SECOND AMENDMENT
TO
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
PRICE DEVELOPMENT COMPANY, LIMITED PARTNERSHIP
THIS SECOND AMENDMENT, dated July 28, 1999 (the "AMENDMENT"), to
the Second Amended and Restated Agreement of Limited Partnership, dated
July 15, 1999 (the "PARTNERSHIP AGREEMENT"), is entered into by JP REALTY,
INC., as general partner (the "GENERAL PARTNER") of PRICE DEVELOPMENT
COMPANY, LIMITED PARTNERSHIP (the "PARTNERSHIP"), for itself and on behalf
of the limited partners of the Partnership, and BELAIR REAL ESTATE
CORPORATION ("Belair") and BELCREST REALTY CORPORATION ("Belcrest").
Capitalized terms used but not otherwise defined in this Amendment shall
have the same meanings ascribed to them as in the Partnership Agreement.
W I T N E S S E T H:
WHEREAS, Section 4.2A of the Partnership Agreement authorizes the
General Partner to cause the Partnership to issue additional Partnership
Units in one or more classes or series, with such rights, preferences,
exchange rights, voting powers and restrictions, limitations as to
distributions, qualifications and terms and conditions as shall be
determined by the General Partner, subject to the provisions of such
section; and
WHEREAS, pursuant to the authority granted to the General Partner
pursuant to Sections 4.2A and 4.2B of the Partnership Agreement, the
General Partner desires to amend the Partnership Agreement (i) to establish
a new class of Partnership Units, the Series B Preferred Units (as
hereinafter defined), and to set forth the rights, preferences, exchange
rights, voting powers and restrictions, limitations as to distributions,
qualifications and terms and conditions of such Series B Preferred Units,
and (ii) to issue the Series B Preferred Units to Belair and Belcrest and
admit Belair and Belcrest as Additional Limited Partners.
NOW, THEREFORE, in consideration of good and valuable
consideration, the receipt and sufficiency of which hereby are
acknowledged, the General Partner hereby amends the Partnership Agreement
as follows:
1. ISSUANCE OF PREFERRED UNITS. Pursuant to Section 4.2A of
the Partnership Agreement, the Partnership hereby designates a new series
for Preferred Units as 8.95% Series B Cumulative Redeemable Preferred Units
(the "SERIES B PREFERRED UNITS"), with a liquidation preference of $25.00
per Series B Preferred Unit, and the Series B Preferred Units shall have
the rights, preferences, exchange rights, voting powers and restrictions,
limitations as to distributions, qualifications and terms and conditions
specified in the Partnership Unit
Designation attached as SCHEDULE A to this Amendment (which schedule shall
be titled Schedule B when attached to the Partnership Agreement). The
number of Series B Preferred Units shall be 3,800,000.
2. ADMISSION OF LIMITED PARTNERS. In accordance with Section
12.2 of the Partnership Agreement, Belair and Belcrest are hereby admitted
as Additional Limited Partners.
3. SCHEDULE OF PARTNERS. The Schedule of Partners which is set
forth on EXHIBIT A to the Partnership Agreement is hereby deleted in its
entirety and replaced by the Schedule of Partners on EXHIBIT A attached to
this Amendment.
4. RATIFICATION. Except as expressly modified by this
Amendment, all of the provisions of the Partnership Agreement are hereby
affirmed and ratified and remain in full force and effect.
* * *
IN WITNESS WHEREOF, this Amendment has been duly executed by the
General Partner on behalf of the Partnership and the admitted Limited
Partner as of the day and year first set forth above.
JP REALTY, INC.
By: /s/ G. ▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Name: G. ▇▇▇ ▇▇▇▇▇▇▇
Title: President
BELCREST REALTY CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Vice President
BELAIR REAL ESTATE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Vice President
SCHEDULE A
TERMS OF 8.95% SERIES B CUMULATIVE REDEEMABLE PREFERRED UNITS
SECTION 1. DEFINITIONS. Capitalized terms that are used herein
shall have the same meaning as set forth in the foregoing Second Amendment
(the "AMENDMENT") to the Second Amended and Restated Agreement of Limited
Partnership of Price Development Company, Limited Partnership (the
"PARTNERSHIP AGREEMENT") or as otherwise set forth below:
(a) "AFFILIATE" means, 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.
