EXHIBIT 10.3
SIXTH AMENDMENT TO
THIRD AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
COLONIAL REALTY LIMITED PARTNERSHIP
THIS SIXTH AMENDMENT TO THIRD AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP OF COLONIAL REALTY LIMITED PARTNERSHIP (this "Sixth
Amendment" to the "Partnership Agreement"), dated as of April 30, 2003, is
entered into by Colonial Properties Trust, as general partner (the "General
Partner") of Colonial Realty Limited Partnership (the "Partnership"), for itself
and on behalf of the limited partners of the Partnership (the "Limited
Partners").
WHEREAS, Section 4.2.A 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 designations, preferences and
relative, participating, optional or other special rights, powers and duties as
shall be determined by the General Partner in its sole and absolute discretion,
subject to the condition that no such additional Partnership Units shall be
issued to the General Partner unless (i) the additional Partnership Units are
issued in connection with an issuance of shares by the General Partner, which
shares have designations, preferences and other rights, substantially similar to
the designations, preferences and other rights of the additional Partnership
Units issued to the General Partner and (ii) the General Partner makes a capital
contribution of an amount equal to the net proceeds raised in connection with
the issuance of such shares.
WHEREAS, General Partner has entered into an Underwriting
Agreement dated as of April 3, 2003, and a Terms Agreement dated as of April 3,
2003, pursuant to which Colonial Properties has agreed to issue up to 500,000
Series D Cumulative Redeemable Preferred Shares of Beneficial Interest, par
value $0.01 per share (the "Series D Preferred Shares"), of Colonial Properties;
WHEREAS, General Partner will make will make a capital
contribution to the Partnership of the proceeds from the issuance of the Series
D Preferred Shares in exchange for up to 500,000 Series D Preferred Units (as
defined below); and
WHEREAS, in connection with the issuance of the Series D
Preferred Shares and pursuant to the authority granted to the General Partner
pursuant to Section 4.2.A of the Partnership Agreement, the General Partner
desires to amend the Partnership Agreement to establish a new class of Units, to
be entitled Series D Cumulative Redeemable Preferred Units (the "Series D
Preferred Units"), and to set forth the designations, rights, powers,
preferences and duties of such Series D Preferred Units, which are substantially
the same as those of the Series D Preferred Shares.
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the General Partner hereby amends the Partnership Agreement, as
follows:
1. Section 4.2 of the Partnership Agreement is hereby
amended by adding after Section 4.2.G the following section:
H. Series D Preferred Units. Under the
authority granted to it by Section 4.2.A hereof, the General
Partner hereby establishes and designates as Preferred Units
an additional class of Partnership Units entitled "Series D
Cumulative Redeemable Preferred Units" (the "Series D
Preferred Units"). Series D Preferred Units shall have the
designations, preferences, rights, powers and duties as set
forth in Exhibit K hereto.
2. Exhibits to Partnership Agreement.
The Partnership Agreement is hereby amended by attaching
thereto as Exhibit K the Exhibit K attached hereto.
3. Certain Capitalized Terms. All capitalized terms used
in this Sixth Amendment and not otherwise defined shall have the meanings
assigned in the Partnership Agreement. Except as modified herein, all terms and
conditions of the Partnership Agreement shall remain in full force and effect,
which terms and conditions the General Partner hereby ratifies and affirms.
IN WITNESS WHEREOF, the undersigned has executed this Sixth
Amendment as of the date first set forth above.
COLONIAL PROPERTIES TRUST,
as General Partner of
Colonial Realty Limited Partnership
By: /s/ Xxxxxx X. Xxxxxx, Xx.
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Name: Xxxxxx X. Xxxxxx, Xx.
Title: Chief Financial Officer and Secretary
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EXHIBIT K
DESIGNATION OF THE PREFERENCES, RIGHTS, VOTING POWERS, RESTRICTIONS,
QUALIFICATIONS AND LIMITATIONS
OF THE
SERIES D PREFERRED UNITS
The Series D Preferred Units shall have the following
designations, preferences, rights, powers and duties:
(1) Certain Defined Terms. The following
capitalized terms used in this Exhibit K shall have the respective
meanings set forth below:
"Distribution Period" means quarterly periods commencing on or
about the first day of February, May, August and November of each year
and ending on and including the day preceding the first day of the next
succeeding Distribution Period (other than the initial Distribution
Period, which shall commence on April 30, 2003 and end on July 31,
2003, and other than the Distribution Period during which any Series D
Preferred Units shall be redeemed pursuant to Section 4, which shall
end on and include the date of such redemption).
"Fully Junior Units" shall mean the Common Units and any other
class or series of Partnership Units now or hereafter issued and
outstanding over which the Series D Preferred Units have a preference
or priority in both (i) the payment of distributions and (ii) the
distribution of assets on any liquidation, dissolution or winding up of
the Partnership.
