Exhibit 10.1
KILROY REALTY, L.P.
THIRD AMENDMENT TO FIFTH AMENDED AND
RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
This Third Amendment to the Fifth
Amended and Restated Agreement of Limited Partnership (this “
Amendment ”) is made as of May 21, 2009 by and among
Kilroy Realty Corporation, a Maryland corporation, as general
partner (the “ General Partner ”) of Kilroy
Realty, L.P., a Delaware limited partnership (the “
Partnership ”), and the other parties listed on the
signature pages hereto, 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 signatories hereto
desire to amend the Partnership Agreement as set forth
herein;
NOW THEREFORE, in consideration of
the foregoing, the mutual promises set forth herein and other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the signatories hereto, intending to be
legally bound, agree to continue the Partnership and amend the
Partnership Agreement as follows:
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
.
Section 1.1 of the
Partnership Agreement is hereby amended to include the following
new definition:
“ Adjusted Net Income
” means for each fiscal year of the Partnership, an amount
equal to the Partnership’s Net Income or Net Loss for such
fiscal year, computed without regard to the items set forth below,
provided if the Adjusted Net Income for such fiscal year is a
negative number (i.e., a net loss), then the Adjusted Net Income
for that fiscal year shall be treated as if it was zero:
(a) Depreciation; and
(b) Net gain or loss realized in
connection with the actual or hypothetical sale of all or
substantially all of the assets of the Partnership, including but
not limited to net gain or loss treated as realized in connection
with an adjustment to the Gross Asset Value of the
Partnership’s assets as set forth in the definition of such
term.
The following definition in
Section 1.1 of the Partnership Agreement is hereby amended as
follows:
The last paragraph of the definition
of “Net Income or Net Loss” shall be
deleted.
Section 6.5 .
The following new
Section 6.5 is inserted in the Partnership
Agreement:
Section 6.5. Special
Allocations
A. Notwithstanding the provisions in
Sections 6.1, 6.2.B.1 and 6.2.B.2, but subject to the other
provisions of this Article 6, if the Partnership has positive
Adjusted Net Income for a fiscal year, such Adjusted Net Income
shall first be allocated to the Holders of Senior Preferred Units
under Section 6.2.B.1(e) for such fiscal year, with the
remaining items of Net Income or Net Loss allocated to the Partners
pursuant to Sections 6.2.B.1 and 6.2.B.2.
B. Notwithstanding the provisions of
Sections 6.1, 6.2.B.1 and 6.2.B.2, but subject