(b) "CHARTER" means the Article of Amendment and Restatement of the
Company, dated as of November 19, 1993, as supplemented by those certain
Article Supplementary filed with the Maryland State Department of
Assessments and Taxation (the "DEPARTMENT") on April 23, 1999 and July 28,
1999, and as further amended, supplemented or corrected from time to time.
(c) "PARITY PREFERRED UNITS" means the existing Series A Preferred
Units and any class or series of Partnership Interests of the Partnership
now or hereafter authorized, issued or outstanding and expressly designated
by the Partnership to rank on a parity with the 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.
(d) "SERIES B PRIORITY RETURN" means an amount, payable in U.S.
dollars, equal to 8.95% per annum of the original capital contribution
($25.00) per Series B Preferred Unit commencing on the date of issuance of
such Series B Preferred Unit, determined on the basis of a 360-day year of
twelve 30-day months and cumulative to the extent not distributed on any
Series B Preferred Unit Distribution Payment Date (as hereinafter defined).
(e) "PTP" means a "publicly traded partnership" within the meaning of
Section 7704 of the Internal Revenue Code of 1986, as amended.
(f) "SUBSIDIARY" means, with respect to any Person, any corporation,
partnership, limited liability company, joint venture or other entity of
which a majority of (i) voting power of the voting equity securities or
(ii) the outstanding equity interests, is owned, directly or indirectly, by
such person.
SECTION 2. DESIGNATION AND NUMBER. Pursuant to Section 4.2A of
the Partnership Agreement, the Partnership hereby designated a new series
of Preferred Units as 8.95% Series B Cumulative Redeemable Preferred Units
(the "SERIES B PREFERRED UNITS"), with a liquidation preference of $25.00
per Series B Preferred Unit, and the Series B Preferred Units shall have
the rights, preferences, exchange rights, voting powers and restrictions,
limitations as
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to distributions, qualifications and terms and conditions
set forth in this SCHEDULE A to the Amendment. The number of Series B
Preferred Units shall be 3,800,000.
SECTION 3. DISTRIBUTIONS. (a) PAYMENT OF DISTRIBUTIONS.
Notwithstanding anything to the contrary contained in Section 5.1 of the
Partnership Agreement, but subject to the rights of holders of Parity
Preferred Units as to the payment of distributions, established pursuant to
Section 4.2 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, the Series B Priority
Return. Such distributions shall be cumulative, shall accrue form the
original date of issuance and will be payable (i) quarterly in arrears, on
March 31, June 30, September 30 and December 31 of each year commencing on
September 30, 1999 and (ii) in the event of (A) an exchange for Series B
Preferred Units into Series B Preferred Stock, 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 PAYMENT DATE").
The amount of the distribution payable for any period will be 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 based on the ratio
of the actual number or days elapsed in such period to ninety (90) days.
If any Series B Preferred Unit Distribution Date is not a Business Day (as
hereinafter defined), 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 relevant record dates to be fixed by
the Partnership acting through the General Partner, which record dates
shall in no event exceed 15 Business Days prior to the relevant Series B
Preferred Unit Distribution Payment Date (the "PREFERRED UNIT PARTNERSHIP
RECORD DATE").
The term "Business Day" shall mean each day, other than a Saturday or
a 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 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 indebtedness, prohibits 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. Notwithstanding the foregoing,
distributions on the Series B Preferred Units will accrue whether or not
the terms and provisions of any agreement of
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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 by 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 15 Business 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 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 of the Partnership
ranking junior to the Series B Preferred Units as to the payment of
distributions or rights upon a voluntary or involuntary liquidation,
dissolution or winding-up of the Partnership (collectively, "JUNIOR
UNITS"), nor shall any cash or other property be set aside for or applied
to the purchase, redemption or other acquisition for consideration of any
Series B Preferred Units, any Parity Preferred Units or any Junior Units,
unless, in each case, all distributions accumulated on all Series B
Preferred Units and all classes and series or 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 of the
Partnership ranking junior to the Series B Preferred Units as to
distributions, or (c) the redemption of Partnership Interests corresponding
to any Series B Preferred Stock, Parity Preferred Stock with respect to
distributions or Junior Stock to be purchased by the General Partner
pursuant to Article NINTH 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 NINTH 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 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.