"Junior Units" shall mean the Common Units and any other class
or series of Partnership Units now or hereafter issued and outstanding
over which the Series D Preferred Units have a preference or priority
in the payment of distributions or in the distribution of assets on any
liquidation, dissolution or winding up of the Partnership.
"Parity Units" has the meaning ascribed thereto in Section
6(B).
(2) Distributions.
(A) The General Partner, in its capacity as the holder of
the then outstanding Series D Preferred Units, shall be entitled to
receive out of funds legally available therefor, distributions payable
in cash at the rate of $20.3125 per Series D Preferred Unit per year,
payable in equal amounts of $5.078125 per unit quarterly in cash on the
last day of each January, April, July and October or, if not a Business
Day, the next succeeding Business Day beginning on July 31, 2003 (each
such day being hereafter called a "Quarterly Distribution Date").
Quarterly distributions on each Series D Preferred Unit shall begin to
accrue and shall be fully cumulative from April 30, 2003. Quarterly
distributions paid on the Series D Preferred Units in an amount less
than the total amount of such quarterly distributions at the time
accrued and payable on such Partnership Units shall be allocated pro
rata on a per unit basis among all such Series D Preferred Units.
Accrued and unpaid distributions for any past Distribution Periods may
be declared and paid at any time and for such interim periods, without
reference to any regular Quarterly Distribution Date, to the General
Partner, on such date as may be fixed by the General Partner for
payment of the corresponding distribution on the Series D Preferred
Shares. Any distribution made on the Series D Preferred Units shall
first be credited against the earliest accrued but unpaid distribution
due with respect to Series D Preferred Units which remains payable.
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(B) The amount of any quarterly distributions accrued on
any Series D Preferred Units at any Quarterly Distribution Date shall
be the amount of any unpaid quarterly distributions accumulated
thereon, to and including such Quarterly Distribution Date. The amount
of distribution for the initial Distribution Period and any other
Distribution Period on the Series D Preferred Units that represents
less than a full quarter of a year shall be computed on the basis of a
360-day year of twelve 30-day months. No interest, or sum of money in
lieu of interest, shall be payable in respect of any distribution
payment or payments on the Series D Preferred Units that may be in
arrears.
(C) So long as any Series D Preferred Units are
outstanding, no distributions, except as described in the immediately
following sentence, shall be paid or set apart for payment on any class
or series of Parity Units for any period unless full cumulative
distributions have been or contemporaneously are paid or declared and a
sum sufficient for the payment thereof set apart for such payment on
the Series D Preferred Units for all Distribution Periods terminating
on or prior to the distribution payment date for such class or series
of Parity Units. When distributions are not paid in full or a sum
sufficient for such payment is not set apart, as aforesaid, all
distributions payable or declared upon Series D Preferred Units and all
distributions payable or declared upon any other class or series of
Parity Units shall be declared or paid ratably in proportion to the
respective amounts of distributions accumulated and unpaid on the
Series D Preferred Units and accumulated and unpaid on such Parity
Units.
(D) So long as any Series D Preferred Units are
outstanding, no distributions (other than distributions paid solely in
Fully Junior Units or options, warrants or rights to subscribe for or
purchase Fully Junior Units) shall be declared or paid or set apart for
payment or other distribution shall be declared or made or set apart
for payment upon Junior Units, nor shall any Junior Units be redeemed,
purchased or otherwise acquired (other than a redemption, purchase or
other acquisition of Class A Units made for purposes of an employee
incentive or benefit plan of the General Partner 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 Units) by the
Partnership, directly or indirectly (except by conversion into or
exchange for Fully Junior Units), unless in each case (i) the full
cumulative distributions on all outstanding Series D Preferred Units
and any other Parity Units of the Partnership shall have been paid or
set apart for payment for all past Distribution Periods with respect to
the Series D Preferred Units and all past distribution periods with
respect to such Parity Units and (ii) sufficient funds shall have been
paid or declared and set apart for the payment of the distribution for
the current Distribution Period with respect to the Series D Preferred
Units and the current distribution period with respect to such Parity
Units.
(E) No distributions on the Series D Preferred Units
shall be paid or set apart for payment by the Partnership at such time
as the terms and provisions of any agreement of the General Partner or
the Partnership, including any agreement relating to indebtedness of
either of them, prohibits such declaration, payment, or setting apart
for payment or provides that such declaration, payment or setting apart
for payment would constitute a breach thereof or a default thereunder,
or if such declaration or payment shall be restricted or prohibited by
law.
(F) Except as provided herein, the Series D Preferred
Units shall not be entitled to participate in the earnings or assets of
the Partnership, and no interest, or sum of money in lieu of interest,
shall be payable in respect of any distribution or distributions on the
Series D Preferred Units which may be in arrears.
(3) Liquidation Preference.
