EXHIBIT 4.2
HOME PROPERTIES OF NEW YORK, L.P.
AMENDMENT NO. 27
TO
SECOND AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP
This Amendment amends, as of December 22, 1999, the Second Amended and
Restated Agreement of Limited Partnership, as amended ("Partnership
Agreement"), dated as of September 23, 1997, of Home Properties of New York
L.P. (the "Partnership") among Home Properties of New York, Inc., as
general partner (the "General Partner"), and each of the persons listed on
Schedule A to the Partnership Agreement, as amended from time to time, as
limited partners.
WHEREAS, the Class A Limited Partnership Interest ("Class A Interest")
was created pursuant to Article X of the Partnership Agreement and was
issued to the State Treasurer of the State of Michigan, Custodian of
Michigan Public School Employees' Retirement System, State Employees'
Retirement System, Michigan State Police Retirement System and Michigan
Judges' Retirement System (collectively, the "SMRS") as of December 30,
1996.
WHEREAS, the General Partner has been advised that it is preferable
for SMRS to hold their investment through a class of preferred stock of the
General Partner rather than through the existing Class A Interest in the
Partnership; and
WHEREAS, the General Partner has created a new class of preferred
stock entitled "Series A Convertible Preferred Stock" (the "Series A
Preferred Stock") with substantially the same rights and privileges as the
Class A Interest pursuant to the terms of Articles Supplementary (the
"Articles Supplementary") to the Amended and Restated Articles of
Incorporation of the General Partner, as amended; and
WHEREAS, the General Partner has contributed 1,666,667 shares of the
Series A Preferred Stock to the capital of its wholly-owned "qualified REIT
subsidiary" Home Properties Trust (the "QRS") so that the QRS may deliver
the 1,666,667 shares of Series A Preferred Stock to SMRS in exchange for
the Class A Interest currently held by SMRS and, thereafter, hold such
Class A Interest pursuant to the terms of the Amendment to Partnership
Interest Purchase Agreement and Exchange Agreement, dated as of the date
hereof, among the General Partner, the Partnership and SMRS (the "Exchange
Agreement"); and
WHEREAS, SMRS has agreed to exchange its Class A Interest for
1,666,667 shares of the Series A Preferred Stock as further provided in the
Exchange Agreement; and
WHEREAS, the parties desire to reflect the withdrawal, as of December
22, 1999, of SMRS as a partner of the Partnership and to reflect to
admission of the QRS as holder of all of the Class A Interest and to amend
certain rights and benefits of the Class A Interest to parallel those set
forth for the Series A Preferred Stock in the Articles Supplementary.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained in the Exchange Agreement and this Amendment, SMRS,
the Partnership, and the General Partner agree as follows:
1. Except as otherwise defined herein, capitalized terms used in
this Amendment shall have the meaning ascribed thereto in the Partnership
Agreement.
2. SMRS hereby transfers and assigns the Class A Interest to the QRS
and the QRS assumes such Class A Interest, modified as set forth below, and
SMRS hereby withdraws as a limited partner of the Partnership effective as
of December 1, 1999. The General Partner hereby consents to the admission
of the QRS as a limited partner of the Partnership holding the Class A
Interest and the Trust is so admitted.
3. Article X of the Partnership Agreement is hereby deleted and
replaced in its entirety with the following:
ARTICLE X
CLASS A LIMITED PARTNERSHIP INTERESTS
Section 10.01 NAME. Pursuant to Section 3.03 of this
Partnership Agreement, a class of Partnership Interest was
created as of December 30, 1996 known as the Class A Limited
Partnership Interest (the "Class A Interest").
Section 10.02 CAPITAL CONTRIBUTION. On December 30, 1996,
the State Treasurer of the State of Michigan, Custodian of
Michigan Public School Employees' Retirement System, State
Employees' Retirement System, Michigan State Police Retirement
System and Michigan Judges' Retirement System ("SMRS")
contributed $35,000,000 (the "Original Investment") to the
Partnership in consideration for the issuance to it by the
Partnership of the Class A Interest which was deemed to be the
Capital Contribution of the Class A Interest Holder(s). The
QRS shall assume the Capital Account of SMRS with respect to
the Class A Interest as of December 1, 1999.
