EXHIBIT 10.1
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FOURTH AMENDMENT TO
AMLI RESIDENTIAL PROPERTIES, L.P.
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
This Amendment, dated as of March 9, 1998, amends the Amended and
Restated Agreement of Limited Partnership, dated as of February 15, 1994,
as amended by the First Amendment thereto, dated as of July 3, 1995, the
Second Amendment thereto, dated as of January 30, 1996 and the Third
Amendment thereto, dated July 31, 1996 (as so amended the "PARTNERSHIP
AGREEMENT"), of Amli Residential Properties, L.P., a Delaware limited
partnership (the "PARTNERSHIP"), by and among Amli Residential Properties
Trust, a Maryland real estate investment trust, as the general partner (the
"GENERAL PARTNER"), and the Persons whose names are set forth on Exhibit A
to the Partnership Agreement, as the Limited Partners (the "LIMITED
PARTNERS"), together with any other Persons who become Partners in the
Partnership as provided in the Partnership Agreement.
W I T N E S E T H:
WHEREAS, the Partnership is a Delaware limited partnership existing
under the Delaware Revised Uniform Limited Partnership Act (the "ACT")
pursuant to the Partnership Agreement;
WHEREAS, the General Partner is issuing Series B Preferred Shares (as
defined below);
WHEREAS, the General Partner will contribute the net proceeds of the
issuance of Series B Preferred Shares as a Capital Contribution to the
Partnership;
WHEREAS, SECTION 4.2(b) of the Partnership Agreement provides as
follows:
"The Partnership also may from time to time issue to the
General Partner additional Partnership Units or other Partnership Interests
in one or more classes, or one or more series of any of such classes, with
such designations, preferences and relative, participating, optional or
other special rights, powers and duties, including rights, powers and
duties senior to Limited Partnership Interests, all as shall be determined
by the General Partner, subject to Delaware law, including, without
limitation, with respect to (i) the allocations of items of Partnership
income, gain, loss, deduction and credit to each such class or series of
Partnership Interests, (ii) the right of each such class or series of
Partnership Interests to share in Partnership distributions, and (iii) the
rights of each such class or series of Partnership Interests upon
dissolution and liquidation of the Partnership; PROVIDED that (x) the
additional Partnership Interests are issued in connection with an issuance
of shares of the General Partner, which shares have designations,
preferences and other rights, all such that the economic interests are
substantially similar to the designations, preferences and other rights of
the additional Partnership Interests issued to the General Partner in
accordance with this SECTION 4.2(b), and (y) the General Partner shall make
a Capital Contribution to the Partnership in an amount equal to the net
proceeds raised in connection with the issuance of such shares of the
General Partner."
WHEREAS, SECTION 14.1(b)(3) of the Partnership Agreement provides
that the General Partner shall have the power, without the consent of the
Limited Partners, to amend the Partnership Agreement "to set forth the
rights, powers, duties, and preferences of the holders of any additional
Partnership Interests issued pursuant to SECTION 4.2(b)" of the Partnership
Agreement; and
WHEREAS, the General Partner desires to amend the Partnership
Agreement to set forth the rights, powers, duties, and preferences of the
General Partner as the holder of certain Partnership Interests, and the
Partnership Units corresponding thereto, issued pursuant to SECTION 4.2(b).
NOW, THEREFORE, pursuant the authority granted in SECTION 14.1(b)(3)
of the Partnership Agreement, the General Partner hereby amends the
Partnership Agreement as follows:
1. AMENDMENT. Effective at (and subject to the occurrence of) the
Effective Time (as defined in SECTION 2 below), SECTION 4.2 of the
Partnership Agreement is hereby amended by adding the following new
subsection (g) at the end of such Section:
"(g) PARTNERSHIP INTEREST AND UNITS IN CONNECTION WITH SERIES
B CUMULATIVE CONVERTIBLE REDEEMABLE PREFERRED SHARES.