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(e) NO FURTHER RIGHTS. Holders of Series B Preferred Units shall not
be entitled to any distributions, whether payable in cash, other property
or otherwise, in excess of the full cumulative distributions described
herein.
SECTION 4. The following paragraph shall be applied in
conjunction with Section 6.2H of the Partnership Agreement:
The allocation of gross income to the Series B Preferred Units
pursuant to Section 6.2H for any Partnership Year shall be
limited to the excess, if any, of Profits over Losses for all
Partnership Years since the issuance of the Series B Preferred
Units (calculated solely for this purpose as is Section 6.2H were
not part of the Partnership Agreement and without regard to
Depreciation). In addition, for purposes of making allocations
to the Series B Preferred Units with respect to Section 6.2H(B),
the amount of gross income to be allocated to a Series B
Preferred Unit (subject to the limitation contained in the prior
sentence) shall equal the portion of the distributions to be made
pursuant to a redemption of such Series B Preferred Unit that
exceeds the capital contribution that was made with respect to
such Series B Preferred Unit.
SECTION 5. LIQUIDATION PROCEEDS. (a) Subject to the rights of
holders of Parity Preferred Units with respect to rights upon any voluntary
or involuntary liquidation, dissolution or winding-up of the Partnership,
each holder 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
such holder's original capital contribution plus the cumulative (to the
date of payment) unpaid Series B Priority Return; PROVIDED, HOWEVER, that
in no event shall such amount exceed such holder's Capital Account on the
date of distribution. If, upon such voluntary or involuntary liquidation,
dissolution or winding-up, there are insufficient assets to permit full
payment of liquidating distributions to the holders of Series B Preferred
Units and any Parity Preferred Units as to rights upon liquidation,
dissolution or winding-up of the Partnership, all payments of liquidating
distributions on the Series B Preferred Units and any Parity Preferred
Units shall be made so that the payments on the Series B Preferred Units
and such Parity Preferred Units shall in all cases bear to each other the
same ratio that the respective rights of the Series B Preferred Units and
such other Parity Preferred Units (which shall not include any accumulation
in respect of unpaid distributions for prior distribution periods if such
Parity Preferred Units do not have cumulative distribution rights) upon
liquidation, dissolution or winding-up of the Partnership bear to each
other.
(b) NOTICE. Written notice of any such voluntary or involuntary
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
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given by (i) fax and (ii) by first class mail, postage pre-paid, not less
than 30 and not more than 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 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.
(d) CONSOLIDATION, MERGER OR CERTAIN OTHER TRANSACTIONS. The
voluntary 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 to, or the consolidation or
merger or other business combination of the Partnership with or into, any
corporation, trust, partnership, limited liability company or other entity
(or of any corporation, trust, partnership, limited liability company or
other entity with or into the Partnership) shall not be deemed to
constitute a liquidation, dissolution or winding-up of the Partnership.
SECTION 6. OPTIONAL REDEMPTION. (a) RIGHT OF OPTIONAL
REDEMPTION. The Series B Preferred Units may not be redeemed prior to July
29, 2004. 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, payable in cash, equal to the original
capital contribution of such holder plus the cumulative Series B Priority
Return, whether or not declared, to the redemption date to the extent not
previously distributed (the "Series B Redemption Price"), which such amount
is intended to equal the Capital Account balance of such redeemed Series B
Preferred Unit. 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 Series B Redemption Price
(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, 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
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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, and (B) mailed by the Partnership, by certified mail, postage
prepaid, not less than 30 or 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 proceeding 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: (1) the redemption date, (2) the Series B Redemption
Price, (3) the aggregate number or 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 that such holder's number of Series B Preferred Units
bears to the aggregate number of outstanding Series B Preferred Units) of
the aggregate number of Series B Preferred Units to be redeemed, (4) the
place or places where such Series B Preferred Units are to be surrendered
for payment of the Series B Redemption Price, (5) that distributions on the
Series B Preferred Units to be redeemed will cease to accumulate on such
redemption ate and (6) that payment of the Series B 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 Series B
Redemption Price and will give irrevocable instructions and authority to
pay such Series B 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 evidence 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 Series B Redemption Price payable 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 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
Series B 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
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original redemption date to the date of
payment, in which case the actual payment date will be considered the date
fixed for redemption for purpose of calculating the applicable Series B
Redemption Price.