Section 10.03 STATUS OF HOLDERS. Holder(s) of all or any
portion of the Class A Interest shall be Limited Partner(s) of
the Partnership and, except as otherwise provided herein, shall
be entitled to all of the rights and privileges of the other
Limited Partners, as well as the additional rights and
privileges described below. For purposes of voting on matters
that must be approved by the Limited Partners, the Class A
Interest Holder(s) shall be deemed to hold the number of Units
equal to $35,000,000 divided by the Conversion Price times the
percentage of the Class A Interest originally issued hereby
that has not been converted into Conversion Units (as defined
in, and subject to adjustment in accordance with, Section
10.06(b) below) provided, however, if at any time the Class A
Interest is held by an Affiliated Person, the Class A Interest
Holder(s) shall have no right to vote on matters that must be
approved by the Limited Partners other than those matters to be
voted on by the Class A Interest Holder(s) as a class, as set
forth in Section 10.08 below.
Section 10.04 CERTAIN ADDITIONAL DEFINITIONS. As used in
this Article X, the following terms have the meaning set forth
below:
"Accrued Return" has the meaning set forth in Section
10.05(e).
"Articles Supplementary" shall mean the Articles
Supplementary relating to the Series A Preferred Stock.
"Board of Directors" shall mean the Board of Directors of
the General Partner.
"Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York, New York are
authorized or required by law to close.
"Code" means the Internal Revenue Code of 1986, as amended,
and the regulations promulgated thereunder.
"Common Stock" means the General Partner's common stock,
par value $.01 per share.
"Conversion Date" has the meaning set forth in Section
10.06(a)
"Conversion Notice" has the meaning set forth in Section
10.06(a).
"Conversion Price" has the meaning set forth in Section
10.06(b).
"Conversion Right" has the meaning set forth in Section
10.06(a).
"Conversion Units" means the Units received on conversion
of all or any of the Series A Interest that have not previously
been sold or otherwise transferred on a Public Basis.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended.
"Junior Units" has the meaning set forth in Section
10.07(a).
"Market Value" means, with respect to a share of Common
Stock, the average of the daily market price for the 10
consecutive trading days immediately preceding the date on
which the Market Value is to be determined. The market price
for each such trading day shall be: (i) if the shares of
Common Stock are listed or admitted to trading on any
securities exchange or the NASDAQ-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, or (ii) if the shares of Common Stock
are not listed or admitted to trading on any securities
exchange or the NASDAQ-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 if 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 10 days
prior to the date in question) for which prices have been so
reported; provided, that if there are no bid and asked prices
reported during the 10 days prior to the date in question, the
Market Value of a share of Common Stock 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.
"9.0% Preferred Return Period" has the meaning set forth in
Section 10.05(a).
"Parity Units" has the meaning set forth in
Section10.07(a).
"Preferred Return" has the meaning set forth in Section
10.05(a).
"Preferred Return Payment Date" has the meaning set forth
in Section 10.05(c).
"Public Basis" means the sale of any shares of Common Stock
by means of any public stock exchange or in any Public
Offering.
"Public Offering" means a public offering of shares of
Common Stock or shares of Preferred Stock of the General
Partner or interests in the Partnership (including Units),
other than a registration relating solely to the sale of
securities to participants in a dividend reinvestment plan, a
registration relating to a business combination or similar
transaction permitted to be registered on a Form S-4 or any
form serving a comparable purpose, a registration relating
solely to the sale of securities to participants in a stock or
employee benefit plan, or a registration permitted under Rule
462 under the Securities Act registering additional securities
of the same class as were included in an earlier registration
statement for the same offering and declared effective.
