AMENDMENT NO. 52 TO THE SECOND
AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF HOME PROPERTIES OF NEW YORK, L.P.
This AMENDMENT NO. 52 TO THE SECOND AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF HOME PROPERTIES OF NEW YORK, L.P., dated as of March 25,
2002 (this "Amendment") is being executed by Home Properties of New York, Inc.,
a Maryland corporation (the "General Partner"), as the general partner of Home
Properties of New York, L.P., a New York limited partnership (the
"Partnership"), pursuant to the authority conferred on the General Partner by
Section 9.10(b)(iii) of the Second Amended and Restated Agreement of Limited
Partnership of Home Properties of New York, L.P., dated as of September 23,
1997, as amended (the "Agreement"). Capitalized terms used, but not otherwise
defined herein, shall have the respective meanings ascribed thereto in the
Agreement.
WHEREAS, on March 21, 2002, the General Partner filed Articles
Supplementary amending its Charter to designate a classify 3,000,000 shares of
authorized but unissued shares of its preferred stock, par value $0.01 per
share, as shares of its Series F Cumulative Redeemable Preferred Stock (the
Series F Preferred Stock");
WHEREAS, in accordance with Section 3.04 of the Agreement, upon the
issuance of any such shares of Series F Preferred Stock, the General Partner
will contribute the net cash proceeds from such issuance to the QRS (as defined
in the Agreement), which will contribute such net proceeds to the Partnership in
exchange for a number of Partnership Preferred Units equal to the number of
shares of Series F Preferred Stock so issued, which Partnership Preferred Units
shall have designations, preferences and other rights, terms and provisions that
are substantially the same as the designations, preferences and other rights,
terms and provisions of the Series F Preferred Stock, except as otherwise set
forth herein; and
WHEREAS, pursuant to Section 3.03(a) of the Agreement, the General
Partner is authorized to determine the relative rights and powers of such
Partnership Preferred Units in its sole discretion.
NOW THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged:
1. The Agreement is hereby amended by the addition of a new exhibit,
entitled "Exhibit H", in the form attached hereto, which shall be attached and
made part of the Agreement.
2. Except as specifically amended hereby, the terms, covenants,
provisions and conditions of the Agreement shall remain unmodified and continue
in full force and effect and, except as amended hereby, all of the terms,
covenants, provisions and conditions of the Agreement are hereby ratified and
confirmed in all respects.
IN WITNESS WHEREOF, this Amendment has been executed as of the date
first written above.
GENERAL PARTNER
HOME PROPERTIES OF NEW YORK, INC.
By: /s/ Xxx X. XxXxxxxxx
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Name: Xxx X. XxXxxxxxx
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Title: Senior Vice President and General Counsel
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Exhibit H
PARTNERSHIP UNIT DESIGNATION OF THE
SERIES F PARTNERSHIP PREFERRED UNITS
OF HOME PROPERTIES OF NEW YORK, L.P.
1. Number of Units and Designation.
A class of Partnership Preferred Units is hereby designated as "Series
F Partnership Preferred Units," and the number of Partnership Preferred Units
constituting such series shall be 3,000,000.
2. Definitions.
For purposes of the Series F Partnership Preferred Units, the following
terms shall have the meanings indicated in this Section 2, and capitalized terms
used and not otherwise defined herein shall have the meanings assigned thereto
in the Agreement:
"Agreement" shall mean the Second Amended and Restated Agreement of
Limited Partnership of the Partnership, dated as of September 23, 1997,
as amended.
"Call Date" shall have the meaning set forth in paragraph (a) of
Section 5 of this Exhibit H.
"Common Stock" shall mean the Common Stock, $0.01 par value per share,
of the General Partner or such shares of the General Partner's capital
stock into which outstanding shares of Common Stock shall be
reclassified.
"Distribution Payment Date" shall mean any date on which cash dividends
are paid on all outstanding shares of the Series F Preferred Stock.
"Junior Partnership Units" shall have the meaning set forth in
paragraph (c) of Section 7 of this Exhibit H.
"Parity Partnership Units" shall have the meaning set forth in
paragraph (b) of Section 7 of this Exhibit H.
"Partnership" shall mean Home Properties of New York, L.P., a New York
limited partnership.
"Partnership Common Units" shall mean a fractional, undivided share of
the Partnership Interests of all Partners issued pursuant to Section
3.01 and 3.02 of the Agreement.
"Senior Partnership Units" shall have the meaning set forth in
paragraph (a) of Section 7 of this Exhibit H.
"Series F Articles Supplementary" means the Articles Supplementary to
the Amended and restated Articles of Incorporation of the General
Partner, dated March 18, 2002, designating the Series F Preferred
Stock.
