a Business Day, the
immediately preceding Business Day. The market price
