1
EXHIBIT 10.2
TWENTY-SECOND AMENDMENT TO THE
THIRD AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF AIMCO PROPERTIES, L.P.
This TWENTY-SECOND AMENDMENT TO THE THIRD AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF AIMCO PROPERTIES, L.P., dated as of June 20,
2001 (this "Amendment"), is being executed by AIMCO-GP, Inc., a Delaware
corporation (the "General Partner"), as the general partner of AIMCO Properties,
L.P., a Delaware limited partnership (the "Partnership"), pursuant to the
authority conferred on the General Partner by Section 7.3.C(7) of the Third
Amended and Restated Agreement of Limited Partnership of AIMCO Properties, L.P.,
dated as of July 29, 1994, as amended and/or supplemented from time to time (the
"Agreement"). Capitalized terms used, but not otherwise defined herein, shall
have the respective meanings ascribed thereto in the Agreement.
WHEREAS, pursuant to Section 4.2.A of the Agreement, the General
Partner is authorized to determine the designations, preferences and relative,
participating, optional or other special rights, powers and duties of
Partnership Preferred Units.
NOW, THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
(1) The Agreement is hereby amended by the addition of a new exhibit,
entitled "Exhibit EE," in the form attached hereto, which shall be attached to
and made a part of the Agreement.
(2) Except as specifically amended hereby, the terms, covenants,
provisions and conditions of the Agreement shall remain unmodified and continue
in full force and effect and, except as amended hereby, all of the terms,
covenants, provisions and conditions of the Agreement are hereby ratified and
confirmed in all respects.
IN WITNESS WHEREOF, this Amendment has been executed as of the date
first written above.
THE GENERAL PARTNER:
AIMCO-GP, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Name:
Title:
2
EXHIBIT EE
PARTNERSHIP UNIT DESIGNATION OF
THE CLASS NINE PARTNERSHIP PREFERRED UNITS OF
AIMCO PROPERTIES, L.P.
1. NUMBER OF UNITS AND DESIGNATION.
A class of Partnership Preferred Units is hereby designated as "Class
Nine Partnership Preferred Units," and the number of Partnership Preferred Units
constituting such class shall be 1,400,000.
2. DEFINITIONS.
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned thereto in the Third Amended and Restated Agreement of Limited
Partnership of AIMCO Properties, L.P. as amended, supplemented or restated from
time to time (the "Agreement"), as modified by this Partnership Unit Designation
and the defined terms used herein. For purposes of this Partnership Unit
Designation, the following terms shall have the respective meanings ascribed
below:
"Adjustment Factor" means 1.0; provided, however, that in the event
that:
(i) the Previous General Partner (a) declares or pays a dividend on its
outstanding REIT Shares in REIT Shares or makes a distribution to all holders of
its outstanding REIT Shares in REIT Shares, (b) splits or subdivides its
outstanding REIT Shares or (c) effects a reverse stock split or otherwise
combines its outstanding REIT Shares into a smaller number of REIT Shares, the
Adjustment Factor shall be adjusted by multiplying the Adjustment Factor
previously in effect by a fraction, (i) the numerator of which shall be the
number of REIT Shares issued and outstanding on the record date for such
dividend, distribution, split, subdivision, reverse split or combination
(assuming for such purposes that such dividend, distribution, split,
subdivision, reverse split or combination has occurred as of such time) and (ii)
the denominator of which shall be the actual number of REIT Shares (determined
without the above assumption) issued and outstanding on the record date for such
dividend, distribution, split, subdivision, reverse split or combination;
(ii) the Previous General Partner distributes any rights, options or
warrants to all holders of its REIT Shares to subscribe for or to purchase or to
otherwise acquire REIT Shares (or other securities or rights convertible into,
exchangeable for or exercisable for REIT Shares) at a price per share less than
the Value of a REIT Share on the record date for such distribution (each a
"Distributed Right"), then the Adjustment Factor shall be adjusted by
multiplying the Adjustment Factor previously in effect by a fraction (a) the
numerator of which shall be the number of REIT Shares issued and outstanding on
the record date plus the maximum number of REIT Shares purchasable under such
Distributed Rights and (b) the denominator of which shall be the number of REIT
Shares issued and outstanding on the record date plus a fraction (1) the
numerator of which is the maximum number of REIT Shares purchasable under such
Distributed Rights times the minimum purchase price per REIT Share under such
Distributed Rights and (2) the denominator of which is the Value of a REIT Share
as of the record date; provided, however, that, if any such Distributed Rights
expire or become no longer exercisable, then the Adjustment Factor shall be
adjusted, effective retroactive to the date of distribution of the Distributed
Rights, to reflect a reduced maximum number of REIT Shares or any change in the
minimum purchase price for the purposes of the above fraction; and
EE-1
3
(iii) the Previous General Partner shall, by dividend or otherwise,
distribute to all holders of its REIT Shares evidences of its indebtedness or
assets (including securities, but excluding any dividend or distribution
referred to in subsection (i) above), which evidences of indebtedness or assets
relate to assets not received by the Previous General Partner, the General
Partner and/or the Special Limited Partner pursuant to a pro rata distribution
by the Partnership, then the Adjustment Factor shall be adjusted to equal the
amount determined by multiplying the Adjustment Factor in effect immediately
prior to the close of business on the date fixed for determination of
shareholders entitled to receive such distribution by a fraction (i) the
numerator shall be such Value of a REIT Share on the date fixed for such
determination and (ii) the denominator shall be the Value of a REIT Share on the
dates fixed for such determination less the then fair market value (as
determined by the General Partner, whose determination shall be conclusive) of
the portion of the evidences of indebtedness or assets so distributed applicable
to one REIT Share.