"Series F Partnership Preferred Unit" means a Partnership Preferred
Unit with the designations, preferences and relative, participating,
optional or other special rights, powers and duties as are set forth in
this Exhibit H. It is the intention of the General Partner that each
Series F Partnership Preferred Unit shall be substantially the economic
equivalent of one share of Series F Preferred Stock.
"Series F Preferred Stock" means the Series F Cumulative Redeemable
Preferred Stock, par value $0.01 per share, of the General Partner,
with the preferences and other rights, voting powers, restrictions,
limitations as to dividends, qualifications and terms and conditions of
redemption set forth in the Series F Articles Supplementary.
3. Distributions.
On every Distribution Payment Date, the holders of Series F
Partnership Preferred Units shall be entitled to receive distributions payable
in cash in an amount per Series F Partnership Preferred Unit equal to the per
share dividend payable on the Series F Preferred Stock on such Distribution
Payment Date. Each such distribution shall be payable to the holders of record
of the Series F Partnership Preferred Units, as they appear on the records of
the Partnership at the close of business on the record date for the dividend
payable with respect to the Series F Preferred Stock on such Distribution
Payment Date. Holders of Series F Partnership Preferred Units shall not be
entitled to any distributions on the Series F Partnership Preferred Units,
whether payable in cash, property or stock, except as provided herein.
4. 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 Partnership (whether capital, surplus or otherwise) shall be
made to or set apart for the holders of Junior Partnership Units, the holders of
Series F Partnership Preferred Units shall be entitled to receive Twenty-Five
Dollars ($25) per Series F Partnership Preferred Unit (the "Liquidation
Preference"), plus an amount per Series F Partnership Preferred Unit equal to
all dividends (whether or not declared) accumulated, accrued and unpaid on one
share of Series F Preferred Stock to the date of final distribution to such
holders; but such holders shall not be entitled to any further payment. Until
the holders of the Series F Partnership Preferred Units have been paid the
Liquidation Preference in full, plus an amount equal to all dividends (whether
or not declared) accumulated, accrued and unpaid on the Series F Preferred Stock
to the date of final distribution to such holders, no payment shall be made to
any holder of Junior Partnership Units upon the liquidation, dissolution or
winding up of the Partnership. If, upon any liquidation, dissolution or winding
up of the Partnership, the assets of the Partnership, or proceeds thereof,
distributable among the holders of Series F Partnership Preferred Units shall be
insufficient to pay in full the preferential amount aforesaid and liquidating
payments on any Parity Partnership Units, then such assets, or the proceeds
thereof, shall be distributed among the holders of Series F Partnership
Preferred Units and any such Parity Partnership Units ratably in the same
proportion as the respective amounts that would be payable on such Series F
Partnership Preferred Units and any such other Parity Partnership Units if all
amounts payable thereon were paid in full. For the purposes of this Section 4,
(i) a consolidation or merger of the Partnership with one or more partnerships,
or (ii) a sale or transfer of all or substantially all of the Partnership's
assets shall not be deemed to be a liquidation, dissolution or winding up,
voluntary or involuntary, of the Partnership.
(b) Upon any liquidation, dissolution or winding up of the
Partnership, after payment shall have been made in full to the holders of Series
F Partnership Preferred Units and any Parity Partnership Units, as provided in
this Section 4, any other series or class or classes of Junior Partnership Units
shall, subject to the respective terms thereof, be entitled to receive any and
all assets remaining to be paid or distributed, and the holders of the Series F
Partnership Preferred Units and any Parity Partnership Units shall not be
entitled to share therein.
5. Redemption.
Series F Partnership Preferred Units shall be redeemable by the
Partnership as follows:
(a) At any time that the General Partner exercises its right
to redeem all or any of the shares of Series F Preferred Stock, the General
Partner shall cause the Partnership to redeem an equal number of Series F
Partnership Preferred Units, at a redemption price per Series F Partnership
Preferred Unit equal to the same price paid by the General Partner to redeem the
Series F Preferred Stock, and such price shall be paid in the same manner as
paid by the General Partner for the Series F Preferred Stock redeemed on the
same date as the date of redemption of the Series F Preferred Stock (the "Call
Date"), in the manner set forth herein; provided, however, that in the event of
a redemption of Series F Partnership Preferred Units, if the Call Date occurs
after a dividend record date for the Series F Preferred Stock and on or prior to
the related Distribution Payment Date, the distribution payable on such
Distribution Payment Date in respect of such Series F Partnership Preferred
Units called for redemption shall be payable on such Distribution Payment Date
to the holders of record of such Series F Partnership Preferred Units on the
applicable dividend record date, and shall not be payable as part of the
redemption price for such Series F Partnership Preferred Units.