"Qualified REIT Subsidiary" means the Partnership, the QRS
or any other qualified real estate investment trust subsidiary,
as such term in defined in the Code, of the General Partner.
"Securities Act" means the Securities Act of 1933, as
amended.
"Senior Units" has the meaning set forth in Section
10.07(a).
"Series A Issuance Date" has the meaning set forth in
Section 10.05(c).
"Series A Liquidation Preference" has the meaning set forth
in Section 10.09(a).
"Series A Preferred Stock" means the class of preferred
stock described in the Articles Supplementary and designated
"Series A Convertible Preferred Stock ."
"SMRS" means Michigan Public School Employees' Retirement
System, State Employees' Retirement System, Michigan State
Police Retirement System and Michigan Judges' Retirement
System.
Section 10.05 PREFERRED RETURN.
(a) The General Partner shall pay a distribution equal to the
Preferred Return to the holders of the Series A Interest on a quarterly
basis in accordance with Section 10.05(c) prior to the payment of any
distributions to the holders of Junior Units, whether such distributions
constitute Available Cash, a return of capital or other distribution.
Commencing as of December 1, 1999 and, except as provided below in this
subparagraph, continuing to December 30, 2003 (the "9.0% PREFERRED RETURN
PERIOD"), the holders of the Class A Interest shall receive, on a
quarterly basis in accordance with Section 10.05 (c), a distribution
equal to the greater of: (x) an amount equal to the product of (i) the
number of Units equal to $35,000,000 divided by the Conversion Price
times the percentage of the Class A Interest originally issued hereby
that has not been converted into Conversion Units (as defined in, and
subject to adjustment in accordance with, Section 10.06(b) below) held by
such holders multiplied by the Series A Liquidation Preference and
(ii) 2.25% (or 9.0% per annum), or (y) an amount equal to the dividends
and other distributions that would have been paid on the number of
Conversion Units equal to $35,000,000 divided by the Conversion Price (as
such may be adjusted from time to time pursuant to Section 10.05(d)) (the
"PREFERRED RETURN"). Notwithstanding the above, if on December 30, 2003,
the holders of the Class A Interest have not been paid actual
distributions of at least $809,375 (as such may be adjusted from time to
time pursuant to Section 10.05(d)) on each of the prior eight (8)
consecutive Preferred Return Payment Dates (as hereinafter defined) or
any distribution of a Preferred Return from any prior period remains
unpaid, the 9.0% Preferred Return Period shall continue until the
Preferred Return Payment Date which shall be the eighth (8th) consecutive
Preferred Return Payment Date thereafter occurring on which the holders
of the Class A Interest have been paid actual distributions of at least
$809,375 (as such may be adjusted from time to time pursuant to
Section 10.05(d)) and until there remains outstanding no unpaid
distribution of a Preferred Return.
(b) On and after December 30, 2003, the holders of the Class A
Interest shall continue to receive, on a quarterly basis in accordance
with Section 10.05(c), an amount equal to the dividends and other
distributions that would have been paid on the number of Conversion Units
equal to $35,000,000 divided by the Conversion Price (as such may be
adjusted from time to time pursuant to Section 10.06(b)).
(c) The distributions required by this Section 10.05 shall be cumulative,
shall accrue from the Series A Issuance Date (as hereinafter defined) and
shall be payable to the holders of the Class A Interest, when, as and if
declared by the Board of Directors, out of funds legally available for
the payment of distributions, on a calendar quarterly basis on the same
date that the General Partner pays a quarterly or other distribution to
the holders of the Units. If the General Partner does not pay a
distribution to the holders of the Units, the distributions required by
this Section 10.05 shall be payable on the fourth Tuesday of each of
February, May, August and November or on the next Business Day thereafter
if such day shall not be a Business Day. Each of the dates on which such
a distribution shall be so payable shall be a "PREFERRED RETURN PAYMENT
DATE." The first distribution payable to the holders of the Class A
Interest after the Series A Issuance Date shall be pro-rated for the
number of days occurring from the date the 1,666,667 shares of Series A
Preferred Stock are originally issued to SMRS (the "SERIES A ISSUANCE
DATE") to and including the last day of the calendar quarter in which the
Series A Issuance Date occurs.
