AMENDMENT TO EXHIBIT 10.1
SECOND AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP OF
Bnp RESIDENTIAL Properties Limited Partnership
(Formerly Xxxxxx-Xxxxx Properties Limited Partnership)
As of this 28th day of December, 2001, the Second Amended and Restated
Agreement of Limited Partnership of BNP Residential Properties Limited
Partnership (the "Limited Partnership"), dated as of March 17, 1999, as amended
(the "Agreement"), is hereby amended pursuant to Section 4.2.A and 14.1.B
thereof as follows:
Section 1. Exhibit to the Agreement.
The Agreement is hereby amended by attaching thereto as Exhibit I the
Exhibit attached hereto.
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IN WITNESS WHEREOF, the undersigned has executed this Amendment as of
the date first written above.
BNP Residential Properties, Inc.
as General Partner of
BNP Residential Properties Limited Partnership
/s/ Xxxxxx X. Xxxxx
-----------------------------------------------
Xxxxxx X. Xxxxx
Executive Vice President
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Exhibit I
BNP Residential Properties Limited Partnership
Certificate of Designation of the Preferences, Conversion And Other Rights,
Voting Powers, Restrictions, Limitations as to Distributions, Qualifications and
Terms and Conditions of Redemption of the Series B Preferred Partnership Units
The following are the terms of the Series B Preferred Partnership Units
established pursuant to this Certificate of Designation (the "Certificate"):
Section 1. Designation and Amount. A series of Preferred Units designated as
"Series B Preferred Units" is hereby established and the number of Partnership
Units constituting the series so designated shall be 909,090 (the "Series B
Preferred Units").
Section 2. Distribution Rights.
(a) General. In addition to any other distributions expressly provided for
herein, the Partnership shall pay in cash, when, as and if authorized
by the General Partner, out of funds legally available therefor as
provided by the laws governing limited partnerships in Delaware (the
"Legally Available Funds"), distributions (the "Preferred
Distribution") at the quarterly rate equal to the Distribution Rate
per issued and outstanding Series B Preferred Unit, per calendar
quarter. Such distributions shall be cumulative and payable (if
declared) quarterly within five days of the 17th day of each February,
May, August and November, with respect to the prior calendar quarter,
commencing February 2002 to the holders of record at the close of
business on the date specified by the General Partner at the time such
distribution is declared no more than 45 days prior to the date fixed
for payment thereof; provided, however, that the Partnership shall
have the right to declare and pay distributions at any time. The
Distribution Rate shall be pro rated for the actual number of days in
any partial quarter.
(b) Commencement and Termination of Accrual of Distributions.
Distributions shall begin to accrue from the date of issuance of each
share of Series B Preferred Unit to and including the first to occur
of the following:
(i) the date on which the Series B Preference Payment or Redemption
Payment (plus all accrued and unpaid distributions thereon
whether or not declared) is paid to the holder thereof in
connection with the dissolution of the Partnership or the Company
or the redemption of such Series B Preferred Unit by the
Partnership in connection with Company's redemption of shares of
the Company's Series B Cumulative Convertible Preferred Stock
(the "Series B Preferred Stock");
(ii) the date (the "Accrual Date") on which such Series B Preferred
Unit is converted into a Common Unit (a "Conversion Unit"),
provided that to the extent such Conversion Unit would be
entitled to a distribution for a period prior to the Accrual
Date, the Accrual Date will be the date
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immediately preceding the period that precedes the Accrual Date
for which such Conversion Unit would be entitled to a
distribution;
(iii) the date on which such Series B Preferred Unit is otherwise
acquired and paid for by the Partnership.
(c) Cumulative Nature of Distributions. Each distribution shall be fully
cumulative, to the extent not previously paid, whether or not declared
and whether or not there are Legally Available Funds at the times set
forth in Section 2(a), such that Series B Preferred Units on which
distributions have not been paid in full on the dates set forth above
shall accrue distributions at the then applicable Distribution Rate
per share per quarter. Distributions not paid in full on the dates set
forth above shall accrue distributions at the Accumulating Rate. Any
distribution payment with respect to the Series B Preferred Units
shall first be credited against any prior accrued and unpaid
distribution.
(d) Distribution of Assets or Debt Securities. If the Partnership declares
a distribution on the Common Units of any of its assets (excluding
cash distributions (other than extraordinary cash distributions)) or
debt securities, then each Series B Preferred Unit shall be entitled
to receive distributions on an As-Converted Basis in pari passu with
the Common Units.