(b) If the Partnership shall redeem Series F Partnership Preferred
Units pursuant to paragraph (a) of this Section 5, from and after the Call Date
(unless the Partnership shall fail to make available the amount of cash or other
forms of consideration necessary to effect such redemption), (i) except for
payment of the redemption price, the Partnership shall not make any further
distributions on the Series F Partnership Preferred Units so called for
redemption, (ii) said units shall no longer be deemed to be outstanding, and
(iii) all rights of the holders thereof as holders of Series F Partnership
Preferred Units of the Partnership shall cease except the rights to receive the
cash payable upon such redemption, without interest thereon; provided, however,
that if a Call Date occurs after a dividend record date for the Series F
Preferred Stock and on or prior to the related Distribution Payment Date, the
full distribution payable on such Distribution Payment Date in respect of such
Series F Partnership Preferred Units called for redemption shall be payable on
such Distribution Payment Date to the holders of record of such Series F
Partnership Preferred Units on the applicable dividend record date
notwithstanding the prior redemption of such Series F Partnership Preferred
Units. No interest shall accrue for the benefit of the holders of Series F
Partnership Preferred Units to be redeemed on any cash set aside by the
Partnership.
6. Status of Reacquired Units.
All Series F Partnership Preferred Units which shall have been issued
and reacquired in any manner by the Partnership shall be deemed canceled.
7. Ranking.
Any class or series of Partnership Units of the Partnership shall be
deemed to rank:
(a) prior or senior to the Series F Partnership Preferred
Units, as to the payment of distributions and as to distributions of assets upon
liquidation, dissolution or winding up, if the holders of such class or series
shall be entitled to the receipt of distributions and of amounts distributable
upon liquidation, dissolution or winding up, as the case may be, in preference
or priority to the holders of Series F Partnership Preferred Units ("Senior
Partnership Units");
(b) on a parity with the Series F Partnership Preferred Units,
as to the payment of distributions and as to distribution of assets upon
liquidation, dissolution or winding up, whether or not the distribution rates,
distribution payment dates or redemption or liquidation prices per unit or other
denomination thereof be different from those of the Series F Partnership
Preferred Units if the holders of such class or series of Partnership Units and
the Series F Partnership Preferred Units shall be entitled to the receipt of
distributions and of amounts distributable upon liquidation, dissolution or
winding up in proportion to their respective amounts of accrued and unpaid
distributions per unit or other denomination or liquidation preferences, without
preference or priority one over the other (the Partnership Units referred to in
this paragraph being hereinafter referred to as "Parity Partnership Units"), and
(c) junior to the Series F Partnership Preferred Units, as to
the payment of distributions and as to the distribution of assets upon
liquidation, dissolution or winding up, if such class or series of Partnership
Units shall be Partnership Common Units or the holders of Series F Partnership
Preferred Units shall be entitled to receipt of distributions or of amounts
distributable upon liquidation, dissolution or winding up, as the case may be,
in preference or priority to the holders of such class or series of Partnership
Units (the Partnership Units referred to in this paragraph being hereinafter
referred to, collectively, as "Junior Partnership Units").
8. Special Allocations.
(a) Gross income and, if necessary, gain shall be allocated to
the holders of Series F Partnership Preferred Units for any Fiscal Year (and, if
necessary, subsequent Fiscal Years) to the extent that the holders of Series F
Partnership Preferred Units receive a distribution on any Series F Partnership
Preferred Units (other than an amount included in any redemption pursuant to
Section 5 hereof) with respect to such Fiscal Year.
(b) If any Series F Partnership Preferred Units are redeemed
pursuant to Section 5 hereof, for the Fiscal Year that includes such redemption
(and, if necessary, for subsequent Fiscal Years) (a) gross income and gain (in
such relative proportions as the General Partner in its discretion shall
determine) shall be allocated to the holders of Series F Partnership Preferred
Units to the extent that the redemption amounts paid or payable with respect to
the Series F Partnership Preferred Units so redeemed exceeds the aggregate
Capital Contributions (net of liabilities assumed or taken subject to by the
Partnership) per Series F Partnership Preferred Unit allocable to the Series F
Partnership Preferred Units so redeemed and (b) deductions and losses (in such
relative proportions as the General Partner in its discretion shall determine)
shall be allocated to the holders of Series F Partnership Preferred Units to the
extent that the aggregate Capital Contributions (net of liabilities assumed or
taken subject to by the Partnership) per Series F Partnership Preferred Unit
allocable to the Series F Partnership Preferred Units so redeemed exceeds the
redemption amount paid or payable with respect to the Series F Partnership
Preferred Units so redeemed.
