Exhibit 10.3
XXXXXXX OPERATING LIMITED PARTNERSHIP
AMENDMENT TO SECOND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
ESTABLISHING AND FIXING THE RIGHTS, LIMITATIONS AND PREFERENCES OF
8.4% SERIES A CONVERTIBLE PREFERRED UNITS
This Amendment to the Second Restated Agreement of Limited Partnership of
Xxxxxxx Operating Limited Partnership, a Delaware limited partnership (the
"Partnership"), dated August 6, 1998 (this "Amendment") amends the Second
Restated Agreement of Limited Partnership of the Partnership, dated September 2,
1997, as amended, by and among Xxxxxxx Real Estate, Inc. (the "General Partner")
and each of the limited partners executing a signature page thereto (the
"Partnership Agreement"). Capitalized terms used herein and not defined herein
have the meanings ascribed thereto in the Partnership Agreement. Section
references are (unless otherwise specified) references to sections in this
Amendment.
WHEREAS, pursuant to Section 3.1.C of the Partnership Agreement, the
General Partner desires to cause the Partnership to issue additional Units of a
new class and series, with the designations, preferences and relative,
participating, optional or other special rights, powers and duties set forth
herein; and
WHEREAS, such new class and series of Units shall be issued to the General
Partner in connection with the issuance by the General Partner of shares of 8.4%
Series A Convertible Preferred Stock, par value $.01 per share ("Series A
Preferred Stock"), to the stockholders of Mid-America Realty Investments, Inc.
("MDI") at the effective time of the merger of MDI with and into the General
Partner, and such shares of Series A Preferred Stock have designations,
preferences and other rights such that the economic interests attributable to
such shares are substantially similar to the designations, preferences and other
rights of the new class and series of Units issued hereby; and
WHEREAS, the General Partner is making a Capital Contribution to the
Partnership in an amount equal to the Net Proceeds raised in connection with the
issuance of the 8.4% Series A Convertible Preferred Stock; and
WHEREAS, pursuant to Section 17.1 of the Partnership Agreement, the General
Partner, without the consent of the Limited Partners, may amend the Partnership
Agreement by executing a written instrument setting forth the terms of such
amendment; and
WHEREAS, the General Partner desires by this Amendment to so amend the
Partnership Agreement as of the date first set forth above to provide for the
designation and issuance of such new class and series of Units.
NOW THEREFORE, the Partnership Agreement is hereby amended by establishing
and fixing the rights, limitations and preferences of a new class and series of
Units as follows:
1. DESIGNATION, AMOUNT AND RANKING.
Pursuant to Section 3.1.C of the Partnership Agreement, a class and series
of Preferred Units, designated "8.4% Series A Convertible Preferred Units," is
hereby established (the "Series A Preferred Units"). The aggregate number of
Series A Preferred Units shall be 3,480,210, all of which are hereby issued to
the General Partner. The General Partner is authorized to issue on behalf of the
Partnership one or more Unit Certificates which evidence ownership of the Series
A Preferred Units in accordance with Section 3.1.A of the Partnership Agreement.
The Series A Preferred Units shall, with respect to distribution rights and
rights upon liquidation, dissolution or winding up of the Partnership, rank (a)
senior to all Units (whether General Partner Units or Limited Partner Units)
outstanding prior to the date hereof and all units of the same class or series
as such previously outstanding Units (hereinafter referred to collectively as,
"Common Units"), and to all classes or series of Units the terms of which
specifically provide that such Units rank junior to such Series A Preferred
Units; (b) on parity with all classes or series of Units issued by the
Partnership the terms of which specifically provide that such Units rank on a
parity with the Series A Preferred Units; and (c) junior to all other classes or
series of Units issued by the Partnership.
