EXHIBIT 4.1
▇▇▇▇▇▇▇ OPERATING LIMITED PARTNERSHIP
AMENDMENT TO SECOND RESTATED AGREEMENT OF LIMITED PARTNERSHIP RELATING TO
8.875% SERIES B CUMULATIVE REDEEMABLE PERPETUAL PREFERRED UNITS
This Amendment to Second Restated Agreement of Limited Partnership of
▇▇▇▇▇▇▇ Operating Limited Partnership, a Delaware limited partnership (the
"PARTNERSHIP"), dated February 23, 1999 (this "AMENDMENT") amends the Second
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Restated Agreement of Limited Partnership of the Partnership, dated September 2,
1997, as amended (the "PARTNERSHIP AGREEMENT"), by and among ▇▇▇▇▇▇▇ Real
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Estate, Inc. (the "GENERAL PARTNER") and each of the limited partners executing
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a signature page hereto (the "CONTRIBUTORS"). Capitalized terms used herein and
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not defined herein have the meanings ascribed thereto in the Partnership
Agreement. Section references are (unless otherwise specified) references to
sections in this Amendment.
WHEREAS, pursuant to Section 3.1.C of the Partnership Agreement, the
General Partner desires to cause the Partnership to issue additional Units of a
new class and series, with the designations, preferences and relative,
participating, optional or other special rights, powers and duties set forth
herein;
WHEREAS, pursuant to Section 17.1 of the Partnership Agreement, the
General Partner, without the consent of the Limited Partners, may amend the
Partnership Agreement by executing a written instrument setting forth the terms
of such amendment; and
WHEREAS, the General Partner desires by this Amendment to so amend the
Partnership Agreement as of the date first set forth above to provide for the
designation and issuance of such new class and series of Units.
NOW, THEREFORE, the Partnership Agreement is hereby amended by
establishing and fixing the rights, limitations and preferences of a new class
and series of Units as follows:
SECTION 1. DEFINITIONS. For purposes of this Amendment, (i) the term
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"PARITY PREFERRED UNITS" shall be used to refer to any class or series of
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Partnership Interests of the Partnership now or hereafter authorized, issued or
outstanding expressly designated by the Partnership to rank on a parity with
Series B Preferred Units (as hereinafter defined) with respect to distributions
and rights upon voluntary or involuntary liquidation, winding-up or dissolution
of the Partnership and shall include, without limitation, the Series A Preferred
Units (as defined in that certain Amendment to Second Restated Agreement of
Limited Partnership, dated August 6, 1998 (the "SERIES A PREFERRED AMENDMENT"),
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(ii) the term "PRIORITY RETURN" shall mean, an amount equal to 8.875% per annum,
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determined on the basis of a 360 day year of twelve 30 day months (or actual
days for any month which is shorter than a full monthly period), cumulative to
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the extent not distributed for any given distribution period pursuant to Section
8.4 of the Partnership Agreement, of the stated value of $25.00 per Series B
Preferred Unit, commencing on the date of issuance of such Series B Preferred
Unit, (iii) the term "SUBSIDIARY" shall mean with respect to any person, any
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corporation, partnership, limited liability company, joint venture or other
entity of which a majority of (x) voting power of the voting equity securities
or (y) the outstanding equity interests, is owned, directly or indirectly, by
such person, (iv) the term "PTP" shall mean a "publicly traded partnership"
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within the meaning of Section 7704 of the Code, (v) the term "AFFILIATE" shall
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mean, as to any Person, any Entity which, directly or indirectly through one or
more intermediaries, controls, is controlled by or is under common control with
such Person, and (vi) "Contribution Agreements" mean those certain Contribution
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Agreements, dated February 23, 1999, by and among the General Partner and the
Partnership and respectively, Belcrest Realty Corporation and Belair Real Estate
Corporation.
SECTION 2. DESIGNATION AND NUMBER. Pursuant to Section 3.1.C of the
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Partnership Agreement, a series of Units of Partnership Interests in the
Partnership designated as the "8.875% Series B Cumulative Redeemable Perpetual
Series B Preferred Units" (the "SERIES B PREFERRED UNITS") is hereby
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established. The number of Series B Preferred Units shall be 2,000,000.
SECTION 3. DISTRIBUTIONS. (a) Payment of Distributions. Subject
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to the rights of holders of Parity Preferred Units as to the payment of
distributions, pursuant to Section 8.4 of the Partnership Agreement, holders of
Series B Preferred Units shall be entitled to receive, when, as and if declared
by the Partnership acting through the General Partner, out of Operating Cash
Flow and Capital Cash Flow, cumulative preferential cash distributions at the
rate per annum of 8.875% of the original Capital Contribution per Series B
Preferred Unit. Such distributions shall be cumulative, shall accrue from the
original date of issuance and will be payable (i) quarterly in arrears, on the
last day (or, if not a Business Day (as hereinafter defined), the next
succeeding Business Day of each of March, June, September and December of each
year commencing on March 31, 1999 and, (ii) in the event of (A) an exchange of
Series B Preferred Units into Series B Preferred Stock (as hereinafter defined),
or (B) a redemption of Series B Preferred Units, on the exchange date or
redemption date, as applicable (each a "SERIES B PREFERRED UNIT DISTRIBUTION
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PAYMENT DATE"). The amount of the distribution payable for any period will be
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computed on the basis of a 360-day year of twelve 30-day months and for any
period shorter than a full quarterly period for which distributions are
computed, the amount of the distribution payable will be computed on the basis
of the actual number of days elapsed in such a 30-day month. If any date on
which distributions are to be made on the Series B Preferred Units is not a
Business Day, then payment of the distribution to be made on such date will be
made on the next succeeding day that is a Business Day (and without any interest
or other payment in respect of any such delay) except that, if such Business Day
is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date. Distributions on the Series B Preferred Units will be
made to the holders of record of the Series B Preferred Units on the
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relevant record dates to be fixed by the Partnership acting through the General
Partner, which record dates shall be the same day as the record date for any
distribution payable on Junior Units (as hereinafter defined), with respect to
the same period, or, if no such distribution is payable in respect of the Junior
Units, the 20/th/ day of the calendar month in which the applicable distribution
falls or on such earlier date designated on at least 10 days' notice by the
Board of Directors of the General Partner as the record date for such
distribution that is not more than 30 nor less than 10 days prior to such Series
B Preferred Unit Distribution Payment Date (the "SERIES B PREFERRED UNIT
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PARTNERSHIP RECORD DATE").