Any adjustments to the Adjustment Factor shall become effective
immediately after the effective date of such event, retroactive to the record
date, if any, for such event.
"Business Day" shall mean any day other than a Saturday, Sunday or a
day on which state or federally chartered banking institutions in New York, New
York, are not required to be open.
"Class Nine Partnership Preferred Unit" or "Preferred Unit" shall mean
a Partnership Preferred Unit with the designations, preferences and relative,
participating, optional or other special rights, powers and duties as are set
forth in this Partnership Unit Designation.
"Common Unit" shall mean a Partnership Common Unit of the Partnership.
"Conversion Notice" shall have the meaning set forth in Section
7(a)(ii) of this Partnership Unit Designation.
"Conversion Price" shall mean, as of any date, the quotient obtained by
dividing $52.50 by the Adjustment Factor in effect as of such date.
"Distribution Payment Date" shall mean January 14, April 14, July 14
and October 14 of each year; provided, that if any Distribution Payment Date
falls on any day other than a Business Day, the distribution payment payable on
such Distribution Payment Date shall be paid on the Business Day immediately
following such Distribution Payment Date and no interest shall accrue on such
distribution from such date to such Distribution Payment Date.
"Distribution Period" shall mean the Initial Distribution Period and
each subsequent quarterly Distribution Period commencing on and including
January 15, April 15, July 15 and October 15 of each year and ending on and
including the day preceding the first day of the next succeeding Distribution
Period.
"holder" means either (a) a Partner or (b) an Assignee, owning a
Partnership Unit, that is treated as a member of the Partnership for federal
income tax purposes.
"Initial Distribution Period" shall mean the period commencing on and
including the Issue Date and ending on and including July 14, 2001.
"Internal Rate of Return" shall mean, as of any determination date, the
effective discount rate under which the present value of the Inflows associated
with an outstanding Preferred Unit equals $25.
EE-2
4
For purposes of calculation of Internal Rate of Return, "Inflows" shall mean (a)
all distributions (whether paid in cash or property) that have been received in
respect of such Preferred Unit, (b) the cash payment in respect of distributions
payable on such Preferred Unit pursuant to Section 7(b)(ii) hereof if such
Preferred Unit were converted to Common Units on the determination date, and (c)
the amount by which the Value of a REIT Share, as of the determination date,
exceeds the Conversion Price then in effect. For purposes of calculating the
amounts of any Inflows, all distributions received in property or securities
shall be deemed to have a value equal to the Market Value of such distributions
as of the date such distribution is received. Neither the fact of any transfer
of any Preferred Units nor the amount of any consideration received by the
holder thereof or paid by any successor holder in connection with any transfer
shall affect the calculation of Internal Rate of Return.
"Issue Date" shall mean June 20, 2001.
"Junior Partnership Units" shall have the meaning set forth in Section
3(c) of this Partnership Unit Designation.
"Liquidation Preference" shall have the meaning set forth in Section
5(a) of this Partnership Unit Designation.
