Exhibit 99.5
TWENTY-SEVENTH AMENDMENT TO
FIRST AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
XXXXXXX X. XXXXX RESIDENTIAL REALTY L.P.
THIS TWENTY-SEVENTH AMENDMENT TO FIRST AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP OF XXXXXXX X. XXXXX RESIDENTIAL REALTY L.P. (this
"Twenty-Seventh Amendment"), dated as of November 5 1999, is entered into by
Xxxxxxx X. Xxxxx Residential Realty, Inc., a Maryland corporation, as general
partner (the "General Partner") of Xxxxxxx X. Xxxxx Residential Realty L.P. (the
"Partnership"), for itself and on behalf of the limited partners of the
Partnership.
WHEREAS, Section 4.2.B of the First Amended and Restated Agreement of
Limited Partnership of the Partnership (as heretofore amended, the "Partnership
Agreement") provides that the General Partner shall not issue additional
convertible securities containing the right to subscribe for or purchase shares
of Common Stock of the General Partner ("REIT Shares" and collectively, the "New
Securities"), other than to all holders of REIT Shares, unless the General
Partner causes the Partnership to issue to the General Partner Partnership
Interests having designations, preferences and other rights, all such that the
economic interests are substantially the same as those of the New Securities;
WHEREAS, the General Partner has entered into a Preferred Share
Purchase Agreement dated as of July 2, 1999, pursuant to which the General
Partner has agreed to issue, among other things, shares of a newly created
series of capital stock, designated Series G Cumulative Convertible Redeemable
Preferred Stock (the "Series G Preferred Stock"); and
WHEREAS, pursuant to the authority granted to the General Partner
pursuant to Section 4.2 of the Partnership Agreement, the General Partner
desires to amend the Partnership Agreement (i) to establish a new class of
Units, to be entitled Series G Cumulative Convertible Redeemable Preferred Units
(the "Series G Preferred Units"), and to set forth the designations, rights,
powers, preferences and duties of such Series G Preferred Units, which are
substantially the same as those of the Series G Preferred Stock, and (ii) to
make certain other changes to the Partnership Agreement;
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.J the following section:
K. Series G Preferred Units. Under the authority granted
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to it by Section 4.2.A. hereof, the General Partner hereby establishes
an additional class of Partnership Units entitled "Series G Cumulative
Convertible Redeemable Preferred Units" (the "Series G Preferred
Units"). Series G Preferred Units shall have the designations,
preferences, rights, powers and duties as set forth in Exhibit M
hereto.
2. Exhibits to Partnership Agreement.
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A. The General Partner shall maintain the information set forth
in Exhibit A to the Partnership Agreement, as such information shall change from
time to time, in such form as the General Partner deems appropriate for the
conduct of the Partnership's affairs, and Exhibit A shall be deemed amended from
time to time to reflect the information so maintained by the General Partner,
whether or not a formal amendment to the Partnership Agreement has been executed
amending such Exhibit A. In addition to the designation of Series G Preferred
Units pursuant to this Twenty-Seventh Amendment, such information shall reflect
(and Exhibit A shall be deemed amended from time to time to reflect) the
issuance of any additional Partnership Units to the General Partner or any other
Person, the transfer of Partnership Units and the redemption of any Partnership
Units, all as contemplated herein.
B. The Partnership Agreement is hereby amended by attaching
thereto as Exhibit M the Exhibit M attached hereto.
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3. Certain Capitalized Terms. All capitalized terms used in this
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Twenty-Seventh 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.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the undersigned has executed this Twenty-Seventh
Amendment as of the date first set forth above.
XXXXXXX X. XXXXX RESIDENTIAL REALTY, INC.,
as General Partner of
Xxxxxxx X. Xxxxx Residential Realty L.P.
and on behalf of existing Limited Partners
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: President
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EXHIBIT M
DESIGNATION OF THE PREFERENCES, CONVERSION AND OTHER
RIGHTS, VOTING POWERS, RESTRICTIONS AND LIMITATIONS AS TO
SERIES G PREFERRED UNITS
The Series G Preferred Units shall have the following designations,
preferences, rights, powers and duties:
(1) Certain Defined Terms. The following capitalized terms used in
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this Exhibit J shall have the respective meanings set forth below:
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"Distribution Date" means (i) for any Distribution Period with respect
to which the Partnership pays a distribution on the Class A Units, the date
on which such distribution is paid, or (ii) for any Distribution Period
with respect to which the Partnership does not pay a distribution on the
Class A Units, the date set by the General Partner for payment of dividends
on the Series G Preferred Stock, which date shall not be later than the
forty-fifth calendar day after the end of the applicable Distribution
Period.