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The term "BUSINESS DAY" shall mean each day, other than a Saturday or a
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Sunday, which is not a day on which banking institutions in New York, New York
are authorized or required by law, regulation or executive order to close.
(b) Prohibition on Distribution. No distributions on Series B Preferred
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Units shall be authorized by the General Partner or paid or set apart for
payment by the Partnership at any such time as the terms and provisions of any
agreement of the Partnership or the General Partner, including any agreement
relating to their indebtedness, prohibits such authorization, payment or setting
apart for payment or provides that such authorization, payment or setting apart
for payment or provides that such authorization, payment or setting apart for
payment would constitute a breach thereof or a default thereunder, or to the
extent that such authorization or payment shall be restricted or prohibited by
law.
(c) Distributions Cumulative. Distributions on the Series B Preferred
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Units will accrue whether or not the terms and provisions of any agreement of
the Partnership, including any agreement relating to its indebtedness at any
time prohibit the current payment of distributions, whether or not the
Partnership has earnings, whether or not there are funds legally available for
the payment of such of such distributions and whether or not such distributions
are authorized. Accrued but unpaid distributions on the Series B Preferred Units
will accumulate as of the Series B Preferred Unit Distribution Payment Date on
which they first become payable. Distributions on account of arrears for any
past distribution periods may be declared and paid at any time, without
reference to a regular Series B Preferred Unit Distribution Payment Date to
holders of record of the Series B Preferred Units on the record date fixed by
the Partnership acting through the General Partner which date shall not exceed
thirty (30) days prior to the payment date. Accumulated and unpaid distributions
will not bear interest.
(d) Priority as to Distributions. (i) So long as any Series B Preferred
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Units are outstanding, no distribution of cash or other property shall be
authorized, declared, paid or set apart for payment on or with respect to any
class or series of Partnership Interest ranking junior as to the payment of
distributions or rights upon a voluntary or involuntary liquidation, dissolution
or winding-up of the Partnership to the Series B Preferred Units (collectively,
"JUNIOR UNITS"), nor shall any cash or other property be set aside for or
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applied to the purchase, redemption or other acquisition for consideration of
any Series B Preferred Units, any Parity
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Preferred Units or any Junior Units, unless, in each case, all distributions
accumulated on all Series B Preferred Units and all classes and series of
outstanding Parity Preferred Units have been paid in full. The foregoing
sentence will not prohibit (a) distributions payable solely in Junior Units, (b)
the conversion of Junior Units or Parity Preferred Units into Partnership
Interests ranking junior to the Series B Preferred Units, or (c) the redemption
of Partnership Interests corresponding to any Series B Preferred Stock, Parity
Preferred Stock or Junior Stock to be purchased by the General Partner pursuant
to Article IX of the Charter) to preserve the General Partner's status as a real
estate investment trust, provided that such redemption shall be upon the same
terms as the corresponding purchase pursuant to Article IX of the Charter.
(ii) So long as distributions have not been paid in full (or a sum
sufficient for such full payment is not irrevocably deposited in trust for
payment) upon the Series B Preferred Units, all distributions authorized and
declared on the Series B Preferred Units and all classes or series of
outstanding Parity Preferred Units shall be authorized and declared so that the
amount of distributions authorized and declared per Series B Preferred Unit and
such other classes or series of Parity Preferred Units shall in all cases bear
to each other the same ratio that accrued distributions per Series B Preferred
Unit and such other classes or series of Parity Preferred Units (which shall not
include any accumulation in respect of unpaid distributions for prior
distribution periods if such class or series of Parity Preferred Units do not
have cumulative distribution rights) bear to each other. Any distribution
payment made on the Series B Preferred Units shall first be credited against the
earliest accrued but unpaid distribution due with respect to such Series B
Preferred Units which remains payable.
(e) No Further Rights. Holders of Series B Preferred Units shall not be
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entitled to any distributions, whether payable in cash, other property or
otherwise, in excess of the full cumulative distributions described herein.