(d) To the extent that any portion of the Class A interest is converted
into Conversion Units in accordance with Section 10.06 below, the
distributions described in Sections 10.05(a) and 10.05(b) above shall
terminate with respect to the portion of the Class A Interest so
converted; provided, however, that on the next Preferred Return Payment
Date the holders of the Conversion Units issued upon the conversion of
the Class A Interest corresponding to the number of Series A Preferred
Stock converted shall receive a distribution equal to the distribution
which would otherwise have been payable with respect to such the
equivalent portion of the Class A Interest multiplied by a fraction, the
numerator of which is the number of days between the Preferred Return
Payment Date immediately preceding the conversion and the date of the
conversion and the denominator of which is 90, less any distribution
payable to the holders of Units during the same 90 day period.
(e) To the extent that a distribution required by this Section 10.05 is
not paid on any Preferred Return Payment Date, the amount not paid shall
accumulate and accrue interest at the rate of 9.0% per annum during the
9.0% Preferred Return Period, compounded quarterly on each Preferred
Return Payment Date that it remains unpaid (the "ACCRUED RETURN").
Thereafter, any distributions paid by the General Partner shall first be
applied to pay any Accrued Return previously due, but not paid.
(f) So long as any of the Class A Interest is outstanding, no
distributions (other than dividends or distributions paid in kind, or
options, warrants or rights to subscribe for or purchase of, Junior
Units) shall be declared or paid or set apart for payment by the General
Partner or the Partnership or other distribution of cash or other
property declared or made directly or indirectly by the General Partner,
the Partnership or any affiliate or any Person acting on behalf of the
General Partner or the Partnership or any of their affiliates with
respect to any Junior Units, nor shall any shares of Junior Units, be
redeemed, purchased or otherwise acquired (other than a redemption,
purchase or other acquisition of Units made for purposes of an employee
incentive or benefit plan of the General Partner or any subsidiary or an
acquisition of an immaterial number of Units as determined by the Board
of Directors to be in the best interests of the General Partner and/or
the Partnership) for any consideration (or any moneys be paid to or made
available for a sinking fund for the redemption of any such Units)
directly or indirectly by the General Partner, the Partnership or any
affiliate or any Person acting on behalf of the General Partner, the
Partnership or any of their affiliates (except by conversion into or
exchange for Junior Units or Conversion Units), nor shall any other cash
or other property otherwise be paid or distributed to or for the benefit
of any holder of Junior Units in respect thereof, directly or indirectly,
by the General Partner, the Partnership or any affiliate or any Person
acting on behalf of the General Partner, the Partnership or any of their
affiliates unless in each case (i) the full cumulative distributions
(including all accumulated, accrued and unpaid dividends) on the Class A
Interest and any other Parity Units of the Partnership shall have been
paid or such distributions have been declared and set apart for payment
for all past periods with respect to the Class A Units and all past
distribution periods with respect to such Parity Units and
(ii) sufficient funds shall have been paid or set apart for the payment
of the full dividend for the current dividend period with respect to the
Class A Interest and the current dividend period with respect to such
Parity Units. In addition, none of the actions described in this Section
10.05(f) regarding Junior Units, shall be made with respect to Parity
Units, other than on a pari passu basis with the Class A Interest.
Section 10.06. CONVERSION RIGHTS.
(a) All or a portion of the Class A Interest shall be deemed to have
automatically converted into Conversion Units upon any conversion of the
Series A Preferred Stock as provided in the Articles Supplementary (the
"CONVERSION RIGHT"). In the event that any holder of the Series A
Preferred Stock has exercised its Conversion Right, the General Partner
shall notify the holders of the Class A Interest that their interest
shall automatically be converted on a pro rata basis with respect to that
portion of the Class A Interest corresponding to the number of shares of
Series A Preferred Stock that are to be converted (the "CONVERSION
NOTICE"). Within 10 days after the giving of a Conversion Notice (the
"CONVERSION DATE"), the General Partner will notify each holder of the
Class A Interest of the number of Units issuable upon the conversion of
the portion of the Class A Interest specified in such Conversion Notice.