"Long-Term Value" shall mean as of any determination date with respect
to a REIT Share, the average of the daily market prices for sixty (60)
consecutive Trading Days immediately preceding the determination date. The
market price for any such Trading Day shall be determined as follows:
(i) if the REIT Shares are listed or admitted to trading on
any securities exchange or The Nasdaq Stock Market's National Market
System, the closing price, regular way, on such day, or if no such sale
takes place on such day, the average of the closing bid and asked
prices on such day, in either case as reported in the principal
consolidated transaction reporting system,
(ii) if the REIT Shares are not listed or admitted to trading
on any securities exchange or The Nasdaq Stock Market's National Market
System, the last reported sale price on such day or, if no sale takes
place on such day, the average of the closing bid and asked prices on
such day, as reported by a reliable quotation source designated by the
General Partner, or
(iii) if the REIT Shares are not listed or admitted to trading
on any securities exchange or The Nasdaq Stock Market's National Market
System and no such last reported sale price or closing bid and asked
prices are available, the average of the reported high bid and low
asked prices on such day, as reported by a reliable quotation source
designated by the General Partner, or if there shall be no bid and
asked prices on such day, the average of the high bid and low asked
prices, as so reported, on the most recent day (not more than ten (10)
days prior to the date in question) for which prices have been so
reported;
provided, however, that, if there are no bid and asked prices reported during
the sixty (60) days prior to the date in question, the Long-Term Value of a REIT
Share shall be determined by the General Partner acting in good faith on the
basis of such quotations and other information as it considers, in its
reasonable judgment, appropriate.
EE-3
5
"Market Value" shall mean for any distributions, other than cash the
fair market value of the distribution as determined in good faith by the General
Partner on the basis of such information as it considers, in its reasonable
judgment, to be appropriate.
"Parity Partnership Units" shall have the meaning set forth in Section
3(b) of this Partnership Unit Designation.
"Partnership" shall mean AIMCO Properties, L.P., a Delaware limited
partnership.
"Record Date" shall have the meaning set forth in Section 4(a) of this
Partnership Unit Designation.
"Senior Partnership Units" shall have the meaning set forth in Section
3(a) of this Partnership Unit Designation.
"set apart for payment" shall be deemed to include, without any action
other than the following, the recording by the Partnership in its accounting
ledgers of any accounting or bookkeeping entry which indicates, pursuant to a
declaration of distributions or other distribution by the board of directors of
the General Partner of the Partnership, the allocation of funds to be so paid on
any series or class of Partnership Units of the Partnership; provided, however,
that if any funds for any class or series of Junior Partnership Units or any
class or series of Parity Partnership Units are placed in a separate account of
the Partnership or delivered to a disbursing, paying or other similar agent,
then "set apart for payment" with respect to the Preferred Units shall mean
placing such funds in a separate account or delivering such funds to a
disbursing, paying or other similar agent.
"Trading Day" shall mean, when used with respect to a REIT Share, (i)
if the REIT Shares are listed or admitted to trading on the NYSE, a day on which
the NYSE is open for the transaction of business, (ii) if the REIT Shares are
not listed or admitted to trading on the NYSE but are listed or admitted to
trading on another national securities exchange or automated quotation system, a
day on which the principal national securities exchange or automated quotation
system, as the case may be, on which the REIT Shares are listed or admitted to
trading is open for the transaction of business, or (iii) if the REIT Shares are
not listed or admitted to trading on any national securities exchange or
automated quotation system, any day other than a Saturday, a Sunday or a day on
which banking institutions in the State of New York are authorized or obligated
by law or executive order to close.
"Transfer Agent" shall mean such transfer agent as may be designated by
the Partnership or its designee as the transfer agent for the Class Nine
Partnership Preferred Units; provided, that if the Partnership has not
designated a transfer agent then the Partnership shall act as the transfer agent
for the Preferred Units.
"Value" shall mean as of any determination date with respect to a REIT
Share, the average of the daily market prices for ten (10) consecutive Trading
Days immediately preceding the determination date. The market price for any such
Trading Day shall be determined as follows:
(i) if the REIT Shares are listed or admitted to trading on
any securities exchange or The Nasdaq Stock Market's National Market
System, the closing price, regular way, on such day, or if no such sale
takes place on such day, the average of the closing bid and asked
prices on such day, in either case as reported in the principal
consolidated transaction reporting system,
EE-4
6
(ii) if the REIT Shares are not listed or admitted to trading
on any securities exchange or The Nasdaq Stock Market's National Market
System, the last reported sale price on such day or, if no sale takes
place on such day, the average of the closing bid and asked prices on
such day, as reported by a reliable quotation source designated by the
General Partner, or
(iii) if the REIT Shares are not listed or admitted to trading
on any securities exchange or The Nasdaq Stock Market's National Market
System and no such last reported sale price or closing bid and asked
prices are available, the average of the reported high bid and low
asked prices on such day, as reported by a reliable quotation source
designated by the General Partner, or if there shall be no bid and
asked prices on such day, the average of the high bid and low asked
prices, as so reported, on the most recent day (not more than ten (10)
days prior to the date in question) for which prices have been so
reported;
provided, however, that, if there are no bid and asked prices reported during
the ten (10) days prior to the date in question, the Value of a REIT Share shall
be determined by the General Partner acting in good faith on the basis of such
quotations and other information as it considers, in its reasonable judgment,
appropriate.