(1) Pursuant to the provisions of, and upon the Capital
Contribution called for by, SECTION 4.2(b), there are hereby from time to
time issued to the General Partner an additional Partnership Interest and,
corresponding thereto, a number of Partnership Units (the "SERIES B
PREFERRED UNITS") equal to the number of Series B Cumulative Convertible
Redeemable Preferred Shares of Beneficial Interest of the General Partner,
as classified and designated by Articles Supplementary (the "ARTICLES
SUPPLEMENTARY") filed with the Maryland Department of Assessments and
Taxation on February 25, 1998 (the "SERIES B PREFERRED SHARES"), from time
to time outstanding. The Series B Preferred Units shall have such
designations, preferences and relative, participating, optional or other
special rights, powers and duties, including rights, powers and duties
senior to Limited Partnership Interests, as further provided in SECTION
4.2(g)(2) AND SECTION 4.2(g)(3) below and as shall be determined by the
General Partner, subject to Delaware law, including, without limitation,
with respect to (i) the allocations of items of Partnership income, gain,
loss, deduction and credit, (ii) the right to share in Partnership
distributions, and (iii) the rights upon dissolution and liquidation of the
Partnership, all such that the economic interests represented by the Series
B Preferred Units are substantially similar to the designations,
preferences and other rights of the Series B Preferred Shares. To the
extent necessary to give effect to the preceding sentence, (i) the Series B
Preferred Units shall have preference over other Partnership Units with
respect to distributions of Available Cash as provided in SECTION 5.1(i),
and (ii) the General Partner shall, with respect to the Series B Preferred
Units, have priority over other Partners and Assignees as to profits,
losses and distributions as authorized by SECTION 8.4.
(2) The General Partner shall be entitled to receive
preferential distributions on the Series B Preferred Units corresponding to
the distributions to which holders of the Series B Preferred Shares are
entitled. As set forth in the Articles Supplementary, the distributions to
which holders of Series B Preferred Shares are entitled are as follows
(Capitalized terms used in the following subsections (2)(i) through (2)(iv)
and not defined in this Amendment shall have the respective meanings
assigned such terms in the in the Articles Supplementary.):
(i) The holders of Series B Preferred Shares shall be
entitled to receive, when, as and if declared by the Board of Trustees out
of funds legally available for that purpose, cumulative distributions
payable in cash in an amount per share equal to the greater of (A) the base
distribution of $0.45 per quarter (the "Base Rate") or (B) the
distributions declared on the number of Common Shares, or portion thereof,
into which a Series B Preferred Share would then be convertible, without
regard to any time restrictions on the convertibility of the Series B
Preferred Shares. The amount referred to in clause (B) of this subsection
(2)(i) with respect to each succeeding Distribution Period shall be
determined as of the applicable Distribution Payment Date by multiplying
the number of Common Shares, or portion thereof, calculated to the fourth
decimal point, into which a Series B Preferred Share would then be
convertible (without regard to any time restrictions on the convertibility
of the Series B Preferred Shares) at the opening of business on such
Distribution Payment Date (based on the Conversion Price then in effect) by
the aggregate cash distributions payable or paid for such Distribution
Period in respect of a Common Share outstanding as of the record date for
the distribution payable on the Common Shares for such Distribution Period.
If (X) the General Partner pays a cash distribution on the Common Shares
after the Distribution Payment Date for the corresponding Distribution
Period and (Y) the distribution on the Series B Preferred Shares for such
Distribution Period calculated pursuant to clause (B) of the subsection
(2)(i), taking into account the Common Share distribution referenced in
clause (X), exceeds the distribution previously declared on the Series B
Preferred Shares for such Distribution Period, the General Partner shall
pay an additional distribution to the holders of the Series B Preferred
Shares on the date that the Common Share distribution referenced in clause
(X) is paid, in an amount equal to the difference between the distribution
calculated pursuant to clause (Y) and the distributions previously declared
on the Series B Preferred Shares with respect to such Distribution Period.