SECTION 7. VOTING RIGHTS. (a) GENERAL. Holders of the Series B
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 7.3, 14.1C or 14.2 of the Partnership Agreement and
except as set forth below.
(b) CERTAIN VOTING RIGHTS. So long as any Series B Preferred Units
remain 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 senior to
the Series B Preferred Units with respect to payment of distributions or
rights upon liquidation, dissolution or winding-up or reclassify any
existing Partnership Interests of the Partnership into any such senior
Partnership Interest, or create, authorize or issue any obligations or
security convertible into or evidencing the right to purchase any such
senior Partnership Interests; (ii) authorize or create, or increase the
authorized or issued amount of any Parity Preferred Units or reclassify any
existing 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 Interest, but only to
the extent such Parity Preferred Units are issued to an Affiliate of the
Partnership, other than the General Partner to the extent the issuance of
such interest was to allow the General Partner to issue corresponding
preferred stock to persons who are not Affiliates of the Partnership; 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, whether by merger, consolidation or otherwise, 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
merger, consolidation or a sale or lease of all of the Partnership's assets
as an entirety, so long as (1) 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
further that any increase in the amount of Partnership Interest or the
creation or issuance of any other class or series of Partnership Interests,
in each case ranking (y) junior to the Series B Preferred Units with
respect to payment of distributions and the distribution of assets upon
liquidation, dissolution or winding-up, or (z) on a parity with the Series
B Preferred Units with respect to payment of distributions and the
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distribution of assets upon liquidation, dissolution or winding-up but only
to the extent such Partnership Interest not issued to an Affiliate of the
Partnership, other than the General Partner to the extent the issuance of
such interests was to allow the General Partner to issue corresponding
preferred stock to persons who are not Affiliates of the Partnership, shall
not be deemed to materially and adversely affect such rights, preferences,
privileges or voting powers. In the event of any conflict between the
provisions of Article 14 of the Partnership Agreement and the provisions of
this Section 7, the provisions of the Section 7 shall control.
SECTION 8. TRANSFER RESTRICTIONS. The Series B Preferred Units
shall be subject to the provisions of Article 11 of the Partnership
Agreement. For purposes of the Series B Preferred Units, Article 11 is
hereby supplemented as follows:
"11.7 Notwithstanding anything to the contrary contained in
Article 11 hereof, (i) a transfer of all or any portion of the Series
A Preferred Units or Series B Preferred Units shall not require the
consent of the General Partner; (ii) the transferee of such transfer
shall be admitted to the Partnership as a Limited Partner on the
closing date of such transfer; (iii) the Partnership and the General
Partner shall treat such transferee as the absolute owner of the
interest transferred in all respects; and (iv) the General Partner
shall not have the right to require any transferor or transferee of
such Series A Preferred Units or Series B Preferred Units to have such
Series A Preferred Units or Series B Preferred Units redeemed;
provided, that the foregoing shall not apply to (x) a transfer in
violation of Section 11.3C hereof, (y) a transfer that would create a
risk that the Partnership would fail to qualify for the private
placement or lack of actual trading safe harbor of Notice 88-75 or
Treasury Regulation 1.7704-1, and (z) a transfer to any
Person that is a competitor (as reasonably determined by the General
Partner) of the General Partner.