"Distribution Period" means quarterly periods commencing on January 1,
April 1, July 1 and October 1 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 the
Issue Date and end on and include the last calendar day of the calendar
quarter containing the Issue Date, and other than the Distribution Period
during which any Series G 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 G Preferred Units have preference or priority in both (i)
the payment of dividends and (ii) the distribution of assets on any
liquidation, dissolution or winding up of the Partnership.
"Issue Date" shall mean the date on which the first Series G Preferred
Units are issued.
"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 G Preferred Units have preference or priority in the
payment of dividends 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.
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(A) The General Partner, in its capacity as the holder of the then
outstanding Series G Preferred Units, shall be entitled to receive out of
funds legally available therefor, when, as and if declared by the General
Partner, distributions payable in cash at the rate per Series G Preferred
Unit equal to the greater of (a)(i) $3.0225 per annum from the Issue Date
up to and including the first anniversary of the Issue Date, (ii) $3.2175
per annum from the day after the period described in (i) up to and
including the second anniversary of the Issue Date and (iii) $3.315 per
annum thereafter, or (b) the ordinary cash distributions (determined on
each Distribution Date) paid on the number of Class A Units, or portion
thereof, into which a Series G Preferred Unit is convertible. The
distributions referred to in clause (b) of the preceding sentence shall
equal the number of Class A Units, or portion thereof, into which a Series
G Preferred Unit is convertible, multiplied by the most recent quarterly
distribution on a Class A Unit on or before the applicable Distribution
Date. If the Partnership pays an ordinary cash distribution on the Class A
Units with respect to a Distribution Period after the date on which the
Distribution Date is declared pursuant to clause (ii) of the definition of
Distribution Date and the distribution calculated with respect to clause
(b) of the first sentence of this Section 2(A) is greater than the
distribution previously declared on the Series G Preferred Units with
respect to such Distribution Period, the Partnership shall pay an
additional distribution in respect of the Series G Preferred Units on the
date on which the distribution on the Class A Units is paid, in an amount
equal to the difference between (y) the distribution calculated pursuant to
clause (b) of the first sentence of this Section 2(A) and (z) the amount of
distributions previously declared on the Series G Preferred Units with
respect to such Distribution Period. Distributions shall begin to accrue
and shall be fully cumulative from the first day of the applicable
Distribution Period, whether or not in any Distribution Period or Periods
there shall be funds of the Partnership legally available for the payment
of such distributions, and shall be payable quarterly, when, as and if
declared by the General Partner, in arrears on Distribution Dates. 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 Distribution Date, to the General Partner on such date as may be
fixed by the General Partner for payment of the corresponding dividend on
the Series G Preferred Stock. Any distribution made on the Series G
Preferred Units shall first be credited against the earliest accrued but
unpaid distribution due with respect to Series G Preferred Units which
remains payable.
(B) The amount of distributions referred to in clause (a) of the
first sentence of Section 2(A) shall be equal to the annual distribution
rate payable for each full Distribution Period for the Series G Preferred
Units shall be computed by dividing by four. The distribution for the
initial Distribution Period will include a partial distribution for the
period from the Issue Date until the last calendar day of the calendar
quarter containing the Issue Date. The amount of distributions payable for
such initial Distribution Period, or any other period shorter than a full
Distribution Period, on the Series G Preferred Units shall be computed on
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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 G Preferred Units that may
be in arrears.
(C) So long as any Series G Preferred Units are outstanding, no
distributions, except as described in the immediately following sentence,
shall be declared or 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 declared and paid or declared and a sum
sufficient for the payment thereof set apart for such payment on the Series
G 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 declared upon
Series G Preferred Units and all distributions declared upon any other
class or series of Parity Units shall be declared ratably in proportion to
the respective amounts of distributions accumulated and unpaid on the
Series G Preferred Units and accumulated and unpaid on such Parity Units.
(D) So long as any Series G 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 G Preferred
Units and any other Parity Units of the Partnership shall have been paid or
declared and set apart for payment for all past Distribution Periods with
respect to the Series G Preferred Units and all past distribution periods
with respect to such Parity Units and (ii) sufficient funds shall have been
paid or set apart for the payment of the distribution for the current
Distribution Period with respect to the Series G Preferred Units and the
current distribution period with respect to such Parity Units.
(E) No distributions on the Series G Preferred Units shall be
declared by the General Partner or 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.
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(3) Liquidation Preference.
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(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 G Preferred Units, shall be entitled to receive
Thirty-Nine Dollars ($39.00) (the "Series G Liquidation Preference") per
Series G Preferred Unit plus an amount equal to all distributions (whether
or not earned or declared) 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 G Preferred
Units, shall not be entitled to any further payment; provided that the
distribution payable with respect to the Distribution Period containing the
date of final distribution shall be equal to the greater of (i) the
distribution provided in clause (a) of the first sentence of Section 2(A)
or (ii) the distribution determined pursuant to clause (b) of the first
sentence of Section 2(A) for the preceding Distribution Period. If, upon
any 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 G 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 G Preferred
Units, and the holders of such other Parity Units ratably in accordance
with the respective amounts that would be payable on such Series G
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 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 G
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 G 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 (if any)
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 G Preferred Units, shall not be entitled to share therein.