SECTION 4. ALLOCATIONS. Section 7.1 of the Partnership Agreement is
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hereby amended as follows:
To the extent permitted under Section 704(b) of the Code, solely for
the purposes of allocating Profits or Losses in any taxable year (or a portion
thereof) to the holders of Series B Preferred Units pursuant to Section 7 of the
Partnership Agreement, items of Profits or Losses, as the case may be, shall not
include Depreciation with respect to properties that are "ceiling limited" in
respect of holders of Series B Preferred Units. For purposes of the preceding
sentence, Partnership property shall be considered "ceiling limited" in respect
of a holder of Series B Preferred Units if Depreciation attributable to such
Partnership property which would otherwise be allocable to such holder, without
regard to this paragraph, exceeded depreciation determined for federal income
tax purposes attributable to such Partnership property which would otherwise be
allocable to such holder by more than 5%.
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SECTION 5. LIQUIDATION PROCEEDS. (a) Subject to the rights of holders
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of Parity Preferred Units with respect to rights upon any voluntary or
involuntary liquidation, dissolution or winding-up of the Partnership and
subject to preferred Partnership Interests ranking senior to the Series B
Preferred Units with respect to rights upon any voluntary or involuntary
liquidation, dissolution or winding-up of the Partnership, the holders of Series
B Preferred Units shall be entitled to receive out of the assets of the
Partnership legally available for distribution or the proceeds thereof, after
payment or provision for debts and other liabilities of the Partnership, but
before any payment or distributions of the assets shall be made to holders of
Junior Units, an amount equal to the sum of (i) a liquidation preference in an
amount equal to the positive Capital Account balance of the holder of the Series
B Preferred Units and (ii) to the extent properly allocable under Article 7 of
the Partnership Agreement and not previously allocated to the Capital Account
balance of the holders of the Series B Preferred Units, an amount equal to any
accumulated and unpaid distributions thereon, whether or not declared, to the
date of payment. In the event of any conflict between the provisions of this
Section 5 and Section 15.2 of the Partnership Agreement, the provisions of this
Section 5 shall control.
(b) Notice. Written notice of any such voluntary or involuntary
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liquidation, dissolution or winding-up of the Partnership, stating the payment
date or dates when, and the place or places where, the amounts distributable in
such circumstances shall be payable, shall be given by (i) fax and (ii) by first
class mail, postage pre-paid, not less than thirty (30) and not more than sixty
(60) days prior to the payment date stated therein, to each record holder of the
Series B Preferred Units at the respective addresses of such holders as the same
shall appear on the transfer records of the Partnership.
(c) No Further Rights. After payment of the full amount of the liquidating
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distributions to which they are entitled, the holders of Series B Preferred
Units will have no right or claim to any of the remaining assets of the
Partnership (it being understood that such holder may have additional rights or
claims to the remaining assets of the Partnership as a result of its ownership
of Units of other classes or series or its status as General Partner).
(d) Consolidation, Merger or Certain Other Transactions. The voluntary
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sale, conveyance, lease, exchange or transfer (for cash, shares of stock,
securities or other consideration) of all or substantially all of the property
or assets of the General Partner or the Partnership to, or the consolidation or
merger or other business combination of the Partnership or the General Partner
with or into, any corporation, trust or other entity (or of any corporation,
trust or other entity with or into the Partnership) or a statutory share
exchange of the General Partner shall not be deemed to constitute a liquidation,
dissolution or winding-up of the Partnership.
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SECTION 6. OPTIONAL REDEMPTION. (a) Right of Optional Redemption.
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The Series B Preferred Units may not be redeemed prior to the fifth (5/th/)
anniversary of the issuance date. On or after such date, the Partnership shall
have the right to redeem the Series B Preferred Units, in whole or in part, at
any time or from time to time, upon not less than 30 nor more than 60 days'
written notice, at a redemption price (the "SERIES B REDEMPTION PRICE"), payable
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in cash (or such number of Series B Preferred Shares to which the holders of the
Series B Preferred Units would be entitled upon an exchange of the Series B
Preferred Units in accordance with Section 9 of this Amendment to the extent all
such redeemed Series B Preferred Units would be exchangeable for Series B
Preferred Shares pursuant to Section 9 of this Amendment), equal to the Capital
Account balance of the holder of Series B Preferred Units; provided, however,
that no redemption pursuant to this SECTION 6 will be permitted if the
Redemption Price does not equal or exceed the original Capital Contribution of
such holder plus the cumulative Priority Return, whether or not declared, to the
redemption date to the extent not previously distributed. If fewer than all of
the outstanding Series B Preferred Units are to be redeemed, the Series B
Preferred Units to be redeemed shall be selected pro rata (as nearly as
practicable without creating fractional Units).
(b) Limitation on Redemption. (i) The Redemption Price of the Series B
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Preferred Units (other than the portion thereof consisting of accumulated but
unpaid distributions) will be payable solely out of the sale proceeds of capital
stock of the General Partner, which will be contributed by the General Partner
to the Partnership as additional capital contribution, or out of the sale of
limited partner interests in the Partnership and from no other source. For
purposes of the preceding sentence, "capital stock" means any equity securities
(including Common Stock and Preferred Stock (as such terms are defined in the
Charter)), shares, depository receipts, participation or other ownership
interests (however designated) and any rights (other than debt securities
convertible into or exchangeable for equity securities) or options to purchase
any of the foregoing.
(ii) The Partnership may not redeem fewer than all of the outstanding
Series B Preferred Units unless all accumulated and unpaid distributions have
been paid on all Series B Preferred Units for all quarterly distribution periods
terminating on or prior to the date of redemption.