(A) In the event of any liquidation, dissolution
or winding up of the Partnership, whether voluntary or involuntary,
before any payment or distribution of the assets of the Partnership
shall be made to or set apart for the holders of Junior Units, the
General Partner, in its capacity as holder of the Series D Preferred
Units, shall be entitled to receive Two Hundred and Fifty
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Dollars ($250.00) (the "Series D Liquidation Preference") per Series D
Preferred Unit plus an amount equal to all distributions accrued and
unpaid thereon to the date of final distribution to the General
Partner, in its capacity as such holder; but the General Partner, in
its capacity as the holder of Series D Preferred Units, shall not be
entitled to any further payment with respect to such Series D Preferred
Units. If, upon any such liquidation, dissolution or winding up of the
Partnership, the assets of the Partnership, or proceeds thereof,
distributable to the General Partner, in its capacity as the holder of
Series D Preferred Units, shall be insufficient to pay in full the
preferential amount aforesaid and liquidating payments on any other
class or series of Parity Units, then such assets, or the proceeds
thereof, shall be distributed among the General Partner, in its
capacity as the holder of such Series D Preferred Units, and the
holders of such other Parity Units ratably in accordance with the
respective amounts that would be payable on such Series D Preferred
Units and such other Parity Units if all amounts payable thereon were
paid in full. For the purposes of this Section 3, (x) a consolidation
or merger of the Partnership or the General Partner with one or more
partnerships, limited liability companies, corporations, real estate
investment trusts or other entities and (y) a sale, lease or conveyance
of all or substantially all of the Partnership's property or business
shall not be deemed to be a liquidation, dissolution or winding up,
voluntary or involuntary, of the Partnership.
(B) Subject to the rights of the holders of
Partnership Units of any series or class ranking on a parity with or
prior to the Series D Preferred Units upon any liquidation, dissolution
or winding up of the Partnership, after payment shall have been made in
full to the General Partner, in its capacity as the holder of the
Series D Preferred Units, as provided in this Section 3, any other
series or class or classes of Junior Units shall, subject to any
respective terms and provisions applying thereto, be entitled to
receive any and all assets remaining to be paid or distributed, and the
General Partner, in its capacity as the holder of the Series D
Preferred Units, shall not be entitled to share therein.
4. Redemption Right. In connection with a redemption by
the General Partner of any or all of the Series D Preferred Shares, the
Partnership shall provide cash to the General Partner for such purpose
which shall be equal to redemption price of the Series D Preferred
Shares to be redeemed and one Series D Preferred Unit shall be canceled
with respect to each Series D Preferred Share so redeemed. From and
after the date in which the Series D Preferred Shares are redeemed, the
Series D Preferred Units so canceled shall no longer be outstanding and
all rights hereunder, to distributions or otherwise, with respect to
such Series D Preferred Units shall cease
5. Conversion. The Series D Preferred Units are not
convertible into or exchangeable for any other property or securities
of the Partnership.
6. Ranking. Any class or series of Partnership Units
shall be deemed to rank:
(A) prior to the Series D Preferred Units as to
the payment of distributions and as to distribution of assets upon
liquidation, dissolution or winding up of the Partnership, if the
holders of such class or series of Partnership Units 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 Series D Preferred Units;
(B) on a parity with the Series D Preferred
Units as to the payment of distributions and as to the distribution of
assets upon liquidation, dissolution or winding up of the Partnership,
whether or not the distribution rates, distribution payment dates or
redemption or liquidation prices per Partnership Unit be different from
those of the Series D Preferred Units, if the holders of such class or
series of Partnership Units and the Series D 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
Unit or liquidation preferences, without preference or priority one
over the other ("Parity Units");
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(C) junior to the Series D Preferred Units as to
the payment of distributions or as to the distribution of assets upon
liquidation, dissolution or winding up of the Partnership, if such
class or series of Partnership Units shall be Junior Units; and
(D) junior to the Series D Preferred Units as to
the payment of distributions and as to the distribution of assets upon
liquidation, dissolution or winding up of the Partnership, if such
class or series of Partnership Units shall be Fully Junior Units.
7. Voting. Except as required by law, the General
Partner, in its capacity as the holder of the Series D Preferred Units,
shall not be entitled to vote at any meeting of the Partners or for any
other purpose or otherwise to participate in any action taken by the
Partnership or the Partners, or to receive notice of any meeting of the
Partners.
8. Restriction on Ownership. The Series D Preferred
Units shall be owned and held solely by the General Partner.
9. Allocations. Allocations of the Partnership's income,
gain, loss and deduction shall be allocated among holders of the Series
D Preferred Units in accordance with Article VI of the Agreement.
10. General. The rights of the General Partner, in its
capacity as the holder of the Series D Preferred Units, are in addition
to and not in limitation on any other rights or authority of the
General Partner, in any other capacity, under the Agreement. In
addition, nothing contained in this Exhibit K shall be deemed to limit
or otherwise restrict any rights or authority of the General Partner
under the Agreement, other than in its capacity as the holder of the
Series D Preferred Units.
* * * * *
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