Such distributions shall be cumulative from each Issue Date, whether or not
in any Distribution Period or Periods such distributions are declared or
there are funds of the General Partner legally available for the payment of
such distributions, and shall be payable quarterly in arrears on the
Distribution Payment Dates, commencing on the first Distribution Payment
Date after each Issue Date. Each such distribution shall be payable in
arrears to the holders of record of the Series B Preferred Shares, as they
appear on the share records of the General Partner at the close of business
on such record date as is fixed by the Board of Trustees which shall be not
more than 60 days prior to the corresponding Distribution Payment Date and,
within such 60-day period, shall be the same date as the record date for
the regular quarterly distribution payable on the Common Shares for such
Distribution Period (or, if there is no such record date for the Common
Shares, then such date as the Board of Trustees may fix). Accumulated,
accrued and unpaid distributions for any past Distribution Periods may be
authorized or declared and paid at any time, without reference to any
regular Distribution Payment Date, to holders of record on such record date
as may be fixed by the Board of Trustees which shall be not more than 45
days prior to the corresponding payment date.
(ii) In the case of any Series B Preferred Share
the Issue Date of which is a date other than the first day of a
Distribution Period, or any other period shorter than a full Distribution
Period, the amount of distributions payable per such Series B Preferred
Share shall be computed ratably on the basis of a 360-day year
of twelve 30-day months. Holders of Series B Preferred
Shares shall not be entitled to any distributions, whether payable in cash,
property or shares, in excess of cumulative distributions as herein
provided on the Series B Preferred Shares. No interest, or sum of money in
lieu of interest, shall be payable in respect of any distribution payment
or payments on the Series B Preferred Shares which may be in arrears.
(iii) So long as any of the Series B Preferred
Shares is outstanding, except as described in the immediately following
sentence, no distributions shall be declared or paid or set apart for
payment by the General Partner and no other distribution of cash or other
property shall be declared or made directly or indirectly by the Company
with respect to any class or series of Parity Shares for any period unless
all accumulated, accrued and unpaid distributions 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 with respect to the Series B Preferred Shares. When distributions
are not paid in full or a sum sufficient for such payment is not set apart
for payment as provided above, all distributions declared on the Series B
Preferred Shares and all distributions declared on any other class or
series of Parity Shares shall be declared ratably in proportion to the
respective amounts of distributions accumulated, accrued and unpaid on the
Series B Preferred Shares and on such Parity Shares.
(iv) So long as any of the Series B Preferred
Shares is outstanding, no distributions (other than distributions paid in,
or options, warrants or rights to subscribe for or purchase, Junior Shares)
shall be declared or paid or set apart for payment by the General Partner
and no other distribution of cash or other property shall be declared or
made directly or indirectly by the General Partner with respect to any
class or series of Junior Shares, nor shall any Junior Shares be redeemed,
purchased or otherwise acquired (other than a redemption, purchase or other
acquisition of Common Shares 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 Junior Shares) directly or indirectly by the
General Partner (except by conversion into or exchange for Junior Shares),
nor shall any other cash or other property otherwise be paid or distributed
to or for the benefit of any holder of Junior Shares in respect thereof
directly or indirectly by the General Partner unless in each case (A) all
distributions (including all accumulated, accrued and unpaid distributions)
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 with respect to the Series B Preferred Shares and all
past distribution periods with respect to any Parity Shares and (B) a sum
sufficient for the payment thereof has been or contemporaneously is paid or
set apart for payment of the full distribution for the current Distribution
Period with respect to the Series B Preferred Shares and the current
distribution period with respect to any Parity Shares.