3. RANKING.
Any class or series of Partnership Units of the Partnership shall be
deemed to rank:
(a) prior or senior to the Class Nine Partnership Preferred
Units, as to the payment of distributions and as to the distribution of assets
upon liquidation, dissolution or winding up, if the holders of such class or
series shall be entitled to the receipt of distributions and of amounts
distributable upon liquidation, dissolution or winding up, as the case may be,
in preference or priority to the holders of Class Nine Partnership Preferred
Units (the Partnership Units referred to in this paragraph being hereinafter
referred to, collectively, as "Senior Partnership Units");
(b) on a parity with the Class Nine Partnership Preferred
Units, as to the payment of distributions and as to the distribution of assets
upon liquidation, dissolution or winding up, whether or not the distribution
rates, distribution payment dates or redemption or liquidation prices per
Partnership Units or other denomination thereof be different from those of the
Class Nine Partnership Preferred Units if (i) such class or series of
Partnership Units shall be Class B Partnership Preferred Units, Class C
Partnership Preferred Units, Class D Partnership Preferred Units, Class G
Partnership Preferred Units, Class H Partnership Preferred Units, Class I
Partnership Preferred Units, Class J Partnership Preferred Units, Class K
Partnership Preferred Units, Class L Partnership Preferred Units, Class M
Partnership Preferred Units, Class N Partnership Preferred Units, Class O
Partnership Preferred Units, Class P Partnership Preferred Units, Class Q
Partnership Preferred Units, Class One Partnership Preferred Units, Class Two
Partnership Preferred Units, Class Three Partnership Preferred Units, Class Four
Partnership Preferred Units, Class Six Partnership Preferred Units or Class
Seven Partnership Preferred Units or (ii) the holders of such class or series of
Partnership Units and the Class Nine Partnership Preferred Units shall be
entitled to the receipt of distributions and of amounts distributable upon
liquidation, dissolution or winding up in proportion to their respective amounts
of accrued and unpaid distributions per Partnership Units or other denomination
or liquidation preferences, without preference or priority one over the other
(the Partnership Units referred to in clauses (i) and (ii) of this paragraph
being hereinafter referred to, collectively, as "Parity Partnership Units"); and
EE-5
7
(c) junior to the Class Nine Partnership Preferred Units, as
to the payment of distributions and as to the distribution of assets upon
liquidation, dissolution or winding up, if (i) such class or series of
Partnership Units shall be Partnership Common Units, Class I High Performance
Partnership Units, Class Five Partnership Preferred Units or Class Eight
Partnership Preferred Units or (ii) the holders of Class Nine Partnership
Preferred Units shall be entitled to receipt of distributions or of amounts
distributable upon liquidation, dissolution or winding up, as the case may be,
in preference or priority to the holders of such class or series of Partnership
Units (the Partnership Units referred to in clauses (i) and (ii) of this
paragraph being hereinafter referred to, collectively, as "Junior Partnership
Units").
4. QUARTERLY CASH DISTRIBUTIONS.
(a) Holders of Preferred Units will be entitled to receive,
when and as declared by the General Partner, quarterly cash distributions of
$0.5625 per Preferred Unit. Such distributions shall be cumulative from the
Issue Date, whether or not in any Distribution Period or Periods such
distributions have been declared, and shall be payable quarterly in arrears on
each Distribution Payment Date, commencing on July 14, 2001. Each distribution
shall be payable in arrears to the holders of record of the Preferred Units, as
they appear on the partnership records of the Partnership at the close of
business on the tenth Business Day immediately preceding such Distribution
Payment Date (each a "Record Date"). Accumulated, accrued and unpaid
distributions for any past Distribution Periods may be declared and paid at any
time, without reference to any regular Distribution Payment Date, to holders of
record on such date, which date shall not precede by more than 45 days the
payment date thereof, as may be fixed by the General Partner.
(b) Any distribution payable on the Preferred Units for any
partial Distribution Period shall be computed ratably on the basis of twelve 30
day months and a 360-day year, based on the number of days during such
Distribution Period that the Preferred Units were outstanding. Holders of
Preferred Units shall not be entitled to any distributions, whether payable in
cash, property or stock, in excess of full cumulative distributions, as herein
provided, for the Preferred Units. No interest, or sum of money in lieu of
interest, shall be payable in respect of any distribution payment or payments on
the Preferred Units that may be in arrears.