Any fractional Unit arising upon a conversion will be settled as provided
in Section 10.06(e). The portion of the Class A Interest so redeemed
will no longer be deemed to be outstanding and all rights of the holder
with respect to that potion of the Class A Interest so converted will
immediately terminate, except the right to receive Units and any unpaid
Accrued Return and/or other accumulated, accrued and unpaid
distributions.
(b) Upon each conversion, the holder of the shares of Class A Interest so
converted will receive that number of Conversion Units as shall equal the
product of (i) the percentage determined by dividing the number of shares
of Series A Preferred Stock so converted by the 1,666,667 shares of the
Series A Preferred Stock originally issued hereby and (ii) $35,000,000,
divided by the Conversion Price, for the shares of Class A Preferred
Stock determined in accordance with the Articles Supplementary, which as
of December 1, 1999 was $21.00, and is subject to adjustment as provided
in the Articles Supplementary (the "CONVERSION PRICE").
(c) The General Partner will at all times reserve and keep available,
free from preemptive rights, for the purpose of effecting conversion of
the Class A Interest, the maximum number of Units which the General
Partner would be required to deliver upon the conversion of all the
outstanding Class A Interest. For the purpose of this Section 10.06(c),
the number of Units which the General Partner would be required to
deliver upon the conversion of all of the Class A Interest will be
computed as if at the time of the computation all the outstanding Class A
Interest were held by a single holder.
(d) No fractional Units will be issued upon conversion of the Class A
Interest. Any fractional Unit resulting from conversion of the Class A
Interest will be paid in cash (computed to the nearest cent) based on the
Market Value of the HP Shares on the trading day next preceding the
Conversion Date.
(e) With respect to Conversion Dates occurring on or after December 31,
2001, a holder of the Class A Interest so converted shall receive, in
addition to the Units to be issued pursuant to Section 10.06(b), that
additional number of Units, if any, as shall be necessary in order that
such holder will receive, on the next date on which distributions are
paid by the General Partner with respect to the Units, distributions
equal to $.4725 per share of the Conversion Units converted, assuming
that the distribution paid per Unit did at the time of conversion not
change from the distribution paid on the payment date immediately
preceding the Conversion Date.
(f) Except as otherwise provided in Sections 10.06(a) and (b),
the Class A Interest shall not be convertible in to any other
securities of the Partnership or the General Partner.
Section 10.07. RANKING.
(a) Any class or series of interests in the Partnership shall
be deemed to rank:
(i) prior or senior to the Class A Interest, as to the payment
of periodic distributions and as to 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 or of amounts distributable upon liquidation,
dissolution or winding up, as the case may be, in preference or
priority to the holders of the Class A Interest ("SENIOR
UNITS");
(ii) on a parity with the Class A Interest, as to the payment
of periodic distributions and as to distribution of assets upon
liquidation, dissolution or winding up, whether or not the
distribution rates, payment dates or redemption or liquidation
prices per share thereof be different from those of the Class A
Interest, if the holders of such class of stock or series and
the Class A Interest shall be entitled to the receipt of
periodic distributions and of amounts distributable upon
liquidation, dissolution or winding up in proportion to their
respective amounts of accrued and unpaid distributions per
share or liquidation preferences, without preference or
priority of one over the other ("PARITY UNITS"); and
(iii) junior to the Class A Interest, as to the payment of
periodic distributions or as to the distribution of assets upon
liquidation, dissolution or winding up, if such class or series
shall be Units or if the holder of the Class A Interest shall
be entitled to receipt of periodic 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 (the "JUNIOR UNITS").
(b) The Class A Interest is prior in right and senior to the
Class B Interest as to the payment of periodic distributions
and as to distribution of assets upon liquidation, dissolution
or winding up.