2. DISTRIBUTION RIGHTS.
(a) The holder of the outstanding Series A Preferred Units shall be
entitled to receive, when, as and if authorized by the General Partner, out of
funds legally available therefor, cash distributions of Operating Cash Flow and
Capital Cash Flow which are (1) cumulative, (2) preferential to the
distributions paid on the Partnership's Common Units and (3) payable quarterly
in arrears at the rate of 8.4% of the $25.00 liquidation preference per annum
(equivalent to a fixed quarterly amount of $.525 per Series A Preferred Unit)
(the "Distribution Amount") and no more, on the same day as the payment date for
dividends declared by the General Partner on the Series A Preferred Stock (each,
a "Distribution Payment Date"). Each calendar quarter immediately preceding the
Distribution Payment Date (or if the date of original issuance of the Series A
Preferred Units (the "Original Issue Date") is not on the first day of a
calendar quarter, the period beginning on the date of issuance and ending on the
Distribution Payment Date) is referred to hereinafter as a "Distribution
Period." The General Partner may not authorize, declare or pay any distribution
on the Series A Preferred Stock with respect to any period unless it has
authorized, declared and paid a dividend payable by it in the same amount on the
Series A Preferred Stock with respect to the same Distribution Period.
Distributions will be payable to the holder of record with respect to that
number of Series A Preferred Units outstanding on the records of the Partnership
at the close of business on the applicable record date, which shall be the same
day as the record date for any distribution payable by the General Partner on
the Series A Preferred Stock with respect to the same period (each, a
"Distribution Record Date"). Notwithstanding anything in the terms of the Series
A Preferred Units to the contrary, the Distribution Amount for the
2
initial Distribution Period and, if applicable, for the next succeeding
Distribution Period(s) shall be reduced in the aggregate by the amount
(calculated to the nearest one-tenth of one cent) obtained by (x) dividing (i)
the amount of the "Merger Dividend," if any, paid to the holders of common
stock, par value $.01 per share of MDI, prior to its merger with and into the
General Partner by (ii) the number of shares of such common stock of MDI with
respect to which the Merger Dividend was paid and (y) dividing (i) the quotient
so obtained by (ii) the Exchange Ratio. For the purposes of the preceding
sentence, the Merger Dividend shall have the meaning set forth in Section
7.14(b) of the Agreement and Plan of Merger dated as of May 30, 1998 by and
between MDI and the General Partner, as amended from time to time (the "Merger
Agreement"), and the Exchange Ratio shall be 0.42 (or such other amount as is
provided in Section 4.1(b) of the Merger Agreement).
(b) No distributions on Series A Preferred Units shall be authorized
by the General Partner or paid or set apart for payment by the Partnership at
any such time as the terms and provisions of any agreement of the Partnership or
the General Partner, including any agreement relating to their indebtedness,
prohibits such authorization, payment or setting apart for payment or provides
that such authorization, payment or setting apart for payment would constitute a
breach thereof or a default thereunder, or to the extent that such authorization
or payment shall be restricted or prohibited by law.
(c) Notwithstanding the foregoing, distributions on the Series A
Preferred Units shall accrue whether or not the terms and provisions set forth
in Section 2(b) hereof at any time prohibit the current payment of
distributions, whether or not the Partnership has earnings, whether or not there
are funds legally available for the payment of such distributions and whether or
not such distributions are declared. Accrued but unpaid distributions on the
Series A Preferred Units will accumulate as of the Distribution Payment Date on
which they first become payable.
(d) The Partnership shall not (i) declare or pay or set apart for
payment any distributions on any Units ranking as to distributions junior to the
Series A Preferred Units (other than distributions paid by issue or delivery of
such junior Units) or (ii) make any purchase or redemption of, or any sinking
fund payment for the purchase or redemption of, any Units ranking as to
distributions junior to the Series A Preferred Units (other than a purchase or
redemption made by issue or delivery of such junior Units) unless all
distributions payable on all outstanding Series A Preferred Units for all past
Distribution Periods shall have been paid in full or declared and a sufficient
sum set apart for payment thereof; PROVIDED, HOWEVER, that any moneys
theretofore deposited in any sinking fund with respect to any Preferred Units of
the Partnership in compliance with the provisions of such sinking fund may
thereafter be applied to the purchase or redemption of such Preferred Units in
accordance with the terms of such sinking fund.