(3) In the event of any liquidation, dissolution or
winding up of the Partnership, whether voluntary or involuntary, the
General Partner shall be entitled to receive preferential distributions
with respect to the Series B Preferred Units corresponding to the
liquidation preference to which holders of the Series B Preferred Shares
are entitled in the event of the liquidation, dissolution or winding up of
the General Partner. As set forth in the Articles Supplementary, the
liquidation preference to which holders of Series B Preferred Shares are
entitled is as follows (Capitalized terms used in the following subsections
(3)(i) through (3)(iii) and not defined in this Amendment shall have the
respective meanings assigned such terms in the in the Articles
Supplementary.):
(i) Upon any liquidation, dissolution or winding
up of the General Partner, whether voluntary or involuntary, before any
payment or distribution of the assets of the General Partner (whether
capital or surplus) shall be made to or set apart for the holders of Junior
Shares, the holders of Series B Preferred Shares shall be entitled to
receive $24.00 per Series B Preferred Share (the "Liquidation Preference"),
plus an amount equal to all distributions (whether or not earned or
declared) accumulated, accrued and unpaid thereon to the date of final
distribution to such holders, if any; but such holders shall not be
entitled to any further payment. Until the holders of the Series B
Preferred Shares have been paid the Liquidation Preference in full, plus an
amount equal to all distributions (whether or not earned or declared)
accumulated, accrued and unpaid thereon to the date of final distribution
to such holders, no payment may be made to any holder of Junior Shares upon
any liquidation, dissolution or winding up of the General Partner. If,
upon any liquidation, dissolution or winding up of the General Partner, the
assets of the General Partner, or the proceeds thereof, distributable among
the holders of Series B Preferred Shares are insufficient to pay in full
such preferential amount and liquidating payments on any other class or
series of Parity Shares, then such assets, or the proceeds thereof, shall
be distributed among the holders of Series B Preferred Shares and any such
other Parity Shares ratably in portion to the respective amounts which
would be payable on such Series B Preferred Shares and any such other
Parity Shares if all amounts payable thereon were paid in full.
(ii) Upon any liquidation, dissolution or winding
up of the General Partner, after payment has been made in full to the
holders of Series B Preferred Shares and any Parity Shares as provided in
this Section 4, any other series or class of Junior Shares 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 B
Preferred Shares and any Parity Shares shall not be entitled to share
therein.
(iii) For purposes of this Section 4.2(g)(3), (A)
a consolidation or merger of the General Partner with or into one or more
corporations, (B) a sale or transfer of all or substantially all of the
General Partner's assets or (C) a statutory share exchange shall not be
deemed to be a liquidation, dissolution or winding up, voluntary or
involuntary, of the General Partner.
(4) Upon conversion of any Series B Preferred Shares
into, or redemption of any Series B Preferred Shares for, Common Shares as
provided in the Articles Supplementary, a corresponding number of Series B
Preferred Units will be converted into Partnership Units having such
designations, preferences and relative, participating, optional or other
special rights, powers and duties, including, without limitation, with
respect to (i) the allocations of items of Partnership income, gain, loss,
deduction and credit, (ii) the right to share in Partnership distributions,
and (iii) the rights upon dissolution and liquidation of the Partnership,
all such that the economic interests represented by such Partnership Units
are substantially similar to the designations, preferences and other rights
of the Common Shares."
2. EFFECTIVENESS. The amendment set forth in SECTION 1 shall
become effective at the time of the first issuance of Series B Preferred
Shares (the "EFFECTIVE TIME").
3. CONTINUING EFFECTIVENESS. As herein amended, the Partnership
Agreement shall remain in full force and effect and is hereby ratified and
confirmed in all respects.
4. GOVERNING LAW. This Amendment shall be governed by the
internal laws of the State of Delaware.
5. DEFINED TERMS. Except as otherwise specified herein,
capitalized terms used and not defined herein shall have the respective
meanings assigned such terms in the Partnership Agreement.
IN WITNESS WHEREOF, the undersigned, the General Partner of the
Partnership, has executed this Amendment to the Partnership Agreement as of
the date first above written.
AMLI RESIDENTIAL PROPERTIES TRUST
By: /s/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
Title: President