(e) Ranking as to Distributions; Restrictions. Distributions with respect
to the Series B Preferred Units shall be declared and paid pari passu
with the distributions on any equity securities of the Partnership
ranking on a parity with the Series B Preferred Units as to
distributions. The holders of Series B Preferred Units shall be
entitled to receive distributions prior and in preference to any
declaration or payment of any distribution (other than distributions
payable in Common Units or in other securities entitling the holder
thereof to receive, directly or indirectly, additional Common Units
for which an anti-dilution adjustment is provided by adjustment of the
Conversion Ratio pursuant to Section 6) on Common or any other Units
of the Partnership ranking junior to the Series B Preferred Units as
to the payment of distributions ("Junior Securities"), payable only
when, as and if declared by the General Partner. No distributions
shall be set apart for or paid upon the Common Units, the Series A
Preferred Units or any other Junior Securities unless all such
cumulative distributions on the Series B Preferred Units have been
paid.
(f) Pro Rata Distribution. All distributions paid with respect to Series B
Preferred Units pursuant to this Section 1 shall be paid pro rata in
respect of each Series B Preferred Unit entitled thereto. In the event
that the Legally Available Funds available for the payment of
distributions shall be insufficient for the payment of the entire
amount of distributions payable with respect to the outstanding Series
B Preferred Units and any other outstanding Partnership Units that
rank on a parity with the Series B Preferred Units as to distributions
on any date on which the General Partner has authorized the payment of
a distribution or otherwise, the amount of any available surplus shall
be allocated for the payment
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of distributions with respect to the outstanding Series B Preferred
Units and any other outstanding equity securities of the Company that
rank on parity with the Series B Preferred Units as to distributions
pro rata based upon the amount of accrued and unpaid distributions on
such Partnership Units.
(g) Limits. Holders of Series B Preferred Units shall not be entitled to
any distribution (except as provided in Section 3 below), whether
payable in cash, property or securities, in excess of the full
cumulative distributions on the Series B Preferred Units (as used in
this Certificate of Designation, such term being deemed to include
distributions on accrued and unpaid distributions) as expressly
described above.
Section 3. Preference Upon Dissolution.
(a) Payment upon Dissolution. In the event of any dissolution of the
Company or the Partnership, whether voluntary or involuntary, then out
of the assets of the Partnership before any distribution or payment to
the holders of equity securities of the Partnership ranking junior to
the Series B Preferred Units (as to preference upon dissolution), and
on a pari passu basis with the holders of any equity securities
ranking on a parity with the Series B Preferred Units (as to
preference upon dissolution), the holders of the Series B Preferred
Units shall be entitled to be paid $11.00 per Series B Preferred Unit
plus accrued and unpaid distributions whether or not declared (the
"Series B Preference Payment"), to the date that the distribution is
made available.
(b) Pro Rata Distribution. If, upon any dissolution of the Company or the
Partnership, the assets of the Partnership available for distribution
to the holders of Series B Preferred Units and any Preferred Units
ranking on a parity with the Series B Preferred Units (as to
preference upon dissolution) shall be insufficient to permit full
payment of the amount that such holders are entitled to receive in
such case, then all of the assets available for distribution to the
holders of the Series B Preferred Units and any Preferred Units
ranking on a parity with the Series B Preferred Units (as to
preference upon dissolution) shall be distributed among and paid to
the holders of Series B Preferred Units and any Preferred Units
ranking on a parity with the Series B Preferred Units (as to
preference upon dissolution), ratably in proportion to the respective
amounts that would be payable to such holders if such assets were
sufficient to permit payment in full.
(c) Notice. Written notice of any planned dissolution payment stating a
payment date, the place where such payment shall be made, and the
amount of each Series B Preference Payment shall be given by first
class mail, postage prepaid, not less than 30 days prior to the
payment date stated therein, to each holder of record of the Series B
Preferred Units, at such holder's address as shown in the records of
the Partnership.
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(d) Characterization of Certain Transactions. No consolidation, merger,
transfer of assets, or share exchange involving the Company or the
Partnership shall be considered a dissolution of the Company or the
Partnership.
Section 4. Voting Rights. Except as otherwise provided by law or this
Partnership Agreement, the holders of the Series B Preferred Units shall 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 Limited Partners and to
receive any notice of any meeting of the Partners in pari passu with the holders
of Common Units on an As-Converted Basis.