(e) All distributions declared on any other class of Preferred Units
or series thereof ranking on a parity as to distributions with the Series A
Preferred Units shall be declared pro rata, so that the amounts of distributions
declared per Series A Preferred Unit for
3
the Distribution Period of the Series A Preferred Units ending either on the
same day or within the distribution period of such other class or series of
Units, shall, in all cases, bear to each other the same ratio that accrued
distributions per Series A Preferred Unit and such other class or series of
Units bear to each other.
(f) Any distribution payment made on the Series A Preferred Units
shall first be credited against the earliest accrued but unpaid distribution due
with respect to such Series A Preferred Units which remains payable. Holders of
the Series A Preferred Units shall not be entitled to any distribution, whether
payable in cash, property or Units, in excess of full cumulative distributions
on the Series A Preferred Units as described above.
3. LIQUIDATION RIGHTS.
(a) Subject to any prior rights of any class or series of Units, in
the event of any liquidation, dissolution, or winding up of the Partnership,
either voluntary or involuntary and whether or not in connection with the
liquidation of the Xxxxxxx Group, the holder of all Series A Preferred Units
then outstanding shall be entitled to receive out of the assets of the
Partnership legally available for distribution, on a prior basis and in
preference to any distribution of any of the assets or surplus funds of the
Partnership to the holders of Common Units by reason of their ownership of such
Units, a liquidation preference of $25.00 per Series A Preferred Unit, plus an
amount equal to all accrued but unpaid distributions as determined in accordance
with Section 2(c) for each Series A Preferred Unit then held by it. If, upon the
occurrence of such event, the assets and funds thus distributed to the holder of
the Series A Preferred Units shall be insufficient to permit the payment to it
and the holders of any other class or series of Units on parity with the Series
A Preferred Units of the full aforesaid amounts to which they are entitled,
then, subject to any prior rights of any classes or series of Units, the entire
assets and funds of the Partnership legally available for distribution shall be
distributed ratably to the holders of Series A Preferred Units and any other
Units on a parity for liquidation purposes in proportion to the aggregate
amounts to which each such holder would otherwise be respectively entitled.
(b) After payment of the full amount of the liquidating distributions
to which it is entitled pursuant to Section 3(a) hereof, the holder of Series A
Preferred Units will have no right or claim to any of the remaining assets of
the Partnership arising from its ownership of such Series A Preferred Units (it
being understood that such holder may have additional rights or claims to the
remaining assets of the Partnership as a result of its ownership of Units of
other classes or series or its status as General Partner.)
(c) The consolidation or merger of the Partnership or the General
Partner with or into any other corporation, partnership, limited liability
company, trust or other entity or of any other corporation, partnership, limited
liability company, trust or other entity with or into the Partnership or the
General Partner, or the sale, lease, transfer or conveyance of all or
substantially all of the property or business of the Partnership or the General
Partner or a statutory share exchange, shall not be deemed to constitute a
liquidation, dissolution or winding up of the Partnership.
4
4. CONVERSION.
4.1 MANDATORY CONVERSION.
At any time that any outstanding shares of Series A Preferred Stock of the
General Partner are converted into shares of common stock, par value $.01 per
share, of the General Partner ("Common Stock") pursuant to the terms thereof, a
like number of Series A Preferred Units shall be converted (without taking into
account any accumulated, accrued but unpaid distributions) into Common Units as
follows: the number of Common Units to which a holder of Series A Preferred
Units shall be entitled to receive upon conversion shall be the product obtained
by multiplying the Conversion Rate (as defined below) by the number of Series A
Preferred Units being converted at such time. The Conversion Rate shall be the
quotient obtained by dividing $25.00 by the Conversion Price. The Conversion
Price shall, except as adjusted pursuant to Section 4.4 below, be $24.49. Any
Series A Preferred Units which have been called for redemption pursuant to
Section 5 hereof may be converted at any time prior to the close of business on
the Series A Preferred Redemption Date (as defined in Section 5(a)); PROVIDED,
HOWEVER, that such Series A Preferred Units may be converted after such date if
the Partnership shall default in making payment of any cash payable upon such
redemption under Section 5 hereof.