(c) Procedures for Redemption. (i) Notice of redemption will be (A) faxed,
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and (B) mailed by the Partnership, by certified mail, postage prepaid, not less
than 30 nor more than 60 days prior to the redemption date, addressed to the
respective holders of record of the Series B Preferred Units at their respective
addresses as they appear on the records of the Partnership. No failure to give
or defect in such notice shall affect the validity of the proceedings for the
redemption of any Series B Preferred Units except as to the holder to whom such
notice was defective or not given. In addition to any information required by
law, each such notice shall state: (m) the redemption date, (n) the Redemption
Price, (o) the aggregate number of Series B
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Preferred Units to be redeemed and if fewer than all of the outstanding Series B
Preferred Units are to be redeemed, the number of Series B Preferred Units to be
redeemed held by such holder, which number shall equal such holder's pro rata
share (based on the percentage of the aggregate number of outstanding Series B
Preferred Units the total number of Series B Preferred Units held by such holder
represents) of the aggregate number of Series B Preferred Units to be redeemed,
(p) the place or places where such Series B Preferred Units are to be
surrendered for payment of the Redemption Price, (q) that distributions on the
Series B Preferred Units to be redeemed will cease to accumulate on such
redemption date and (r) that payment of the Redemption Price will be made upon
presentation and surrender of such Series B Preferred Units.
(ii) If the Partnership gives a notice of redemption in respect of
Series B Preferred Units (which notice will be irrevocable) then, by 12:00 noon,
New York City time, on the redemption date, the Partnership will deposit
irrevocably in trust for the benefit of the Series B Preferred Units being
redeemed funds sufficient to pay the applicable Redemption Price and will give
irrevocable instructions and authority to pay such Redemption Price to the
holders of the Series B Preferred Units upon surrender of the Series B Preferred
Units by such holders at the place designated in the notice of redemption. If
the Series B Preferred Units are evidenced by a certificate and if fewer than
all Series B Preferred Units evidenced by any certificate are being redeemed, a
new certificate shall be issued upon surrender of the certificate evidencing all
Series B Preferred Units, evidencing the unredeemed Series B Preferred Units
without cost to the holder thereof. On and after the date of redemption,
distributions will cease to accumulate on the Series B Preferred Units or
portions thereof called for redemption, unless the Partnership defaults in the
payment thereof. If any date fixed for redemption of Series B Preferred Units
is not a Business Day, then payment of the Redemption Price payable on such date
will be made on the next succeeding day that is a Business Bay (and without any
interest or other payment in respect of any such delay) except that, if such
Business Day falls in the next calendar year, such payment will be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date fixed for redemption. If payment of the Redemption Price
is improperly withheld or refused and not paid by the Partnership, distributions
on such Series B Preferred Units will continue to accumulate from the original
redemption date to the date of payment, in which case the actual payment date
will be considered the date fixed for redemption for purposes of calculating the
applicable Redemption Price.
SECTION 7. VOTING RIGHTS. (a) General. Holders of the Series B
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Preferred Units will not have any voting rights or right to consent to any
matter requiring the consent or approval of the Limited Partners, except as set
forth in Section 17 of the Partnership Agreement and in this Section 7.
(b) Certain Voting Rights. So long as any Series B Preferred Units remain
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outstanding, the Partnership shall not, without the affirmative vote of the
holders of at least two-thirds of the Series B Preferred Units outstanding at
the time: (i) authorize or create, or increase the authorized or issued amount
of, any class or series of Partnership Interests ranking prior to
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the Series B Preferred Units with respect to payment of distributions or rights
upon liquidation, dissolution or winding-up or reclassify any Partnership
Interests into any such Partnership Interest, or create, authorize or issue any
obligations or security convertible into or evidencing the right to purchase any
such Partnership Interests; (ii) authorize or create, or increase the authorized
or issued amount of any Parity Preferred Units or reclassify any Partnership
Interest into any such Partnership Interest or create, authorize or issue any
obligations or security convertible into or evidencing the right to purchase any
such Partnership Interests but only to the extent such Parity Preferred Units
are issued to an Affiliate of the Partnership (unless issued to the General
Partner insofar as the issuance of such interests is in connection with the
issuance by the General Partner of corresponding preferred stock either (1) to
persons who are not Affiliates of the Partnership, or (2) to persons who are
Affiliates of the Partnership upon terms no more favorable to such Affiliates
than those it would offer in an arm's length transaction to an unrelated party);
or (iii) either (A) consolidate, merge into or with, or convey, transfer or
lease its assets substantially as an entirety to, any corporation or other
entity or (B) amend, alter or repeal the provisions of the Partnership Agreement
(including, without limitation, the first paragraph of Section 3.1(F) thereof),
whether by merger, consolidation or otherwise, in each case in a transaction or
manner that would materially and adversely affect the powers, special rights,
preferences, privileges or voting power of the Series B Preferred Units or the
holders thereof; provided, however, that with respect to the occurrence of a
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merger, consolidation or a sale or lease of all of the Partnership's assets as
an entirety, so long as (l) the Partnership is the surviving entity and the
Series B Preferred Units remain outstanding with the terms thereof unchanged, or
(2) the resulting, surviving or transferee entity is a partnership, limited
liability company or other pass-through entity organized under the laws of any
state and substitutes the Series B Preferred Units for other interests in such
entity having substantially the same terms and rights as the Series B Preferred
Units, including with respect to distributions, voting rights and rights upon
liquidation, dissolution or winding-up, then the occurrence of any such event
shall not be deemed to materially and adversely affect such rights, privileges
or voting powers of the holders of the Series B Preferred Units; and provided
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further that any increase in the amount of Partnership Interests or the creation
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or issuance of any other class or series of Partnership Interests or obligation
or security convertible into or evidencing the right to purchase any such
Partnership Interests, in each case ranking (y) junior to the Series B Preferred
Units with respect to payment of distributions or the distribution of assets
upon liquidation, dissolution or winding-up, or (z) on a parity to the Series B
Preferred Units with respect to payment of distributions or the distribution of
assets upon liquidation, dissolution or winding-up to the extent such
Partnership Interests are not issued to an Affiliate of the Partnership, (unless
issued to the General Partner to the extent the issuance of such interests is in
connection with the issuance by the General Partner of corresponding preferred
stock either (1) to persons who are not Affiliates of the Partnership or (2)
persons who are Affiliates of the Partnership upon terms no more favorable to
such Affiliates than those it would offer in an arm's length transaction to an
unrelated party), shall not be deemed to materially and adversely affect such
rights, preferences, privileges or voting powers of the Series B Preferred
Units. In the event of any conflict between the provisions of Section 17 of
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the Partnership Agreement and the provisions of this Section 7, the provisions
of this Section 7 shall control.
