EX-3.5 3 exh_35.htm EXHIBIT 3.5

EXHIBIT 3.5

 

ADMISSION AMENDMENT

 

THIRD AMENDMENT

TO

SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP

OF

RETAIL OPPORTUNITY INVESTMENTS PARTNERSHIP, LP

This Third Amendment (this “Amendment”) to the Partnership Agreement (as defined below) of Retail Opportunity Investments Partnership, LP, a Delaware limited partnership (the “Partnership”), is made and entered as of December 10, 2015 by Retail Opportunity Investments GP, LLC, a Delaware limited liability company, which is the sole general partner of the Partnership (the “General Partner”).

WHEREAS, an Amendment to the Certificate of Limited Partnership of the Partnership was filed in the office of the Secretary of State of the State of Delaware on January 5, 2010;

WHEREAS, the General Partner and the limited partners of the Partnership entered into an Agreement of Limited Partnership of the Partnership, dated as of January 5, 2010, pursuant to which the Partnership was formed;

WHEREAS, the General Partner and the limited partners of the Partnership (the “Limited Partners”) entered into the Second Amended and Restated Agreement of Limited Partnership of the Partnership, dated as of September 27, 2013, as amended on December 11, 2014, and as further amended on December 4, 2015 (the “Partnership Agreement”);

WHEREAS, capitalized terms used but not defined herein shall have the meanings ascribed to them in the Partnership Agreement;

WHEREAS, pursuant to the terms and provisions of that certain Contribution Agreement (the “Contribution Agreement”), dated December 1, 2015, by and among Retail Opportunity Investments Corp., a Maryland corporation (the “REIT”), the Partnership and Sternco Center (f/k/a N.E. 20th Street Properties), a Washington General Partnership (“Owner”), the Partnership, or its assignee, intends to purchase the real property and improvements commonly known as the Sternco Shopping Center located at or near 14625 NE 20th Street, Bellevue, King County, Washington (the “Property”) from the Owner;

WHEREAS, in accordance with terms of the Contribution Agreement, Owner shall contribute the Property to the Partnership (the “Contribution”) and, in exchange for the Property, the Partnership has agreed to issue to Owner units of limited partnership interest in the Partnership (“OP Units”), some which will have modified redemption and related rights as described in this Amendment; and

WHEREAS, pursuant to Section 4.03(a) and 7.03(c) of the Partnership Agreement, the General Partner has the power, without the consent of the Limited Partners, to cause the Partnership to issue such OP Units to Owner and to amend the Partnership Agreement to reflect such issuance.

 
 

NOW, THEREFORE, the General Partner desires to effect this Amendment to the Partnership Agreement as provided herein:

1.           

On the date of this Amendment, an aggregate of 2,823,790 additional OP Units are hereby issued to Owner and Exhibit A to the Partnership Agreement is hereby amended and restated as set forth on Schedule A hereto to reflect such issuance. The OP Units being issued to Owner shall carry with them the rights, preferences, and obligations of other OP Units, except that (i) the redemption rights under Section 8.06 of the Partnership Agreement applicable to the 1,946,483 OP Units designated on Schedule A as “SC Redeemable OP Units” shall be modified as specified in paragraph 2 below, and (ii) the redemption rights under Section 8.06 of the Partnership Agreement and the amounts payable upon liquidation of the Partnership as provided in Article XIII of the Partnership Agreement with respect to the 282,379 OP Units designated on Schedule A as “SC Limited Participation OP Units” shall be modified as provided in paragraph 3 below.

In exchange for the Contribution, the Owner shall be deemed to have contributed to the Partnership Property having an aggregate value of $48,851,565.54, or a per OP Unit value of $17.30 (the “Unit Valuation”).

2.            If on or before January 31, 2016, the General Partner receives one or more Notices of Redemption, in the form attached as Exhibit A to this Amendment, pursuant to Section 8.06(a) of the Partnership Agreement relating to OP Units designated on Schedule A as SC Redeemable OP Units (which notice may be delivered prior to January 1, 2016), the General Partner shall, notwithstanding anything to the contrary contained in Section 8.06 of the Partnership Agreement, cause the Partnership to pay cash for such OP Units at a price per redeemed SC Redeemable OP Unit equal to the Unit Valuation no later than five business days from receipt of such notice, but in no event prior to January 4, 2016.
3.           