4.2 PROCEDURE FOR CONVERSION.
Upon conversion of any shares of Series A Preferred Stock into Common
Stock, the holder of Series A Preferred Units shall surrender the certificate(s)
therefor, at the principal offices of the Partnership, or at such other office
as may be designated by the Partnership for notation that a like number of
Series A Preferred Units have been converted or alternatively for cancellation
upon delivery to the holder of a replacement certificate representing the
balance of the Series A Preferred Units not converted. As soon as practicable
after a conversion of Series A Preferred Stock, the Partnership shall issue and
deliver at said office a certificate or certificates for the whole number of
Common Units issuable upon conversion of the Series A Preferred Units duly
surrendered for conversion to such holder if the Common Units are represented by
certificates at such time. The Series A Preferred Units shall be deemed to have
been converted at the same date and time as the corresponding shares of Series A
Preferred Stock are converted into Common Stock, and the holder entitled to
receive the Common Units issuable upon such conversion shall be deemed for all
purposes as record holder of such Common Units as of the close of business on
such date (hereinafter, the "Conversion Date").
The holder of Series A Preferred Units at the close of business on a
Distribution Record Date shall be entitled to receive the distribution payable
on such Series A Preferred Units on the corresponding Distribution Payment Date
notwithstanding the conversion thereof following such Distribution Record Date
and prior to such Distribution Payment Date. Except as provided above, the
Partnership shall make no payment or allowances for unpaid distributions,
whether or not in arrears, on converted Series A Preferred Units or for
distributions on the Common Units issued upon such conversion.
5
4.3 NO FRACTIONAL UNITS.
No fractional Common Units shall be issued upon conversion of the Series A
Preferred Units into Common Units, and, in lieu thereof, the Partnership shall
pay a cash adjustment in an amount equal to the same fraction of the last sale
price (or bid price if there were no sales) per share of Common Stock on the New
York Stock Exchange on the business day which immediately precedes the
Conversion Date or, if such Common Stock is not then listed on the New York
Stock Exchange, of the market price per share (as determined in a manner
prescribed by the General Partner) at the close of business on the business day
which immediately precedes the Conversion Date.
4.4 ADJUSTMENTS; CHANGE IN CONTROL TRANSACTIONS.
(a) In the event the General Partner shall at any time (i) pay a
dividend or make a distribution to holders of Common Stock in shares of Common
Stock, (ii) subdivide its outstanding shares of Common Stock into a larger
number of shares, or (iii) combine its outstanding shares of Common Stock into a
smaller number of shares, the Conversion Price shall be adjusted by multiplying
the Conversion Price by a fraction, the denominator of which shall be the number
of shares of Common Stock outstanding immediately after such dividend,
distribution, subdivision or combination and the numerator of which shall be the
number of shares of Common Stock outstanding immediately prior to such dividend,
distribution, subdivision or combination. An adjustment made pursuant to this
subparagraph (a) shall become effective immediately upon the opening of business
on the day next following the record date in the case of a dividend or
distribution (except as provided in paragraph (h) of this Section 4.4 below) and
shall become effective immediately upon the opening of business on the day next
following the effective date in the case of a subdivision, combination or
reclassification.
(b) In the event the General Partner shall at any time distribute to
all holders of its Common Stock (i) any rights or warrants to subscribe for or
purchase any security of the General Partner (excluding those rights and
warrants issued to all holders of Common Stock entitling them for a period
expiring within 45 days after the record date referred to in subparagraph (c)
below to subscribe for or purchase Common Stock, which rights and warrants are
referred to in and treated under subparagraph (c) below), or any evidence of
indebtedness or other securities of the General Partner (other than Common
Stock) or (ii) cash or other assets (excluding cash dividends or distributions
in an amount not in excess of the greater of either (x) with respect to all cash
dividends or distributions paid on Common Stock after December 31, 1997, the
cumulative amount of funds from operations reported for the General Partner
after December 31, 1997, or (y) with respect to cash dividends or distributions
paid on Common Stock for any fiscal year, the taxable income as reflected on the
General Partner's federal income tax return on Form 1120 REIT (or successor
form) for such fiscal year), then in each such case the Conversion Price shall
be adjusted so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the close of business on the
record date for the determination of the Stockholders entitled to
6
receive such distribution by a fraction, the denominator of which shall be the
Fair Market Value (as defined in Section 4.4(g)) of the Common Stock and the
numerator of which shall be the Fair Market Value of the Common Stock less the
then fair market value (as determined in good faith by the Board of Directors of
the General Partner or a duly authorized committee thereof, which determination
shall be conclusive) of the portion of the rights, warrants, evidence of
indebtedness or other securities, cash or other assets so distributed applicable
to one share of Common Stock. Such adjustment shall become effective immediately
upon the opening of business on the day next following the record date for the
determination of stockholders entitled to receive such distribution.