SECTION 8. TRANSFER RESTRICTIONS. The Series B Preferred Units shall
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be subject to all of the provisions of Article 12 of the Partnership Agreement.
Article 12 is hereby amended as follows:
(i) the references in 12.2.C(v) to "the Financing Partnership (or
any other entity taxed as a partnership for federal income tax purposes)" shall
be deemed to be references to "any subsidiary of the Partnership taxed as a
partnership for federal income tax purposes"); and
(ii) A new Section 12.2(D) shall be added at the end of Section 12.2
as follows:
"Notwithstanding anything to the contrary in Section 12.2(A) or
Section 12.2(B) hereof, provided that a Transfer, and, if applicable, a
Transferee, of all or any portion of the Series B Preferred Units (A) does not
violate the provisions of Section 12.2(C) hereof, (B) effects a Transfer to an
entity that is an accredited investor within the meaning of Regulation D under
the Securities Act, (C) for so long as the Partnership shall satisfy the private
placement safe harbor of Treasury Regulation Section 1.7704-1(h) (taking into
account any person treated as a partner under Treasury Regulation Section
1.7704-1(h) (3)), does not cause the total number of such persons holding Series
B Preferred Units to exceed five (5) and (D) with respect to such Transfer, the
Transferor and Transferee, as applicable, represent to the General Partner in an
ownership certificate (the "OWNERSHIP CERTIFICATE") in such form as is
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reasonably acceptable to the General Partner
(i) for so long as the Partnership is complying with the safe
harbor of Notice 88-75 (1988-2 C.B. 386) the maximum number of Look-Through
Partners (as hereinafter defined) in the Transferee;
(ii) that such Transferee would not cause the General Partner to
fail to satisfy the requirements of Section 856(a)(6) and 856(h) of the Code if
(A) all Series B Preferred Units, including those to be Transferred to such
Transferee, were exchanged for Series B Preferred Stock (as defined below), (B)
there were no outstanding stock of any other class of the General Partner and
(C) such determination was made during the last half of the General Partner's
taxable year;
(iii) for so long as the Partnership is complying with the safe
harbor of Notice 88-75 (1988-2 C.B. 386), such purported Transferee's
undertaking not to allow the number of Look-Through Partners certified in clause
(i) to increase without the General Partner's prior written consent;
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(iv) such purported Transferee's undertaking not to permit the fact
stated in clause (ii) to become untrue; and
(v) such purported Transferee's undertaking to become a Substituted
Limited Partner and to be bound by the terms of the Partnership Agreement,
the General Partner shall not withhold its consent to such Transfer to such
Transferee and, after receiving such consent, (i) such Transferee shall be
considered a substituted Limited Partner upon receipt by the General Partner of
a written agreement of the Transferee to become a Substituted Limited Partner
and to be bound by the terms of the Partnership Agreement; (ii) the Partnership
and the General Partner shall treat such Transferee as the absolute owner of the
interest transferred in all respects; and (iii) the General Partner shall not
have the right to require any such transferor to have such transferor's
transferred Partnership Interest redeemed; provided, however, that
notwithstanding the foregoing the General Partner may withhold such consent if
either (x) any purported Transferee shall fail to deliver the Ownership
Certificate or (y) at such time the Partnership is relying on the safe harbor of
Notice 88-75 (1988-2 C.B. 386) and the sum of the total number of partners on a
look-through basis, determined pursuant to Notice 88-75 (1988-2 C.B. 386)
("LOOK-THROUGH PARTNERS"), of a purported Transferee plus the total number of
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Look-Through Partners of all other holders of Series B Preferred Units would as
of the date of such Transfer exceed 200.