If the General Partner receives one or more Notices of Redemption, in the form attached as Exhibit A to this Amendment, pursuant to Section 8.06(a) of the Partnership Agreement relating to OP Units designated on Schedule A as SC Limited Participation OP Units, the Value of a REIT Share for purposes of determining the Cash Amount payable upon such redemption shall equal the Value as specified in the Partnership Agreement, except that:

(i) if such Value as so calculated is less than 90% of the Unit Valuation, then the Value of a REIT Share for purposes of determining the Cash Amount payable upon such redemption shall be adjusted to equal to 90% of such Unit Valuation; or

(ii) if such Value as so calculated is greater than 115% of the Unit Valuation, then the Value of a REIT Share for purposes of determining the Cash Amount payable upon such redemption shall be adjusted to equal 115% of such Unit Valuation.

Should the Corporation make an election pursuant to Section 8.06(b) of the Partnership Agreement to redeem any OP Units designated on Schedule A as SC Limited Participation OP Units for REIT Shares, the REIT Shares Amount for purposes of such redemption shall equal the REIT Shares Amount as specified in the Partnership Agreement, except that

(i) if the Value of a REIT Share used for purposes of such redemption is less than 90% of the Unit Valuation, then the number of REIT Shares to be issued upon redemption of each such SC Limited Participation OP Unit the Corporation has elected to redeem for REIT Shares shall be equal to the quotient determined by dividing (x) 90% of the Unit Valuation by (y) the Value of a REIT Share; or

 

 
 

                

(ii) if the Value of a REIT Share used for purposes of such redemption is greater than 115% of the Unit Valuation, then the number of REIT Shares to be issued upon redemption of each such SC Limited Participation OP Unit the Corporation has elected to redeem for REIT Shares shall equal the quotient determined by dividing (x) 115% of the Unit Valuation by (y) the Value of a REIT Share.

In addition, notwithstanding anything to the contrary contained in the Partnership Agreement:

(i) if the amount to be distributed under Article XIII of the Partnership Agreement in respect of each OP Unit designated on Schedule A as an SC Limited Participation OP Unit is less than 90% of the Unit Valuation, then the value of the amount that will be distributed pursuant to Article XIII in respect of each such SC Limited Participation OP Unit shall be adjusted to equal to 90% of the Unit Valuation; or

(ii) if the amount to be distributed under Article XIII of the Partnership Agreement in respect of each OP Unit designated on Schedule A as an SC Limited Participation OP Unit is greater than 115% of the Unit Valuation, then the value of amount that will be distributed pursuant to Article XIII in respect of each such SC Limited Participation OP Unit shall be adjusted to equal to 115% of the Unit Valuation.

The foregoing calculations shall be adjusted in the reasonable discretion of the General Partner to take into account events including but not limited to distributions, splits, subdivisions or other combinations of REIT Shares, in order to prevent dilution or enlargement of the rights of a holder of OP Units issued in connection with the Contribution Agreement.

 

4.            Notwithstanding anything to the contrary contained in the Partnership Agreement or this Amendment, in no event may OP Units issued pursuant to the Contribution Agreement be redeemed for REIT Shares if the issuance of such REIT Shares would require the prior approval of shareholders of the REIT under the rules and regulations of the NASDAQ Stock Market or otherwise, and provided that in such event such OP Units shall be redeemed for cash in accordance with Section 3 of this Amendment for SC Limited Participation OP Units and in accordance with the Partnership Agreement for all other OP Units.
5.            The General Partner agrees not to unreasonably withhold its consent to, and will not require a legal opinion to be delivered in connection with, a Transfer by a constituent member of Owner identified on Exhibit D to the Contribution Agreement (each a “Sternco Holder” and collectively, the “Sternco Holders”) if such Transfer is made to the immediate family members, the estate or to the legal representatives of such Sternco Holder or to trusts formed for such Sternco Holder’s benefit, provided that such transferee is an "accredited investor" as such term is defined in Rule 501 under Regulation D of the Securities Act of 1933, as amended, and certifies as to such status by executing and timely delivering to the Partnership an Accredited Investor Questionnaire in the form attached as Exhibit M to the Contribution Agreement, and provided further that such Transfer is made in connection with bona fide estate planning purposes, or in connection with a Transfer by such Sternco Holder to its estate.
6.            No Amendment.  The provisions Sections 1 through 7 of this Amendment may not be amended without the consent of a majority of the Notice Partners (as such term is defined in the Tax Protection Agreement).