(c) In the event the General Partner shall at any time issue rights,
options or warrants to all holders of Common Stock entitling them (for a period
expiring within 45 days after the record date mentioned below) to subscribe for
or purchase Common Stock at a price per share less than the Fair Market Value of
Common Stock on the record date for the determination of stockholders entitled
to receive such rights, options or warrants, then the Conversion Price shall be
adjusted so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the close of business on such
record date by a fraction, the numerator of which shall be the sum of (i) the
number of shares of Common Stock outstanding on the close of business on such
record date and (ii) the number of shares of Common Stock that the aggregate
proceeds to the General Partner from the exercise of such rights, options or
warrants for shares of Common Stock would purchase at the Fair Market Value and
the denominator of which will be the sum of number of shares of Common Stock
outstanding on the close of business on such record date and the number of
additional shares of Common Stock offered for subscription or purchase pursuant
to such rights, options or warrants. Such adjustment shall become effective
immediately upon the opening of business on the day next following the record
date for the determination of stockholders entitled to receive such rights,
options or warrants.
(d) Whenever the Conversion Price shall be adjusted as herein
provided, the Partnership shall cause to be filed with the records of the
Partnership a notation that the Conversion Price has been adjusted and setting
forth the adjusted Conversion Price, together with an explanation of the
calculation of the same.
(e) No adjustment in the Conversion Price shall be required unless
such adjustment would require a cumulative increase or decrease of at least 1%
in such price; PROVIDED, HOWEVER, that any adjustment that by reason of this
subparagraph (e) is not required to be made shall be carried forward and taken
into account in any subsequent adjustment until made; and PROVIDED, FURTHER,
that any adjustment shall be required and made in accordance with the provisions
of this Section 4.4 (other than this subparagraph (e)) not later than such time
as may be required in order to preserve the tax-free nature of a distribution to
the holders of Common Units. Notwithstanding any other provisions of this
Section 4.4, the Partnership shall not be required to make any adjustment of the
Conversion Price for the issuance of any Common Stock in connection with the
issuance of Common Stock pursuant to any plan providing for the reinvestment of
dividends or interest payable on securities of the General
7
Partner and the investment of additional optional amounts in shares of Common
Stock under such plan. All calculations under this Section 4.4 shall be made to
the nearest cent with $.005 being rounded upward or to the nearest one-tenth of
a share (with .05 of a share being rounded upward), as the case may be. Anything
in this Section 4.4 to the contrary notwithstanding, the General Partner shall
be entitled, to the extent permitted by law, to make such reductions in the
Conversion Price, in addition to those required by this Section 4.4, as in its
discretion, it shall determine to be advisable in order that any stock
dividends, subdivision of shares, reclassification or combination of shares,
distribution of rights, options or warrants to purchase stock or securities, or
a distribution of other assets (other than cash dividends) hereafter made by the
General Partner to its stockholders shall not be taxable.
(f) If the General Partner shall be party to, or shall have entered
into an agreement for, any transaction (including, without limitation, a merger,
consolidation, statutory share exchange or sale of all or substantially all of
its assets), in each case as a result of which shares of Common Stock generally
shall be converted into the right to receive stock, securities or other property
(including cash or any combination thereof) (a "Transaction"), the Series A
Preferred Units shall, in connection with such Transaction, convert into the
number of Common Units issuable upon conversion of such Series A Preferred Unit
immediately prior to the consummation of such Transaction.