SECTION 9. EXCHANGE RIGHTS. (a) Right to Exchange. (i) Series B
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Preferred Units will be exchangeable, subject to Section 9(a)(v), (A) in whole
or in part at any time on or after the tenth (10/th/) anniversary of the date of
issuance, at the option of the holders thereof, for authorized but previously
unissued shares of 8.875% Series B Cumulative Redeemable Preferred Stock of the
General Partner (the "SERIES B PREFERRED STOCK") at an exchange rate of one
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share of Series B Preferred Stock for one Series B Preferred Unit, subject to
adjustment as described below (the "SERIES B EXCHANGE PRICE"); (B) at any time,
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in whole or in part, at the option of the holders of Series B Preferred Units
for Series A Preferred Stock if (y) at any time full distributions shall not
have been timely made on any Series B Preferred Unit with respect to six (6)
prior quarterly distribution periods, whether or not consecutive, provided,
however, that a distribution in respect of Series B Preferred Units shall be
considered timely made if made within two (2) Business Days after the applicable
Series B Preferred Unit Distribution Payment Date if at the time of such late
payment there shall not be any prior quarterly distribution periods in respect
of which full distributions were not timely made or (z) upon receipt by a holder
or holders of Series B Preferred Units of (1) notice from the General Partner
that the General Partner has taken the position that the Partnership is, or upon
the occurrence of a defined event in the immediate future will be, a PTP and (2)
an opinion rendered by an outside nationally recognized independent counsel
familiar with such matters addressed to a holder or holders of Series B
Preferred Units, that the Partnership is or likely is, or upon the occurrence of
a defined event in the immediate future will be or likely will be, a PTP; (C) in
whole or in part, at the option any holder prior to the tenth (10/th/)
anniversary of the issuance date and after the third
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anniversary thereof if such holder of Series B Preferred Units shall deliver to
the General Partner either (i) a private ruling letter addressed to such holder
of Series B Preferred Units or (ii) an opinion of independent counsel reasonably
acceptable to the General Partner based on the enactment of temporary or final
Treasury Regulations or the publication of a Revenue Ruling, in either case to
the effect that an exchange of the Series B Preferred Units at such earlier time
would not cause the Series B Preferred Units to be considered "stock and
securities" within the meaning of section 351(e) of the Internal Revenue Code of
1986, as amended (the "CODE") for purposes of determining whether the holder of
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such Series B Preferred Units is an "investment company" under section 721(b) of
the Code if an exchange is permitted at such earlier date; and (D) in whole but
not in part (regardless of whether held by Contributors) for Series B Preferred
Stock (but only if the exchange in whole may be accomplished consistently with
the ownership limitations set forth under the Article IX of the Charter of the
General Partner as supplemented by Section 5(e) of the Articles Supplementary of
the General Partner setting forth the terms of the Series B Preferred Stock (the
"SERIES B ARTICLES"), taking into account exceptions thereto and the provisions
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of Section 9(a)(v) below) if at any time, (i) the Partnership reasonably
determines that the assets and income of the Partnership for a taxable year
after 1999 would not satisfy the income and assets tests of Section 856 of the
Code for such taxable year if the Partnership were a real estate investment
trust within the meaning of the Code or (ii) any holder of Series B Preferred
Units shall deliver to the Partnership and the Company an opinion of independent
counsel based upon information referred to in paragraph 4(f)(iii) of the
Contribution Agreements or information contained in the Company publicly filed
documents and which is acceptable to the Company in its reasonable discretion to
the effect that, based on the assets and income of the Partnership for a taxable
year after 1999, the Partnership would not satisfy the income and assets tests
of Section 856 of the Code for such taxable year if the Partnership were a real
estate investment trust within the meaning of the Code and that such failure
would create a meaningful risk that a holder of the Series B Preferred Units
would fail to maintain qualification as a real estate investment trust.
(ii) Notwithstanding anything to the contrary set forth in SECTION
9(A)(I), if an Exchange Notice (as hereinafter defined) has been delivered to
the General Partner, then the General Partner may, at its option, elect to
redeem or cause the Partnership to redeem all or a portion of the outstanding
Series B Preferred Units for cash in an amount equal to the original Capital
Contribution per Series B Preferred Unit and all accrued and unpaid
distributions thereon to the date of redemption. The General Partner may
exercise its option to redeem the Series B Preferred Units for cash pursuant to
this SECTION 9(A)(II) by giving each holder of record of Series B Preferred
Units notice of its election to redeem for cash, within ten (10) Business Days
after receipt of the Exchange Notice, by (m) fax, and (n) registered mail,
postage paid, at the address of each holder as it may appear on the records of
the Partnership stating (A) the redemption date, which shall be no later than
sixty (60) days following the receipt of the Exchange Notice, (B) the redemption
price, (C) the place or places where the Series B Preferred Units are to be
surrendered for payment of the redemption price, (D) that distributions on the
Series B Preferred Units will cease to accrue on such redemption date; (E) that
payment of the redemption price will
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be made upon presentation and surrender of the Series B Preferred Units and (F)
the aggregate number of Series B Preferred Units to be redeemed, and if fewer
than all of the outstanding Series B Preferred Units are to be redeemed, the
number of Series B Preferred Units to be redeemed held by such holder, which
number shall equal such holder's pro-rata share (based on the percentage of the
aggregate number of outstanding Series B Preferred Units the total number of
Series B Preferred Units held by such holder represents) of the aggregate number
of Series B Preferred Units being redeemed.