 

 
 

 

7.            Effective Date of Transfer.  The Transfer of the OP Units set forth on Schedule A hereto from Owner to Sternco Holders, and any Transfer by a Sternco Holder of such OP Units in compliance with Section 5 hereof and the Partnership Agreement, as amended, shall be effective as of the effective date of such Transfer.
8.            Partnership Agreement.  Except as set forth herein, the Partnership Agreement shall remain in full force and effect.
9.            Governing Law.  This Amendment shall be governed by, and construed in accordance with, the laws of the State of Delaware.

 

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IN WITNESS WHEREOF, this Third Amendment to the Partnership Agreement has been executed as of the date first written above.

GENERAL PARTNER:

Retail Opportunity Investments GP, LLC,

a Delaware limited liability company,

 

By: Retail Opportunity Investments Corp.,
  a Maryland corporation
  its sole member
   
   
  By: /s/ Michael B. Haines
  Name: Michael B. Haines
  Title:   Chief Financial Officer

 

 

 

 

 [Signature Page to Third Amendment to Partnership Agreement]

 
 

 Exhibit A

NOTICE OF REDEMPTION

To:

Retail Opportunity Investments GP, LLC

8905 Towne Centre Drive, Suite 108,

San Diego, California 92122

   
 Via Email:Michael Haines
  mhaines@roireit.net

 

 

 

Reference is made to the Third Amendment dated December 10, 2015 (the “Amendment”) to the Second Amended and Restated Agreement of Limited Partnership of Retail Opportunity Investments Partnership, LP, dated as of September 27, 2013 (the “Agreement”), and the Redemption rights referred to therein.

The undersigned Limited Partner or Assignee hereby irrevocably tenders for Redemption the following:

_______ OP Units shown on Exhibit A to the Amendment as “SC Redeemable”

_______ OP Units shown on Exhibit A to the Amendment as “SC Limited Participation”

_______ OP Units

The undersigned Limited Partner or Assignee:

(a) undertakes to surrender such OP Units and any certificate therefor at the closing of the Redemption;

(b) directs that the certified check representing the Cash Amount Cash Amount or the REIT Shares Amount, as applicable, deliverable upon the closing of such Redemption be delivered to the address specified below;

(c) represents, warrants, certifies and agrees that:

(i) the undersigned Limited Partner or Assignee is a Qualified Transferee,

(ii) the undersigned Limited Partner or Assignee has, and at the closing of the Redemption will have, good, marketable and unencumbered title to such OP Units, free and clear of the rights or interests of any other person or entity,

(iii) the undersigned Limited Partner or Assignee has, and at the closing of the Redemption will have, the full right, power and authority to tender and surrender such OP Units as provided herein, and

 
 

(iv) the undersigned Limited Partner or Assignee has obtained the consent or approval of all persons and entities, if any, having the right to consent to or approve such tender and surrender; and

(d) acknowledges that he will continue to own such OP Units until and unless, as applicable, either (1) such OP Units are acquired by the General Partner pursuant to Section 8.06(b) of the Agreement or (2) such redemption transaction closes.

 

 

 

 
 

 All capitalized terms used herein and not otherwise defined shall have the same meaning ascribed to them respectively in the Agreement.