(g) For the purposes of this Section 4.4, "Fair Market Value" shall
mean the average of the last reported sale price (or bid price if there were no
sales) per share of Common Stock as reported on the New York Stock Exchange (or
such other national securities exchange or NASDAQ National Market on which the
Common Stock is traded at the time of such computation) during 5 consecutive
trading days selected by the General Partner commencing not more than 20 trading
days before, and ending not later than the day immediately prior to the "ex"
date with respect to the issuance or distribution requiring such computation.
The term "'ex' date," when used with respect to any issuance or distribution,
means the first day on which the Common Stock trades regular way, without the
right to receive such issuance or distribution, on the exchange or in the
market, as the case may be, used to determine the Fair Market Value. In the
event that, at any time, the Common Stock is not then traded on a national
securities exchange or the NASDAQ National Market then "Fair Market Value" shall
be determined in good faith by the Board of Directors of the General Partner.
(h) In any case in which this Section 4.4 provides that an adjustment
shall become effective on the date next following the record date for an event,
the General Partner may defer until the occurrence of such event (A) issuing to
the holder of Series A Preferred Units converted after such record date and
before the occurrence of such event the additional Common Units issuable upon
such conversion by reason of the adjustment required by such event over and
above the Common Units issuable upon such conversion before giving effect to
such adjustment and (B) fractionalizing any Series A Preferred Units and/or
paying to such holder any amount of cash in lieu of any fraction pursuant to
Section 4.3. Any adjustment of the Conversion Price in accordance with either
paragraph (b) or (c) of this Section 4.4 shall be
8
disregarded if, as, and when the rights to acquire Common Units upon exercise or
conversion of the rights, warrants or options which give rise to such adjustment
expire or are canceled without having been exercised, so that the Conversion
Price effective immediately upon such cancellation or expiration shall be equal
to the Conversion Price in effect immediately prior to the time of the issuance
of the expired or cancelled rights, warrants or options, with such additional
adjustments as would have been made to the Conversion Price had the expired or
cancelled rights, warrants or options never been issued.
(i) There shall be no adjustment of the Conversion Price in case of
the issuance of any shares of Common Stock in a reorganization, acquisition or
other similar transaction except as specifically set forth in this Section 4.4.
If any action or transaction would require adjustment of the Conversion Price
pursuant to more than one paragraph of this Section 4.4, only one adjustment
shall be made, and such adjustment shall be the amount of adjustment that has
the highest absolute value. Notwithstanding anything in this Section 4.4 to the
contrary, no adjustment shall be made to the Conversion Price as a result of the
issuance of rights by the General Partner in connection with the establishment
of a shareholder rights plan (or other comparable plan) so long as the terms of
such plan provide that such rights will attach to the shares of Common Stock
into which the Series A Preferred Stock may be converted at the time of such
conversion.
5. REDEMPTION.
(a) At such time or times as the General Partner exercises its right,
in its sole and absolute discretion, to redeem the outstanding shares of Series
A Preferred Stock and such shares are in fact redeemed, the General Partner
shall cause the Partnership to redeem all of the outstanding Series A Preferred
Units. This redemption shall become effective, without any further action by the
General Partner or the Partnership, on the date and at the time that the
redemption of the Series A Preferred Stock by the General Partner becomes
effective (such date being referred to as the "Series A Preferred Redemption
Date").
(b) On a Series A Redemption Date, each Series A Preferred Unit so
redeemed shall be redeemed in cash or immediately available funds at a price per
Series A Preferred Unit equal to $25.00, plus all accrued but unpaid
distributions (such amount being referred to as the "Series A Preferred
Redemption Amount").
(c) In the event that the funds of the Partnership legally available
for redemption of the Series A Preferred Units on any Series A Preferred
Redemption Date are insufficient to redeem the number of Series A Preferred
Units to be so redeemed on such date, the Partnership shall in good faith use
reasonable efforts as expeditiously as possible to eliminate, or obtain an
exception, waiver or exemption from, any and all restrictions under applicable
law that prevented the Partnership from redeeming all of the Series A Preferred
Units to be redeemed hereunder. At any time thereafter when additional funds of
the Partnership are legally available for the redemption of Series A Preferred
Units, such funds will be used to redeem the balance of such Series A Preferred
Units, or such portion thereof
9
for which funds are available. If any Series A Preferred Units are not redeemed
for the foregoing reason or because the Partnership otherwise failed to pay or
tender to pay the aggregate Series A Preferred Redemption Amount on the Series A
Preferred Units required to be redeemed, all Series A Preferred Units which have
not been redeemed shall remain outstanding and entitled to all the rights and
preferences provided herein.