(c) So long as any of the Preferred Units are outstanding,
except as described in the immediately following sentence, no distributions
shall be declared or paid or set apart for payment by the Partnership and no
other distribution of cash or other property shall be declared or made, directly
or indirectly, by the Partnership with respect to any Parity Partnership Units
unless, in each case, distributions equal to the full amount of accumulated,
accrued and unpaid distributions on all outstanding Preferred Units have been or
contemporaneously are made and a sum sufficient for the payment thereof has been
or contemporaneously is set apart for payment of such distributions on the
Preferred Units for all Distribution Periods ending on or prior to the date of
such distribution is declared, paid, set apart for payment or made, as the case
may be, with respect to such Parity Partnership Unit. When full distributions
are not paid, all distributions declared upon the Preferred Units and all
distributions declared upon any Parity Partnership Units shall be declared
ratably in proportion to the respective amount of distributions accumulated,
accrued and unpaid on the Preferred Units and accumulated, accrued and unpaid on
such Parity Partnership Units.
(d) So long as any of the Preferred Units are outstanding, no
distributions (other than distributions paid in Junior Partnership Units, or
options, warrants or rights to subscribe for or purchase Junior Partnership
Units) shall be declared or paid or set apart for payment by the Partnership and
no other distribution of cash or other property shall be declared or made,
directly or indirectly, by
EE-6
8
the Partnership with respect to any Junior Partnership Units nor shall Junior
Partnership Units be redeemed, purchased or otherwise acquired (other than a
redemption, purchase or other acquisition of Common Units made for purposes of
an employee incentive or benefit plan of the Partnership or any subsidiary) for
any consideration (or any moneys be paid to or made available for a sinking fund
for the redemption of any such Junior Partnership Units, directly or indirectly,
by the Partnership (except by conversion into or exchange for Junior Partnership
Units, or options, warrants or rights to subscribe for or purchase Junior
Partnership Units)), nor shall any other cash or other property otherwise be
paid or distributed to or for the benefit of any holder of Junior Partnership
Units in respect thereof, directly or indirectly, by the Partnership unless, in
each case, distributions equal to the full amount of all accumulated, accrued
and unpaid distributions on all outstanding Preferred Units have been declared
and paid, or such distributions have been declared and a sum sufficient for the
payment thereof has been set apart for such payment, on all outstanding
Preferred Units for all Distribution Periods ending on or prior to the date such
distribution is declared, paid, set apart for payment or made with respect to
such Junior Partnership Units, or the date such Junior Partnership Units are
redeemed, purchased or otherwise acquired or monies paid to or made available
for any sinking fund for such redemption, or the date any such cash or other
property is paid or distributed to or for the benefit of any holders of Junior
Partnership Units in respect thereof, as the case may be.
(e) Notwithstanding the provisions of this Section 4, the
Partnership shall not be prohibited from (i) declaring or paying or setting
apart for payment any distribution on any Parity Partnership Units or (ii)
redeeming, purchasing or otherwise acquiring any Parity Partnership Units, in
each case, if such declaration, payment, redemption, purchase or other
acquisition is necessary in order to maintain the continued qualification of the
Previous General Partner as a REIT under Section 856 of the Code.
5. LIQUIDATION PREFERENCE.
(a) In the event of any liquidation, dissolution or winding up
of the Partnership, whether voluntary or involuntary, before any allocation of
income or gain by the Partnership shall be made to or set apart for the holders
of any Junior Partnership Units, to the extent possible, the holders of
Preferred Units shall be entitled to be allocated income and gain to effectively
enable them to receive a liquidation preference of (i) $25 per unit (the
"Liquidation Preference"), plus (ii) accumulated, accrued and unpaid
distributions (whether or not earned or declared) to the date of final
distribution to such holders; but such holders shall not be entitled to any
further allocation of income or gain. Until all holders of the Preferred Units
have been paid the Liquidation Preference in full, no allocation of income or
gain will be made to any holder of Junior Partnership Units upon the
liquidation, dissolution or winding up of the Partnership.
(b) If, upon any liquidation, dissolution or winding up of the
Partnership, the assets of the Partnership, or proceeds thereof, distributable
among the holders of Preferred Units shall be insufficient to pay in full the
Liquidation Preference and liquidating payments on any Parity Partnership Units,
then following certain allocations made by the Partnership, such assets, or the
proceeds thereof, shall be distributed among the holders of Preferred Units and
any such Parity Partnership Units ratably in the same proportion as the
respective amounts that would be payable on such Preferred Units and any such
Parity Partnership Units if all amounts payable thereon were paid in full.
(c) For purposes of this Section 5, (i) a consolidation or
merger of the Partnership with one or more partnerships, corporations or other
entities, or (ii) a sale or transfer of
EE-7
9
all or substantially all of the Partnership's assets, shall not be deemed to be
a liquidation, dissolution or winding up, voluntary or involuntary, of the
Partnership.