Section 10.08. VOTING RIGHTS.
(a) GENERAL. Except as set forth below, the holders of the
Class A Interest shall vote together with the other Limited
Partners as a single class, provided, however, that any portion
of the Class A Interest held by an Affiliated Person, will not
have any voting rights, except as set forth below.
(b) CERTAIN VOTING RIGHTS. So long as any portion of the Class
A Interests remain outstanding, the Partnership shall not,
without the affirmative vote of the holders of at least a
majority in interest of the Class A Interest outstanding at the
time (i) designate or create, or increase the authorized or
issued amount of any class or series of Senior Units or
reclassify any authorized interests in the Partnership into any
such class or series, or create, authorize or issue any
obligations or security convertible into or evidencing the
right to purchase any such class of series of Senior Units,
(ii) designate or create, or increase the authorized or issued
amount of, any class or series of Parity Units or reclassify
any authorized interests in the Partnership into any such class
or series, or create, authorize or issue any obligations or
security convertible into or evidencing the right to purchase
any such class or series, 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 this Article X), whether by
merger, consolidation or otherwise, in each case that would
materially and adversely affect the powers, special rights,
preferences, privileges or voting power of the Class A Interest
or the holders thereof; provided, however, that with respect to
the occurrence of a merger, consolidation or a sale or lease of
all of the Partnership's assets as an entirety, so long as
(a) the Partnership or the General Partner is the surviving
entity and the Class A Interest or a Convertible Units remains
outstanding with the terms thereof unchanged, or (b) the
resulting, surviving or transferee entity is a corporation,
partnership or similar entity organized under the laws of any
state and substitutes the Class A Interest for other preferred
securities having substantially the same terms and same rights
as the Class A Interest, 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
Class A Interest; provided, further, that any increase in the
amount of authorized preferred interest or the creation or
issuance of any other class or series of preferred interest, or
any increase in an amount or authorized number of each class or
series, in each case ranking either junior to the Class A
Interest with respect to payment of periodic distributions and
the distribution of assets upon liquidation, dissolution or
winding-up, shall not be deemed to materially and adversely
affect such rights, preferences, privileges or voting powers.
Section 10.09 LIQUIDATION, DISSOLUTION OR WINDING UP.
(a) Upon liquidation, dissolution, or winding up (voluntary or
otherwise) of the Partnership, the holders of Class A Interest
shall receive an amount equal to $35,000,000 multiplied by a
fraction, the numerator of which is the number of shares of
Series A Preferred Stock outstanding and the denominator of
which is 1,666,667, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared,
to the date of such payment (the "Series A Liquidation
Preference"). Following the payment of the full amount of the
Series A Liquidation Preference, and the capital adjustment in
respect of all outstanding preferred interests and Units,
respectively, shall receive their ratable and proportionate
share of the remaining assets to be distributed with respect to
such preferred interests and Units, on a per unit equivalent
basis, respectively.
(b) For purposes of this Section 10.09, a consolidation or a
merger of the Partnership with another entity wherein the
Partnership, the General Partner or an Affiliated Person is not
the surviving entity, or a sale of all or substantially all of
the Partnership's assets for cash or securities other than to
the General Partner or an Affiliated Person, will be considered
a liquidation of the Partnership.
Section 10.10. REDEMPTION OF THE CLASS A INTEREST
(a) The Class A Interest is not redeemable by the Partnership
prior to December 30, 2006. On and after December 30, 2006,
the Partnership, upon not less than 20 Business Days written
notice, shall redeem, in whole but not in part, the remaining
Class A Interest to the extent that the General Partner redeems
shares of the Series A Preferred Stock that have not yet been
converted into Common Stock, at a redemption price per share
equal to $35,000,000 multiplied by a fraction, the numerator of
which is the number of shares of Series A Preferred Stock then
outstanding and the denominator of which is 1,666,667 plus an
amount equal to accrued and unpaid distributions thereon,
whether or not declared, to the date of such redemption.