SECTION 9. EXCHANGE RIGHTS (a) RIGHT TO EXCHANGE. (i) Subject
in all cases to the ownership limitations set forth in the Charter, Series B
Preferred Units will be exchangeable in whole or in part at any time on or after
the tenth anniversary of the date of issuance, at the option of the holders
thereof, for authorized but previously unissued shares of 8.95% Series B
Cumulative Redeemable Preferred Stock of the General Partner (the "SERIES B
PREFERRED STOCK") at an exchange rate of one share of Series B Preferred
Stock for one Series B Preferred Unit, subject to adjustment as described below
(the "SERIES B EXCHANGE PRICE"); provided that the Series B Preferred Units
will become exchangeable at any time, in whole or in part, at the option of the
holders of Series B Preferred Units for Series B Preferred Stock if (x) at any
time full distributions shall not have been timely made on any Series B
Preferred Unit with respect to six 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 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 (y) upon receipt by a holder or holders of Series B Preferred Units of
(1) notice from the General Partner that the General Partner or a Subsidiary of
the General
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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. In
addition, the Series B Preferred Units may be exchanged for Series B Preferred
Stock, in whole or in part, at the option of any holder prior to the
tenth anniversary of the issuance date and after the third anniversary thereof
if such holder of Series B Preferred Units shall deliver to the General
Partner either (i) a private letter ruling 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 Code for purposes of determining whether the holder of 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. Furthermore, the Series B Preferred Units may be exchanged in whole
but not in part by any holder thereof which is a real estate investment
trust within the meaning of Sections 856 through 859 of the Code for Series
B Preferred Stock (but only if the exchange in whole may be accomplished
consistently with the ownership limitations set forth under Article NINTH
of the Charter of the General Partner (taking into account exceptions
thereto)) if at any time, (i) the Partnership reasonably determines that
the assets an 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 such holder of Series B Preferred Units
shall deliver to the Partnership and the General Partner an opinion of
independent counsel reasonably acceptable to the General Partner 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) hereof, if any Exchange Notice (as defined herein) 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) hereof by giving each
holder of record of Series B Preferred Units notice of its election to
redeem for cash, within ten 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
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shall be no later than 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 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 or 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) If an exchange of all or a portion of Series B Preferred Units
pursuant to SECTION 9 (A)(I) hereof would violate the provisions on
ownership limitation of the General Partner set forth in Article NINTH of
the Charter 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 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 NINTH
of the Charter and any Series B Preferred Units not so exchanged (the
"EXCESS UNITS") shall be redeemed by the Partnership for cash in an amount
equal to the original capital contribution per Series B Preferred Unit
being redeemed plus any accrued and unpaid Series B Priority Return,
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 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. In the event an
exchange would result in Excess Units, as a condition to such exchange,
each holder of such units agrees to provide representations and covenants
reasonable requested by the General Partner relating to (1) the widely held
nature of the interests in such holder, sufficient to assure the General
Partner that the holder's ownership of stock of the General Partner
(without regard to the limits described above) will not cause any
individual to beneficially own the stock of the General Partner in excess
of the amounts provided in Article NINTH of the Charter (taking into
account the provisions of the Articles Supplementary); and (2) to the
extent such holder can so represent and covenant without obtaining
information from its owners, the holder's ownership of tenants of the
Partnership and its Affiliates.
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(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, that the term "redemption price" in such
Section shall be read to mean the original capital contribution per Series
B P referred Unit being redeemed plus all accrued and unpaid distributions
to the redemption date.
(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. The exchange of Series B
Preferred Units, or a specified portion thereof, may be effected after the
fifth (5{th}) Business Day following receipt by the General Partner of the
Exchange Notice by delivering certificates, if any, representing such
Series B Preferred Units to be exchanged together with, if applicable,
written notice of exchange and a proper assignment of such Series B
Preferred Units to the office of the General Partner maintained for such
purpose. Currently, such office is ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇-▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇. Each exchange will be deemed to have been effected immediately
prior to the close of business on the date on which such Series B Preferred
Units to be exchange (together with all required documentation) shall have
been surrendered and notice shall have been received by the General Partner
as aforesaid and the Exchange Price shall have been paid. Any shares of
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 and relevant state securities or blue sky laws.