9. Restrictions on Ownership.
The Series F Partnership Preferred Units shall be owned and held solely
by the General Partner or the QRS.
10. Vote Required for Amendment, Merger, Consolidation, etc.
So long as any Series F Partnership Preferred Units are outstanding, in
addition to any other vote or consent required by law or by the Agreement, the
affirmative vote of at least 66-2/3% of the holders of the Series F Partnership
Preferred Units, given in person or by proxy, either in writing without a
meeting or by vote at any meeting called for the purpose, shall be necessary for
effecting or validating:
(a) Any amendment, alteration or repeal of any of the
provisions of the Agreement, the Amendment, or this Exhibit H thereto,
that materially and adversely affects the powers, rights or preferences
of the holders of the shares of Series F Partnership Preferred Units;
provided, however, that the amendment of the provisions of the
Agreement so as to authorize or create or to increase the authorized
amount of, any Junior Partnership Units, or other Units that are not
senior in any respect to the Series F Partnership Preferred Units or
any Parity Partnership Units shall not be deemed to materially
adversely affect the powers, rights or preferences of the holders of
Series F Partnership Preferred Units; or
(b) An exchange that affects the Series F Partnership
Preferred Units, a consolidation with or merger of the Partnership into
another entity, or a consolidation with or merger of another entity
into the Partnership, unless in each such case each Series F
Partnership Preferred Unit (i) shall remain outstanding without a
material and adverse change to its terms and rights or (ii) shall be
converted into or exchanged for convertible preferred securities of the
surviving entity having preferences, conversion or other rights,
powers, restrictions, limitations as to distributions, qualifications
and terms or conditions of redemption thereof identical to that of a
Series F Partnership Preferred Unit (except for changes that do not
materially and adversely affect the holders of the Series F Partnership
Preferred Units); or
(c) The authorization, reclassification or creation of, or the
increase in the authorized amount of, any Units of any series, or any
security convertible into Units of any series, ranking prior to the
Series F Partnership Preferred Units in the distribution of assets on
any liquidation, dissolution or winding up of the Partnership or in the
payment of distributions; or
(d) Any increase in the authorized amount of Series F
Partnership Preferred Units or decrease in the authorized amount of
Series F Partnership Preferred Units below the number of Series F
Partnership Preferred Units then issued and outstanding;
provided, however, that no such vote of the holders of Series F Partnership
Preferred Units shall be required if, at or prior to the time when such
amendment, alteration or repeal is to take effect, or when the issuance of any
such prior Units or convertible security is to be made, as the case may be,
provision is made for the redemption of all Series F Partnership Preferred Units
at the time outstanding to the extent such redemption is authorized by Section 5
hereof.
For purposes of the foregoing provisions of this Section 10, each
Series F Partnership Preferred Unit shall have one (1) vote, except that when
any other series of Preferred Units shall have the right to vote with the Series
F Partnership Preferred Units as a single class on any matter, then the Series F
Partnership Preferred Units and such other series shall have with respect to
such matters one (1) vote per $25.00 of stated liquidation preference. Except as
otherwise required by applicable law or as set forth herein, the Series F
Partnership Preferred Units shall not have any relative, participating, optional
or other special voting rights and powers other than as set forth herein, and
the consent of the holders thereof shall not be required for the taking of any
Partnership action.
11. General
(a) The ownership of Series F Partnership Preferred Units may
(but need not, in the sole and absolute discretion of the General Partner) be
evidenced by one or more certificates. The General Partner shall amend Exhibit A
to the Agreement from time to time to the extent necessary to reflect accurately
the issuance of, and subsequent redemption, or any other event having an effect
on the ownership of, Series F Partnership Preferred Units.
(b) The rights of the General Partner and the QRS, in their
capacity as holders of the Series F Partnership Preferred Units, are in addition
to and not in limitation of any other rights or authority of the General Partner
or the QRS, respectively, in any other capacity under the Agreement or
applicable law. In addition, nothing contained herein shall be deemed to limit
or otherwise restrict the authority of the General Partner or the QRS under the
Agreement, other than in their capacity as holders of the Series F Partnership
Preferred Units.
12. Economic Equivalency.
Notwithstanding any other provision of this Exhibit H, the shares of
Series F Preferred Stock and the Series F Partnership Preferred Units are
intended to be substantially equivalent in distributions and other payments. In
the event that any provision of this Exhibit H would result in a different
distribution or other payments being made to the holder of a Series F
Partnership Preferred Units than to a holder of a share of Series F Preferred
Stock, this Exhibit H shall be deemed automatically amended to conform to the
terms of the Series F Articles Supplementary with respect to such distribution
or other payment.