(iii) In the event an exchange of all or a portion of Series B
Preferred Units pursuant to SECTION 9(A)(I) would violate the provisions on
ownership limitation of the General Partner set forth in Article IX of the
Charter of the General Partner as supplemented by Section 5(e) of the Series B
Articles with respect to the Series B Preferred Stock, the General Partner shall
give written notice thereof to each holder of record of Series B Preferred
Units, within ten (10) Business Days following receipt of the Exchange Notice,
by (m) fax, and (n) registered mail, postage prepaid, at the address of each
such holder set forth in the records of the Partnership. In such event, each
holder of Series B Preferred Units shall be entitled to exchange, pursuant to
the provision of SECTION 9(B) a number of Series B Preferred Units which would
comply with the provisions on the ownership limitation of the General Partner
set forth in such Article IX of the Charter of the General Partner as
supplemented by Section 5(e) of the Series B Articles (taking into account any
waiver granted pursuant to the provisions of subsection (v) below) and any
Series B Preferred Units not so exchanged (the "EXCESS UNITS") shall, if the
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same are not the result of an exchange permitted solely by virtue of the
exchange rights set forth in Sections 9(a)(i)(A), 9(a)(i)(B)(z) (but only to the
extent the Partnership has become a PTP and there has been a breach by the
holders of the Series B Preferred Units of their obligations under Section 8 of
this Amendment) or 9(a)(i)(C), be redeemed by the Partnership for cash in an
amount equal to the original Capital Contribution per Excess Unit, plus any
accrued and unpaid distributions thereon, whether or not declared, to the date
of redemption. The written notice of the General Partner shall state (A) the
number of Excess Units held by such holder, (B) the redemption price of the
Excess Units, (C) the date on which such Excess Units shall be redeemed, which
date shall be no later than sixty (60) days following the receipt of the
Exchange Notice, (D) the place or places where such Excess Units are to be
surrendered for payment of the Redemption Price, (E) that distributions on the
Excess Units will cease to accrue on such redemption date, and (F) that payment
of the redemption price will be made upon presentation and surrender of such
Excess Units.
(iv) The redemption of Series B Preferred Units described in SECTION
9(A)(II) and (III) shall be subject to the provisions of SECTION 6(B)(I) and
SECTION 6(C)(II); provided, however, that the term "redemption price" in such
Section shall be read to mean the original Capital Contribution per Series B
Preferred Unit being redeemed plus all accrued and unpaid distributions to the
redemption date.
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(v) Notwithstanding anything to the contrary set forth hereinabove,
(A) no Series B Preferred Units will be exchangeable hereunder for Series B
Preferred Stock to the extent such exchange of all such Series B Preferred Units
tendered for exchange for Series B Preferred Stock would cause such Holder of
such Series B Preferred Units, after giving effect to such exchange, to violate
the limitations set forth in Section 5(e) of the Series B Articles; provided,
however, that the General Partner will waive such limitations if (i) such Holder
demonstrates to the General Partner's reasonable satisfaction that the exchange
of such Series B Preferred Units would not cause the General Partner to fail to
satisfy the requirements of Section 856(a)(6) and 856(h) of the Code assuming
(a) that there were no outstanding stock of any other class of the General
Partner and (b) such determination were made during the last half of the General
Partner's taxable year and (ii) such waiver and exchange does not jeopardize the
REIT status of the General Partner (including, but not limited to, by taking
into account all beneficial and constructive ownership in the General Partner of
such Holder) or cause it to incur income which would fail to qualify as rents
from real property pursuant to 856(d)(2)(B) of the Code and is not inconsistent
with its fiduciary duties to all of its shareholders and the Limited Partners,
including the holders of the Series B Preferred Units and Series B Preferred
Stock and (B) at no time will fewer than 500,000 Series B Preferred Units be
exchangeable, unless the total number of outstanding Series B Preferred Units
shall be less than 500,000 at such time, in which case no fewer than all such
outstanding Series B Preferred Units shall be exchangeable, subject, in any
event, to the provisions in the foregoing clause (A).
(b) Procedure for Exchange. (i) Any exchange shall be exercised pursuant
----------------------
to a notice of exchange (the "EXCHANGE NOTICE") delivered to the General Partner
---------------
by the holder who is exercising such exchange right, by (a) fax and (b) by
certified mail postage prepaid. Except as otherwise provided in Sections
9(a)(ii) and 9(a)(iii), the General Partner and the Partnership shall effect any
exchange of Series B Preferred Units by delivering to each holder of record of
Series B Preferred Units, within ten (10) Business Days following receipt of the
Exchange Notice, (1) certificates representing the Series B Preferred Stock
being issued in exchange for the Series B Preferred Units of such holder being
exchanged and (2) a written notice stating (A) the exchange date, which may be
the date of such written notice or any other date which is not later than
fifteen (15) Business Days following the receipt of the Exchange Notice, (B) the
Exchange Price, and (C) that distributions on the Series B Preferred Units will
cease to accrue on such exchange date. As a condition to the exchange, the
General Partner may require the holders of Series B Preferred Units to make such
representations as may be reasonably necessary for the General Partner to
establish that the issuance of Series B Preferred Stock pursuant to the exchange
shall not be required to be registered under the Securities Act of 1933, as
amended, or any state securities laws. Any Series B Preferred Stock issued
pursuant to this SECTION 9 shall be delivered as shares which are duly
authorized, validly issued, fully paid and nonassessable, free of pledge, lien,
encumbrance or restriction other than those provided in the Charter, the Bylaws
of the General Partner, the Securities Act of 1933, as amended and relevant
state securities or blue sky laws or created by the exchanging holder of Series
B Preferred Units. Each Series B Preferred Unit exchanged hereunder for a share
of Series B Preferred Stock shall be transferred to and acquired
14
by the General Partner and shall not be canceled or redeemed while such share of
Series B Preferred Stock is outstanding.