(d) Upon any liquidation, dissolution or winding up of the
Partnership, after all allocations shall have been made in full to the holders
of Preferred Units and any Parity Partnership Units to enable them to receive
their respective liquidation preferences, any Junior Partnership Units shall be
entitled to receive any and all assets remaining to be paid or distributed, and
the holders of the Preferred Units shall not be entitled to share therein.
6. VOTING RIGHTS.
Except as otherwise required by applicable law or in the
Agreement, the holders of the Preferred Units shall have the same voting rights
as holders of Common Units. As long as any Preferred Units are outstanding, in
addition to any other vote or consent of Partners required by law or by the
Agreement, the affirmative vote or consent of holders of at least 662/3% of the
outstanding Preferred Units will be necessary for effecting any amendment of any
of the provisions of this Partnership Unit Designation that materially and
adversely affects the rights or preferences of the holders of the Preferred
Units; provided, however, that no such vote of the holders of Preferred Units
shall be required if, at or prior to the time when such amendment, alteration or
repeal is to take effect, provision is made for the conversion of all Preferred
Units at the time outstanding to the extent such redemption is authorized by
Section 7 of this Partnership Unit Designation. The creation or issuance of any
class or series of Partnership Units, including, without limitation, any
Partnership Units that may have rights junior to, on a parity with, or senior or
superior to the Preferred Units, will not be deemed to materially and adversely
affect the rights or preferences of the holders of Preferred Units. With respect
to the exercise of the above-described voting rights, each Preferred Unit will
have one (1) vote per Preferred Unit.
7. CONVERSION
(a) (i) Subject to and upon compliance with the provisions of
this Section 7, a holder of Preferred Units shall have the right, at such
holder's option, to convert such Preferred Units, in whole or in part, into the
number of Common Units per Preferred Unit obtained by dividing the Liquidation
Preference (excluding any accumulated, accrued and unpaid distributions) per
Preferred Unit by the Conversion Price in effect at the time and on the date
provided for in Section 7(b)(iv) hereof. In order to exercise the conversion
right, the holder of each Preferred Unit to be converted shall surrender the
certificate representing such unit, duly endorsed or assigned to the Partnership
or in blank, at the office of the Transfer Agent, accompanied by written notice
to the Partnership that the holder thereof elects to convert such Preferred
Unit.
(ii) At any time (x) on or after the first anniversary of
the Issue Date and within five (5) Business Days after any date on which the
Internal Rate of Return exceeds 20% or (y) on or after the third anniversary of
the Issue Date, and in the case of either (x) or (y), if the Long-Term Value or
a REIT Share and the Value of a REIT Share, as of any of the immediately
preceding five (5) Business Days, is in excess of $52.50, the Partnership shall
have the right, but not the obligation, to cause such Preferred Units to be
converted, in whole or in part, into the number of Common Units per Preferred
Unit obtained by dividing the Liquidation Preference (excluding any accumulated,
accrued and unpaid distributions) per Preferred Unit by the Conversion Price in
effect at the time and on the date provided for in Section 7(b)(iv) hereof. In
order to exercise the conversion right, the Partnership shall send notice of
such conversion (the "Conversion Notice") to each holder of record of Preferred
Units address as the same appears on the records of the Partnership. Any
Conversion Notice which was
EE-8
10
mailed in the manner herein provided shall be conclusively presumed to have been
duly given on the date mailed. Each such Conversion Notice shall state, as
appropriate: (1) the date of conversion, which date may be any date within
twenty (20) Business Days following the date on which the Conversion Notice is
mailed; (2) the number of Preferred Units to be converted and, if fewer than all
such Preferred Units held by such holder are to be converted, the number of such
Preferred Units to be converted; and (3) the then current Conversion Price. Upon
receiving the Conversion Notice, each such holder shall promptly surrender the
certificates representing such Preferred Units as are being converted on the
conversion date, duly endorsed or assigned to the Partnership or in blank, at
the office of the Transfer Agent; provided, however, that the failure to so
surrender any such certificates shall not in any way affect the validity of the
conversion of the underlying Preferred Units into Common Units.
(iii) If fewer than all the outstanding Preferred Units
are to be converted pursuant to Section 7(a)(ii) hereof, the Preferred Units to
be converted shall be selected by the Partnership from outstanding Preferred
Units not previously called for conversion by lot or, with respect to the number
of Preferred Units held of record by each holder of such Preferred Units, pro
rata (as nearly as may be) or by any other method as may be determined by the
General Partner in its discretion to be equitable. If fewer than all the
Preferred Units represented by any certificate are converted, then a new
certificate representing the unredeemed Preferred Units shall be issued without
cost to the holders thereof.