Dated: _____________________________

 

Name of Limited Partner or Assignee:

_____________________________________

_____________________________________
(Signature of Limited Partner or Assignee)

_____________________________________
(Street Address)

_____________________________________
_____________________________________
_____________________________________
(City)            (State)             (Zip Code)

 

Issue Wire/REIT Shares to:   _____________________________________
Wire Instructions:   _____________________________________

  _____________________________________

  _____________________________________

  _____________________________________

Name:   _____________________________________
Please insert social security or identifying number:     _____________________________________

 

 

 
 

STATE OF ____________ )

)

COUNTY OF ____________________ )

 

 

On _____________________, 2___, before me, ______________________________, Notary Public, personally appeared ____________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

 

 

I certify under PENALTY OF PERJURY under the laws of the State of ___________________ that the foregoing paragraph is true and correct.

 

 

WITNESS my hand and official seal.

 

 

Signature ______________________________

 

(SEAL)

 

 

 
 

SCHEDULE A

PARTNERS AND PARTNERSHIP UNITS

As of December 10, 2015

Name of Partner Partnership Units (Amount) Type Address
General Partner:
Retail Opportunity Investments GP, LLC 1,069,392 OP Units

8905 Towne Centre Drive, Suite 108,

San Diego, California 92122

Attention: Chief Financial Officer
Facsimile No.: (858) 408-3810

Limited Partners:
Retail Opportunity Investments Corp. 98,067,242 OP Units

8905 Towne Centre Drive, Suite 108,

San Diego, California 92122

Attention: Chief Financial Officer
Facsimile No.: (858) 408-3810

Abby Sher 23,986 OP Units

15935 Alcima Ave.

Pacific Palisades, CA 90272

Ari Blum 14,290 OP Units

68 Madrone Avenue

Larkspur, CA 94939

Blum Family Trust 48,010 OP Units

c/o Rawson, Blum & Co.

505 Sansome Street, Suite 450

San Francisco, CA 94111

Blum Irrev. Trust, The Joseph 4,602 OP Units

c/o Rawson, Blum & Co.

505 Sansome Street, Suite 450

San Francisco, CA 94111

Circe Sher 14,919 OP Units

681 So. Fitch Mountain Road

Healdsburg, CA 95448

Clahan Revocable Trust 46,840 OP Units

c/o Eugene Clahan

16 Meadow Avenue

Kentfield, CA 94904

Justin Sher 14,371 OP Units 268 Bush Street, #3133
San Francisco, CA 94104

 

 

 
 

Name of Partner  Partnership Units (Amount) Type Address
Lacey Sher 11,850 OP Units

10500 NE 8th St, Suite 850

Bellevue, WA 98004

Morgan Blum 14,290 OP Units

3678 23rd Street

San Francisco, CA 94110

Nigel Sher 10,889 OP Units

10500 NE 8th St, Suite 850

Bellevue, WA 98004

Rachel Sher 8,295 OP Units

10500 NE 8th St, Suite 850

Bellevue, WA 98004

Rawson, Blum & Co. 732 OP Units

c/o Rawson, Blum & Co.

505 Sansome Street, Suite 450

San Francisco, CA 94111

Rawson, Living Trust 79,562 OP Units

c/o David Rawson

2744 Green Street

San Francisco, CA 94123

Rebecca Wellington 10,889 OP Units

2729 51st Avenue SW

Seattle, WA 98116

SARM Enterprises 566,499 OP Units

10500 NE 8th St, Suite 850

Bellevue, WA 98004

Sher GP, Inc. 4,196 OP Units

c/o Ronald Sher

10500 NE 8th St., Suite 850

Bellevue, WA 98004

Sher, Merritt & Pamela Living Trust 128,632 OP Units

c/o Sher Partners

10500 NE 8th St., Suite 850

Bellevue, WA 98004

Sher, Ronald 143,160 OP Units

10500 NE 8th St., Suite 850

Bellevue, WA 98004

TCA Holdings LLC 1,581,813 OP Units

10500 NE 8th St., Suite 850

Bellevue, WA 98004

Terranomics 2,209 OP Units

c/o Sher Partners

10500 NE 8th St., Suite 850

Bellevue, WA 98004

Thomas Bomar 24,236 OP Units

71 Reed Ranch Road

Tiburon, CA 94920

W&P Stewart Trust dated 9/13/11 2,813 OP Units

27482 Willowbank Road

Davis, CA 95618

WS Harrison, LLC 989,272 OP Units

33855 Van Duyn Road

Eugene, Oregon 97408

 