(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 A 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 no holding such Series B Preferred
Unit), receive a cash distribution from the Partnership, if such holder,
after exchange, is entitled to receive a distribution 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 A 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.
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(c) ADJUSTMENT OF SERIES B EXCHANGE PRICE. (i) The Series B Exchange
Price is subject to adjustment upon certain events, including, (A)
subdivisions, combinations and reclassification of the Series B Preferred
Stock, and (B) distribution to all holders of Series B Preferred Stock of
evidence 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 the
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.
(d) The exchange rights set forth in the SECTION 9 are provided to
the holders of the Series B Preferred Units in lieu of any other exchange
rights in respect of Partnership Units set forth in the Partnership
Agreement or in the Exchange Agreement. In addition, so long as either
Contributor, or any of their permitted successors or assigns, hold any
Series B Preferred Units, the Company shall not, without the affirmative
vote of the holders of at least two-thirds of the Series B Preferred Units
outstanding at the time: (a) designate or create, or increase the
authorized or issued amount of, any class or series of shares ranking prior
to the Series B Preferred Shares with respect to the payment of
distributions or rights upon liquidation, dissolution or winding-up or
reclassify any authorized shares of the Company into any such shares, or
create, authorize or issue any obligations or security convertible into or
evidencing the right to purchase any such shares; (b) designate or create,
or increase the authorized or issued amount of, any Parity Preferred Shares
or reclassify any authorized shares of the Company into any such shares, or
create, authorize or issue any obligations or security convertible into or
evidencing the right to purchase any such shares, but only to the extent
that such Parity Preferred Shares are issued to an Affiliate of the
Company; (c) amend, alter or repeal the provisions of the Charter or By-
Laws of the Company, whether by merger, consolidation or otherwise, that
would materially and adversely affect the powers, special rights,
preferences, privileges or voting power of the Series B Preferred Shares or
the holders of the Series B Preferred Shares or the Series B Preferred
Units; PROVIDED, HOWEVER, that any increase in the amount of authorized
preferred shares of beneficial interest of the Company ("PREFERRED SHARES")
or the creation or issuance of any other series or class of Preferred
Shares, or any increase in the amount of authorized shares of each class or
series, in each case ranking either (1) junior to the Series B Preferred
Shares with
A-12
respect to the payment of distributions and the distribution of assets upon
liquidation, dissolution or winding-up, or (2) on a parity with the Series
B Preferred Shares with respect to the payment of distributions or the
distribution of assets upon liquidation, dissolution or winding-up to the
extent such Preferred Shares are not issued to an Affiliate of the Company,
shall not be deemed to materially and adversely affect such rights,
preferences, privileges or voting powers.
SECTION 10. NO CONVERSION RIGHTS. Except as set forth in Section
9, the holders of the Series B Preferred Units shall not have any rights to
convert such units 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 by deleting EXHIBIT A
thereto and replacing EXHIBIT A attached hereto therefor.