Within 10 Business Days prior to such redemption, the General
Partner shall notify the holders of the Class A Interest as to
whether any holders of the Series A Preferred Stock plan to
exercise their right under the Articles Supplementary to
convert such remaining shares of Series A Preferred Stock into
Common Stock prior to the redemption of the Series A Preferred
Stock. If the holders of the Series A Preferred Stock do not
so exercise their Conversion Right and, accordingly, none of
the Class A Interest is converted into Conversion Units as
provided in Section 10.06, then upon payment of the Redemption
Price, all of the rights of the holders of the Class A Interest
under this Partnership Agreement shall terminate.
(b) Unless full cumulative distributions on all shares of
Senior Units and Parity Units shall have been or
contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for payment for
all past distribution periods and the then current distribution
period, none of the Class A Interest, any other Senior Units or
any Parity Units shall be redeemed unless all of the Class A
Interest, other Senior Units and Parity Units are
simultaneously redeemed. Furthermore, unless full cumulative
distributions on any outstanding Class A Interest, other Senior
Units and Parity Units have been or contemporaneously are
declared and paid or declared and a sum sufficient for the
payment thereof set apart for payment for all past distribution
periods and the then current distribution period, neither the
Partnership nor the General Partner shall purchase or otherwise
acquire, directly or indirectly, the Class A Interest, any
other Senior Units or any Parity Units (except by conversion
into or exchange for shares of Junior Units).
(c) The Class A Interest will not be subject to any sinking
fund or mandatory redemption.
Section 10.11 TRANSFER RIGHTS. The Class A Interest shall
not be transferred by the QRS in whole or in part except to the
General Partner or any Affiliated Person (which is not an
individual). Upon receipt of a duly executed assignment of
Class A Interest to such a permitted transferee, the General
Partner shall execute an amendment to this Partnership
Agreement adding the name or names of such Persons to Schedule
A and the assignee shall be admitted to the Partnership as an
Additional Limited Partner.
4. Entire Agreement. This Amendment, the Partnership
Agreement, the Articles Supplementary and the Exchange
Agreement contain the entire agreement between the parties with
respect to the matters contained herein, and supersede all
negotiations, agreements, representations, warranties,
commitments, whether in writing or oral, prior to the date
hereof.
5. Execution and Counterparts. This Amendment may be executed
in any number of counterparts, each of which when so executed
and delivered shall be deemed an original, and such
counterparts together shall constitute one instrument. Each
party shall receive a duplicate original of the counterpart
copy or copies executed by it and by the General Partner.
6. Full Force and Effect. Except as expressly set forth in
this Amendment the Partnership Agreement shall continue in full
force and effect as written and shall be enforceable against
the parties thereto in accordance with its terms except as
amended hereby.
IN WITNESS WHEREOF, this Amendment No. 27 to the Second
Amended and Restated Agreement of Limited Partnership of Home
Properties of New York, L.P. is hereby executed on the dates
set forth below to be effective as of the date first above
written.
Date: December 22, 1999 GENERAL PARTNER
HOME PROPERTIES OF NEW YORK, INC.
By:/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Its: Chairman
WITHDRAWING CLASS A LIMITED
PARTNER
Date: December 22, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇, CUSTODIAN OF MICHIGAN PUBLIC SCHOOL EMPLOYEES'
RETIREMENT SYSTEM, STATE EMPLOYEES' RETIREMENT SYSTEM, MICHIGAN
STATE POLICE RETIREMENT SYSTEM AND MICHIGAN JUDGES' RETIREMENT
SYSTEM
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Administrator
NEW CLASS A LIMITED PARTNER
HOME PROPERTIES TRUST
Date: December 22, 1999
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
Date: December __, 1999 LIMITED PARTNERS LISTED ON ATTACHED SCHEDULE A:
By: Home Properties of New York, Inc.,
as attorney-in-fact
By: ___________________
Title: __________________