 
 

 

Name of Partner Partnership Units (Amount) Type Address
Donald F. Gaube 377,788 OP Units

287 Cross Road

Alamo, CA 94507

Frank K. Boscow and Sue C. Boscow Revocable Trust U/A dated December 12, 1996 113,657 OP Units

287 Cross Road

Alamo, CA 94507

2015 JSG Separate Property Trust dated as of November 24, 2015 20,254 OP Units

287 Cross Road

Alamo, CA 94507

Thomas Boscow 20,254 OP Units

3411 Gold Nugget Way

Placerville, CA 95667

LaFrance Family Trust dated January 6, 1993 150,503 OP Units

500 Fairview Blvd.

Incline Village, NV 89451

Deborah DeDomenico 32,210 OP Units

13424 Chalk Hill Road

Healdsburg, CA 95448

Dennis T. DeDomenico 32,210 OP Units

650 Alvarado Road

Berkeley, CA 94705

Claudia DeDomenico 32,210 OP Units

82 Beach St.

Belvedere, CA 94920

Lois M. DeDomenico QTIP Trust dated April 28, 1988 32,210 OP Units

2 Requa Place

Piedmont, CA 94611

Donna Holpainen 32,210 OP Units

4727 W. Roberts Way

Seattle, WA 98199

CDD&D Management, LLC 1,627 OP Units

650 Alvarado Road

Berkeley, CA 94705

Cesped 1992 Family Trust dated February 26, 1992 65,065 OP Units

970 Wedge Court

Incline Village, NV 89451

David E. Cesped 16,271 OP Units

13148 Freemanville Rd

Milton, GA 30004

Vidano 2005 Family Trust 16,271 OP Units

784 Cordilleras Ave

San Carlos, CA 94070

Holpainen Holdings, LLC 32,533 OP Units

4727 W. Roberts Way

Seattle, WA 98199

Sean Rhatigan & Ellen Rhatigan 16,267 OP Units

1347 Court St.

Alameda, CA 94501

Engstrom Family Trust dated May 21, 2004 32,556 OP Units

837 Jefferson Blvd.

West Sacramento, CA 95691

Jim and Marsha Engstrom Family Revocable Trust Established May 1,2006 40,685 OP Units

837 Jefferson Blvd.

West Sacramento, CA 95691

 

 
 

 

Name of Partner Partnership Units (Amount)   Type Address
Eric A. Engstrom and Sheila Engstrom 40,685 OP Units

837 Jefferson Blvd.

West Sacramento, CA 95691

Matthew K. Engstrom and Jennifer Engstrom 8,141 OP Units

837 Jefferson Blvd.

West Sacramento, CA 95691

Richard A. Bruzzone 118,787 OP Units

892 Broadmoor Court

Lafayette, CA 94549

ACSW, LLC 705,947 (SC Redeemable) OP Units

4437 Lake Washington Blvd. NE # 101

Kirkland, WA 98033

Ellen Burt LLC 705,947 (SC Redeemable) OP Units

3864 W. Mercer Way,

Mercer Island, WA 98040

Jay Sternoff

70,595 (SC Redeemable)

94,126 (SC Limited Participation)

305,911

 OP Units

22440 NE Union Hill Road

Redmond, WA 98053

Nancy Sternoff

282,379 (SC Redeemable)

188,253 (SC Limited Participation)

 OP Units

1 Grand Army Plaza #11a

Brooklyn, NY 11238

Richard Sternoff

181,615 (SC Redeemable)

289,017

 OP Units

5320 Lansdowne Lane

Mercer Island, WA 98040

TOTALS 106,939,173 OP Units