(b) (i) Unless the Common Units issuable on conversion are to
be issued in the same name as the name in which such Preferred Units are
registered, each such Preferred Unit surrendered following conversion shall be
accompanied by instruments of transfer, in form satisfactory to the Partnership,
duly executed by the holder or such holder's duly authorized representative, and
an amount sufficient to pay any transfer or similar tax (or evidence reasonably
satisfactory to the Partnership demonstrating that such taxes have been paid).
(ii) A holder of Preferred Units shall, as of the date of
the conversion of such Preferred Units to Common Units, be entitled to receive a
cash payment in respect of any distributions (whether or not earned or declared)
that are accumulated, accrued and unpaid thereon as of the time of such
conversion, provided, however, that payment in respect of any distributions on
such Preferred Units that has been declared but for which the Distribution
Payment Date has not yet been reached shall be payable as of such Distribution
Payment Date. Except as provided above, the Partnership shall make no payment or
allowance for unpaid distributions, whether or nor in arrears, on converted
Preferred Units.
(iii) As promptly as practicable after the surrender of
certificates for Preferred Units, and in any event no later than five (5)
Business Days after the date of such surrender, the Partnership shall issue and
deliver at such office to such holder, or send on such holders' written order, a
certificate or certificates for the number of full Common Units issuable upon
the conversion of such Preferred Units in accordance with the provisions of this
Section 7, and any fractional interest in respect of a Common Unit arising upon
such conversion shall be settled as provided in Section 7(c) hereof.
(iv) Each conversion shall be deemed to have been
effected (x) in the case of a conversion pursuant to Section 7(a)(i) hereof,
immediately prior to the close of business on the date on which the certificates
for Preferred Units shall have been surrendered and written notice of conversion
is received by the Transfer Agent in accordance with Section 7(a)(i) hereof, and
(y) in the case of a conversion pursuant to Section 7(a)(ii) hereof, immediately
prior to the close of business on
EE-9
11
the date identified as the conversion date in the Conversion Notice sent by the
Partnership pursuant to Section 7(a)(ii) hereof; and, in the case of (x) or (y),
the person or persons in whose name or names any certificate or certificates for
Common Units shall be issuable upon such conversion shall be deemed to have
become the holder or holders of record of the Common Units represented thereby
at such time on such date, and such conversion shall be at the Conversion Price
in effect at such time on such date, unless the transfer books of the
Partnership shall be closed on that date, in which event such person or persons
shall be deemed to become such holder or holders of record at the close of
business on the next succeeding day on which such transfer books are open, but
such conversion shall be at the Conversion Price (x) in the case of a conversion
pursuant to Section 7(a)(i) hereof, in effect on the date immediately prior to
the close of business on the date on which certificates for the Preferred Units
have been surrendered and the notice of conversion has been received by the
Transfer Agent in accordance with Section 7(a)(i) hereof, and (y) in the case of
conversion pursuant to Section 7(a)(ii) hereof, on the date of conversion set
forth in the Conversion Notice sent by the Partnership.
(c) No fractional Common Units or scrip representing fractions
of a Common Unit shall be issued upon conversion of the Preferred Units. Instead
of any fractional interest in a Common Unit that would otherwise be deliverable
upon the conversion of Preferred Units, the Partnership shall pay to the holder
of such Preferred Units an amount of cash equal to the product of (i) such
fraction and (ii) the Value of a REIT Share as of the date of conversion. If
more than one of any holder's Preferred Units shall be converted at one time,
the number of full Common Units issuable upon conversion thereof shall be
computed on the basis of the aggregate number of Preferred Units so converted.
(d) (i) If the Partnership shall be a party to any transaction
(including without limitation, a merger, consolidation, sale of all or
substantially all of the Partnership's assets or recapitalization of the Common
Units, but excluding any transaction as to which a change in the Adjustment
Factor would be effected) (each of the foregoing being referred to herein as a
"Transaction"), in each case, as a result of which Common Units shall be
converted into the right to receive securities or other property (including cash
or any combination thereof), each Preferred Unit which is not converted into the
right to receive securities or other property in connection with such
Transaction shall thereupon be convertible into the kind and amount of
securities or other property (including cash or any combination thereof)
receivable upon such consummation by a holder of that number of Common Units
into which a Preferred Unit was convertible immediately prior to such
Transaction. The Partnership shall not be a party to any Transaction unless the
terms of such Transaction are consistent with the provisions of this Section
7(d), and it shall not consent or agree to the occurrence of any Transaction
until the Partnership has entered into an agreement with the successor or
purchasing entity, as the case may be, for the benefit of the holders of the
Preferred Units that will contain provisions enabling the holders of the
Preferred Units that remain outstanding after such Transaction to convert into
the consideration received by holders of Common Units at the Conversion Price in
effect immediately prior to such Transaction. The provisions of this Section
7(d)(i) shall apply to successive Transactions.