A-13
Exhibit A to Schedule A
EXHIBIT A
PARTNERS AND PARTNERSHIP INTERESTS
Partnership Percentage
Name of Partner Units Interest
------------------------------------------------------------------------------------------------
GENERAL PARTNER
JP Realty, Inc.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇-▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ 17,640,747 82.74871%
LIMITED PARTNERS
Boise Mall Investment Company, Ltd. 824,411 3.86712%
▇▇▇▇▇, ▇▇▇▇ 125 0.00059%
▇▇▇▇▇, ▇▇▇▇▇ 320 0.00150%
Cache Valley Mall Partnership, Ltd. 328,813 1.54239%
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ 100 0.00047%
▇▇▇▇▇▇▇, ▇▇▇ 100 0.00047%
▇▇▇▇▇▇▇, ▇▇▇▇▇ 35,460 0.16633%
▇▇▇▇▇▇▇, ▇▇▇▇ 765 0.00359%
▇▇▇▇▇▇▇, ▇▇▇▇▇ 1,531 0.00718%
▇▇▇▇▇▇, ▇▇▇▇ 24 0.00011%
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ 125 0.00059%
East Ridge Partnership 100 0.00047%
▇▇▇▇▇▇, ▇▇▇▇ 320 0.00150%
Fairfax Holding, LLC 786,226 3.68801%
▇▇▇▇▇, ▇▇▇▇ 5,486 0.02573%
▇▇▇▇▇▇▇, G. Rex 3,680 0.01726%
▇▇▇▇, ▇▇▇▇▇▇▇ 6,817 0.03198%
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ 100 0.00047%
Hall Investment Company 10,204 0.04786%
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ 5,102 0.02393%
JCP Realty, Inc. 350,460 1.64393%
KFC Advertising 5,487 0.02574%
▇▇▇▇▇▇, ▇▇▇▇ 125 0.00059%
▇▇▇▇▇▇, ▇▇▇▇ 25 0.00012%
King American Hospital, Ltd. 63,424 0.29751%
King Provo, Ltd. 64,872 0.30430%
▇▇▇▇, ▇▇▇▇▇▇ ▇. 6,244 0.02929%
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. 214 0.00100%
▇▇▇▇▇▇, ▇▇▇ 100 0.00047%
North Plains Development Company, Ltd. 19,033 0.08928%
North Plains Land Company, Ltd. 1,758 0.00825%
▇▇▇▇▇, ▇▇▇▇ 1,894 0.00888%
▇▇▇▇▇, ▇▇▇▇▇ 125 0.00059%
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. 692 0.00325%
Pine Ridge Development Company, Ltd. 77,641 0.36420%
Pine Ridge Land Company, Ltd. 5,176 0.02428%
▇▇▇▇▇, ▇▇▇▇ 200 0.00094%
▇▇▇▇▇, ▇▇▇▇▇▇ 350 0.00164%
EX.A-1
Partnership Percentage
Name of Partner Units Interest
------------------------------------------------------------------------------------------------
Price 800 Company, Ltd. 156,615 0.73465%
Price Commerce, Ltd. 63,423 0.29750%
Price East Bay, Ltd. 37,157 0.17430%
Price ▇▇▇▇▇▇ ▇▇▇▇▇▇ Company, Ltd. 17,497 0.08207%
Price Fremont Company, Ltd. 166,315 0.78015%
Price Glendale Company, Ltd. 3,935 0.01846%
Price Orem Investment Company, Ltd. 66,747 0.31309%
Price Plaza 800 Company, Ltd. 12,199 0.05722%
Price Riverside Company, Ltd. 10,983 0.05152%
Price Rock Springs Company, Ltd. 11,100 0.05207%
Price Taywin Company, Ltd. 106,381 0.49901%
▇▇▇▇▇, ▇▇▇▇▇▇ 100 0.00047%
Red Cliff Mall Investment Company 167,379 0.78514%
RMC Mall Corp. 41,518 0.19475%
Roebbelen Engineering 72,000 0.33774%
▇▇▇▇▇▇▇, ▇▇▇ 23,371 0.10963%
Taycor Ltd. 35,462 0.16634%
Tech Park II Company, Ltd. 4,929 0.02312%
▇▇▇▇▇▇▇, ▇▇▇▇ 150 0.00070%
▇▇▇▇, ▇▇▇▇ 160 0.00075%
▇▇▇▇▇▇▇, ▇▇▇▇▇ 35,460 0.16633%
▇▇▇▇▇▇▇, ▇▇▇▇ 5,102 0.02393%
▇▇▇▇▇▇▇, ▇▇▇ 5,306 0.02489%
▇▇▇▇▇▇▇, ▇▇▇▇ 10,000 0.04691%
YSP 16,787 0.07874%
Total 21,318,452 100.00000%
SSB Tax Advantaged Exchange Fund I, LLC 510,000 100.00000%{1}
Belcrest Realty Corporation 2,400,000 63.15789%{2}
Belair Real Estate Corporation 1,400,000 36.84211%{2}
3,800,000 100.00000%
___________________________
1. Represents all of the Series A Preferred Units issued by the Partnership.
2. Represents a percentage of the Series B Preferred Units issued by the
Partnership.
A-2