4. Redemption Right.
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(A) Except as provided in Section 4(B), the Series G Preferred
Units shall not be redeemable prior to the third anniversary of the Issue
Date. On and after the third anniversary of the Issue Date, the General
Partner may cause the Partnership to redeem the Series G Preferred Units,
in whole or in part, (x) for Class A Units, subject to the conditions set
forth in paragraph (i) below, or (y) for cash in an amount per Series G
Preferred Unit equal to the Series G Liquidation Preference plus accrued
and unpaid distributions (the "Redemption Price"), in each case subject to
the conditions set forth below.
(i) The Series G Preferred Units shall be redeemed only if the
General Partner shall concurrently therewith redeem an
equivalent number of shares of Series G Preferred Stock for REIT
Shares or cash, as the case may be. Such redemption of Series G
Preferred Units shall occur substantially concurrently with the
redemption by the General Partner of such Series G Preferred
Shares (such date of redemption the "Redemption Date").
(ii) In the event that the General Partner redeems shares of Series G
Preferred Stock in exchange for REIT Shares, an equivalent
number of Series G Preferred Units shall be converted into a
number of Class A Units equal to (x) the number of REIT Shares
issued by the General Partner in redemption of such shares of
Series G Preferred Stock divided by (y) the Conversion Factor.
(iii) In the event that the General Partner redeems shares of Series G
Preferred Stock for cash (including payments of cash in lieu of
fractional REIT Shares), the Partnership shall redeem a like
number of Series G Preferred Units in exchange for the amount of
cash that the General Partner is required to pay pursuant to the
terms of the Series G Preferred Stock in connection with such
redemption.
(iv) Upon any redemption of Series G Preferred Units, the Partnership
shall pay any accrued and unpaid distributions with respect to
the Series G Preferred Units being redeemed for any Distribution
Period ending on or prior to the Redemption Date. If the
Redemption Date falls after a Partnership Record Date and prior
to the corresponding Distribution Date, then the General
Partner, in its capacity as the holder of the Series G Preferred
Units being redeemed, shall be entitled to distributions payable
on the corresponding Distribution Date notwithstanding the
redemption of such Series G Preferred Units before such
Distribution Date. Except as provided above, the Partnership
shall make no payment or allowance for unpaid distributions,
whether or not in arrears, on Series G Preferred Units called
for redemption.
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(v) Any Class A Unit issued upon redemption of the Series G
Preferred Units shall be validly issued, fully paid and non-
assessable.
(B) In the event that the General Partner is required to redeem
any shares of Series G Preferred Stock pursuant to the terms thereof, the
Partnership shall redeem an equivalent number of Series G Preferred Units
for consideration equal to the consideration payable by the General Partner
upon redemption of such shares of Series G Preferred Stock.
5. Conversion to Class A Units.
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(A) In the event that a holder of Series G Preferred Stock
exercises its right to convert such Series G Preferred Stock into REIT
Shares, then, concurrently therewith, an equivalent number of Series G
Preferred Units shall be automatically converted into a number of Class A
Units equal to (x) the number of REIT Shares issued upon conversion of such
Series G Preferred Shares divided by (y) the Conversion Factor. Any such
conversion will be effective at the same time as the conversion of Series G
Preferred Stock into REIT Shares is effective.
(B) The General Partner, in its capacity as the holder of Series
G Preferred Units that are converted pursuant to this Section 5 effective
during the period after a Partnership Record Date and prior to the opening
of business on the corresponding Distribution Date, shall not be entitled
to receive the distribution payable on such Series G Preferred Units on
such Distribution Date notwithstanding such conversion thereof following
the corresponding Partnership Record Date and prior to such Distribution
Date.
6. Ranking. Any class or series of Partnership Units shall be
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deemed to rank:
(A) prior to the Series G 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 G Preferred Units;
(B) on a parity with the Series G 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 G Preferred Units, if the holders of such class or series of
Partnership Units and the Series G Preferred Units shall be entitled to the
receipt of distributions and of amounts distributable upon liquidation,
dissolution or
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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");
(C) junior to the Series G 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 G 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
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capacity as the holder of the Series G 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 G Preferred Units shall be
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owned and held solely by the General Partner.
9. General. The rights of the General Partner, in its capacity as
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the holder of the Series G 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 M shall be deemed to limit or otherwise restrict any rights or
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authority of the General Partner under the Agreement, other than in its
capacity as the holder of the Series G Preferred Units.
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