(ii) Whenever the Conversion Price is adjusted as herein
provided (whether pursuant to Section 7(d)(i) hereof or as a result of a change
in the Adjustment Factor), the General Partner shall promptly file with the
Transfer Agent an officer's certificate setting forth the Conversion Price after
such adjustment and setting forth a brief statement of the facts requiring such
adjustment which certificate shall be conclusive evidence of the correctness of
such adjustment absent manifest error. Promptly after delivery of such
certificate, the General Partner shall prepare a notice of such adjustment of
the Conversion Price setting forth the adjusted Conversion Price and the
effective date such adjustment becomes effective and shall mail such notice of
such adjustment of the Conversion
EE-10
12
Price to each holder of Preferred Units at such holder's address as shown on the
records of the Partnership.
(iii) In any case in which an adjustment to the Adjustment
Factor shall become effective immediately after the effective date of an event,
retroactive to the record date, if any, for such event, the Partnership may
defer until the occurrence of such event (x) issuing to the holder of any
Preferred Units converted after such record date and before the occurrence of
such event the additional Common Units issuable upon such conversion by reason
of the adjustment required by such event over and above the Common Units
issuable upon such conversion before giving effect to such adjustment and (y)
paying to such holder any amount of cash in lieu of any fraction pursuant to
Section 7(c) hereof.
(iv) There shall be no adjustment of the Conversion Price
in case of the issuance of any unit of the Partnership except as specifically
set forth in the definition of "Adjustment Factor" or in this Section 7(d). In
addition, notwithstanding any other provision contained in the definition of
"Adjustment Factor" or in this Section 7(d), there shall be no adjustment of the
Conversion Price upon the payment of any cash distributions on any units of the
Partnership.
(v) If the Partnership shall take any action affecting
the Common Units, other than action described in the definition of "Adjustment
Factor" or in this Section 7(d) that, in the opinion of the General Partner
would materially adversely affect the conversion rights of the holders of
Preferred Units, the Conversion Price for the Preferred Units may be adjusted,
to the extent permitted by law in such manner, if any, and at such time as the
General Partner, in its sole discretion, may determine to be equitable under the
circumstances.
(vi) In addition to any other adjustment required hereby,
to the extent permitted by law, the Partnership from time to time may decrease
the Conversion Price by any amount, permanently or for a period of at least
twenty (20) Business Days, if the decrease is irrevocable during the period.
(e) For purposes of the definition of "Twelve-Month Period" in
the Agreement, any holder of Preferred Units that have been converted to Common
Units shall be deemed to have acquired such Common Units when such Preferred
Units were acquired.
(f) The Partnership will pay any and all documentary stamp or
similar issue or transfer taxes payable in respect of the issue or delivery of
Common Units or other securities or property on conversion of Preferred Units
pursuant hereto; provided, however, that the Partnership shall not be required
to pay any tax that may be payable in respect of any transfer involved in the
issue or delivery of Common Units or other securities or property in a name
other than that of the holder of the Preferred Units to be converted, and no
such issue or delivery shall be made unless and until the person requesting such
issue or delivery has paid to the Partnership the amount of any such tax or
established, to the reasonable satisfaction of the Partnership, that such tax
has been paid.
8. STATUS OF REACQUIRED PREFERRED UNITS.
All Preferred Units which have been issued and reacquired in any manner
by the Partnership shall be deemed cancelled and no longer outstanding.
EE-11
13
9. GENERAL.
The ownership of the Preferred Units shall be evidenced by one or more
certificates in the form of Annex I hereto. The General Partner shall amend
Exhibit A to the Agreement from time to time to the extent necessary to reflect
accurately the issuance of, and subsequent conversion or any other event having
an effect on the ownership of, the Preferred Units.
10. ALLOCATIONS OF INCOME AND LOSS.
Subject to the terms of Section 4 hereof, for each taxable year, (i)
each holder of Preferred Units will be allocated, to the extent possible, net
income of the Partnership in an amount equal to the distributions made on such
holder's Preferred Units during such taxable year, and (ii) each holder of
Preferred Units will be allocated its pro rata share, based on the portion of
outstanding Preferred Units held by it, of any net loss of the Partnership that
is not allocated to holders of Partnership Common Units or other interests in
the Partnership.
11. RESTRICTIONS ON TRANSFER.
Preferred Units are subject to the same restrictions on transfer
applicable to Common Units, as set forth in the Agreement.
EE-12