The certificates representing the Series B Preferred Shares issued
upon exchange of the Series B Preferred Units shall contain the following
legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF EXCEPT (A) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT") OR (B) IF THE CORPORATION HAS BEEN
FURNISHED WITH A SATISFACTORY OPINION OF COUNSEL FOR THE
HOLDER OF THE SHARES REPRESENTED HEREBY, OR OTHER
EVIDENCE SATISFACTORY TO THE CORPORATION, THAT SUCH
TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR
OTHER DISPOSITION IS EXEMPT FROM THE PROVISIONS OF
SECTION 5 OF THE ACT AND THE RULES AND REGULATIONS
THEREUNDER
(ii) In the event of an exchange of Series B Preferred Units for
shares of Series B Preferred Stock, an amount equal to the accrued and unpaid
distributions, whether or not declared, to the date of exchange on any Series B
Preferred Units tendered for exchange shall (a) accrue on the shares of the
Series B Preferred Stock into which such Series B Preferred Units are exchanged,
and (b) continue to accrue on such Series B Preferred Units, which shall remain
outstanding following such exchange, with the General Partner as the holder of
such Series B Preferred Units. Notwithstanding anything to the contrary set
forth herein, in no event shall a holder of a Series B Preferred Unit that was
validly exchanged into Series B Preferred Stock pursuant to this section (other
than the General Partner now holding such Series B Preferred Unit), receive a
distribution out of Operating Cash Flow or Capital Cash Flow of the Partnership,
if such holder, after exchange, is entitled to receive a distribution out of
Operating Cash Flow or Capital Cash Flow with respect to the share of Series B
Preferred Stock for which such Series B Preferred Unit was exchanged or
redeemed.
(iii) Fractional shares of Series B Preferred Stock are not to be
issued upon exchange but, in lieu thereof, the General Partner will pay a cash
adjustment based upon the fair market value of the Series B Preferred Stock on
the day prior to the exchange date as determined in good faith by the Board of
Directors of the General Partner.
15
(c) Adjustment of Exchange Price. (i) The Exchange Price is subject to
----------------------------
adjustment upon certain events, including, (a) subdivisions, combinations and
reclassification of the Series B Preferred Stock, and (b) distributions to all
holders of Series B Preferred Stock of evidences of indebtedness of the General
Partner or assets (including securities, but excluding dividends and
distributions paid in cash out of equity applicable to Series B Preferred
Stock).
(ii) In case the General Partner shall be a party to any transaction
(including, without limitation, a merger, consolidation, statutory share
exchange, tender offer for all or substantially all of the General Partner's
capital stock or sale of all or substantially all of the General Partner's
assets), in each case as a result of which the Series B Preferred Stock will be
converted into the right to receive shares of capital stock, other securities or
other property (including cash or any combination thereof), each Series B
Preferred Unit will thereafter be exchangeable into the kind and amount of
shares of capital stock and other securities and property receivable (including
cash or any combination thereof) upon the consummation of such transaction by a
holder of that number of shares of Series B Preferred Stock or fraction thereof
into which one Series B Preferred Unit was exchangeable immediately prior to
such transaction. The General Partner may not become a party to any such
transaction unless the terms thereof are consistent with the foregoing. In the
event of any conflict between the provisions of this Section 9(c)(ii) and
Section 17.2 of the Partnership Agreement, the provisions of this Section
9(c)(ii) shall control.
SECTION 10. NO CONVERSION RIGHTS. The holders of the Series B
--------------------
Preferred Units shall not have any rights to convert such shares into shares of
any other class or series of stock or into any other securities of, or interest
in, the Partnership.
SECTION 11. NO SINKING FUND. No sinking fund shall be established
---------------
for the retirement or redemption of Series B Preferred Units.
SECTION 12. EXHIBIT A TO PARTNERSHIP AGREEMENT. In order to duly
----------------------------------
reflect the issuance of the Series B Preferred Units provided for herein, the
Partnership Agreement is hereby further amended pursuant to Section 12.3 thereof
by deleting Exhibit A thereto and replacing Exhibit A attached hereto therefor.
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SECTION 13. SPECIAL DISTRIBUTION AND ALLOCATION FOR CERTAIN PROPERTY.
--------------------------------------------------------
Nothing to the contrary contained in Section 8.9 of the Partnership Agreement
shall limit any of the rights or obligations set forth in this Amendment.
SECTION 14. NO PREEMPTIVE OR OTHER RIGHTS. The holder of Series B
-----------------------------
Preferred Units shall have no preemptive rights, including preemptive rights
with respect to any Units or other Partnership Interest of the Partnership
convertible into or carrying rights or options to purchase any such Series B
Preferred Units.
16
IN WITNESS WHEREOF, this Amendment has been executed as of the date
first above written.
▇▇▇▇▇▇▇ REAL ESTATE, INC.
By: /s/ ▇▇▇▇▇▇ ▇. D'Arcy
----------------------------
Name: ▇▇▇▇▇▇ ▇. D'Arcy
Title: President and Chief Executive
Officer