Section 5. Limitation on Holders of
Series B Preferred Units. The Partnership may not issue Series B Preferred Units
to any Person other than the General Partner. The General Partner will hold the
Series B Preferred Units as securities underlying the shares of Series B
Preferred Stock.
Section 6. Conversion. The Series B Preferred Units will be converted into
Common Units by the holder thereof at any time when shares of Series B Preferred
Stock of the Company are converted into shares of the Company's Common Stock.
The number of Series B Preferred Units to convert will equal the number of
shares of Series B Preferred Stock being converted into the Company's Common
Stock. The number of Common Units into which the Series B Preferred Units will
convert will equal the product of the number of Series B Preferred Units being
converted multiplied by the Conversion Ratio. The "Conversion Ratio" shall at
all times equal the Conversion Ratio applicable to the Company's Series B
Preferred Stock.
Section 7. Redemption of Series B Preferred Units. The General Partner will
cause the Partnership to redeem the Series B Preferred Units, to the extent it
shall have Legally Available Funds therefor, at any time the General Partner
redeems shares of its Series B Preferred Stock. The number of Series B Preferred
Units redeemed and the Redemption Price shall equal the number of shares of
Series B Preferred Stock the General Partner redeems and the Redemption Price at
which the General Partner redeems such shares, respectively.
Section 8. Definitions.
(a) "Accumulating Rate" means the amount per share equal to the accrued
but unpaid distributions pursuant to Section 2(a) multiplied by 12%,
compounded on an annual basis.
(b) "As-Converted Basis" means, with respect to any security convertible
into Common Stock, a basis assuming the conversion of such security
into that number of shares of Common Stock into which such security is
then convertible.
(c) "Distribution Rate" means, with respect to any share of Series B
Preferred Units then issued and outstanding, per fiscal quarter: (i)
during the period from the Initial Closing Date until the First Rate
Change Date, $0.275; (ii) during the period from and including the
First Rate Change Date until the Second Rate
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Change Date, $0.33, and (iii) from and after the Second Rate Change
Date, the Final Distribution Rate.
(d) "Final Distribution Rate" shall be the greater of (x) $0.385 or (y)
$2.75 multiplied by an amount equal to 900 basis points over the five
year Treasury rate. The Final Distribution Rate shall be calculated
twice annually commencing on the Second Rate Change Date and each
succeeding six-month anniversary thereafter.
(e) "First Rate Change Date" shall be the eighth anniversary of the
Initial Closing Date.
(f) "Indebtedness" means (a) an obligation for borrowed money, (b) an
obligation evidenced by bonds, debentures, notes or similar
instruments, or upon which interest payments are customarily made, (c)
an obligation under a conditional sale or other title retention
agreement relating to property purchased (other than a customary
reservations or retention of title under an agreement with a supplier
entered into in the ordinary course of business), (d) an obligation
issued or assumed as the deferred purchase price of property or
services purchased (other than trade debt incurred in the ordinary
course of business and due within six months of the incurrence
thereof) which would appear as a liability on the Company's
consolidated balance sheet, or (e) the principal portion of a capital
lease obligation.
(g) "Initial Closing Date" is the first date that the Company sells and
issues a share of its Series B Preferred Stock.
(h) "Redemption Payment" means the payment of the Redemption Price on
Series B Preferred Units to be redeemed in accordance with Section 7.
(i) "Second Rate Change Date" shall be the tenth anniversary of the
Initial Closing Date.
The terms set forth below have the meanings ascribed thereto on the referenced
pages:
Accrual Date 3
Certificate 3
Conversion Ratio 6
Conversion Share 3
Junior Securities 4
Legally Available Funds 3
Preferred Distribution 3
Series B Preference Payment 5
Series B Preferred Units 3
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Section 9. Miscellaneous.
(a) Severability. If any provision of this Certificate or any application
of any such provision is determined to be invalid by any federal or
state court having jurisdiction over the issues, the validity of the
remaining provisions shall not be affected and other applications of
such provisions shall be affected only to the extent necessary to
comply with the determination of such court.
(b) Reacquired Units. Any Series B Preferred Units purchased or otherwise
acquired by the Partnership shall be retired and canceled and upon
their cancellation shall become authorized but unissued Preferred
Units and may be classified again and reissued as part of a new series
or class of Preferred Units to be created by the General Partner
pursuant to its power contained in the Partnership Agreement, subject
to conditions and restrictions on issuance set forth herein.
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