(d) Upon receipt of payment of the Series A Preferred Redemption
Amount, the holder of the Series A Preferred Units to be redeemed shall
surrender the certificate or certificates representing such Series A Preferred
Units to the Partnership for notation or cancellation consistent with the
provision of Section 4.2(e) hereof.
(e) Notwithstanding anything in this Section 5 to the contrary, no
Series A Preferred Units may be redeemed except from proceeds from the sale of
equity securities of the General Partner (other than the Series A Preferred
Stock), including, but not limited to, shares of Common Stock, shares of
preferred stock, depositary shares, interests, participation or other ownership
interests (however designated) and any rights (other than debt securities
convertible into or exchangeable for equity securities) or options to purchase
any of the foregoing, and which proceeds are contributed as a Capital
Contribution to the Partnership by the General Partner in accordance with the
terms of the Partnership Agreement.
6. VOTING AND CONSENT RIGHTS; AMENDMENT OF TERMS.
(a) The holder of Series A Preferred Units shall have the right, with
the holders of Common Units and any other Units authorized, to vote upon or
consent to each matter on which the holders of Common Units are entitled to vote
or consent, on the basis of one vote or consent for each Common Unit into which
the Series A Preferred Units held by such holder are then convertible (rounded
to the nearest whole number of Units). The holders of Series A Preferred Units
and Common Units shall vote together as one class except as otherwise set forth
herein.
(b) Notwithstanding Section 17.1 of the Partnership Agreement, so long
as any Series A Preferred Units remain outstanding, the General Partner may not
amend the terms of the Series A Preferred Units to affect materially and
adversely the rights, preferences, privileges or voting power of the Series A
Preferred Units unless the terms of the Series A Preferred Stock of the General
Partner are similarly amended and an amendment to these terms of the Series A
Preferred Units is necessary so that the economic interests of the Series A
Preferred Stock and the Series A Preferred Units remain substantially similar.
For purposes of the foregoing and without limitation of the foregoing, (i) the
increase or decrease in the amount of authorized Units of any class or series
including the Series A Preferred Units, (ii) the creation of a new class or
series of Units having rights, preferences, privileges or voting power senior
to, on a parity with or junior to the rights, preferences or privileges of the
Series A Preferred Units in the distribution of assets on any liquidation,
dissolution or winding up of the Partnership and/or in the payment of dividends
and (iii) the entering into of any agreement providing for the actions in (i) or
(ii) above and the taking of any actions in connection with
10
the consummation of any such agreement shall not be deemed to materially and
adversely affect the rights, preferences, privileges or voting power of the
Series A Preferred Units, and the General Partner may amend the terms of the
Series A Preferred Units as it deems advisable, in its sole and absolute
discretion, to reflect such actions. Notwithstanding anything in the terms of
the Series A Preferred Units to the contrary, the holder of Series A Preferred
Units is not entitled to vote or consent as a single class on (i) any
Transaction (as defined in Section 4.4(f), (ii) any transaction (including,
without limitation, a merger, consolidation, statutory share exchange or sale of
all or substantially all of its assets) in which the General Partner or the
Partnership would be the surviving entity (an "Acquisition Transaction"), or
(iii) on any other matter except as specifically provided in this Section 6,
irrespective of the effect such Transaction, Acquisition Transaction, or other
matter may have on the rights, preferences, privileges or voting power of the
Series A Preferred Units.
7. NO PREEMPTIVE OR OTHER RIGHTS.
The holder of Series A Preferred Units shall have no preemptive rights,
including preemptive rights with respect to any Units or other Partnership
Interest of the Partnership convertible into or carrying rights or options to
purchase any such Series A Preferred Units.
8. EXHIBIT A TO PARTNERSHIP AGREEMENT.
In order to duly reflect the issuance of the Series A Preferred Units
provided for herein, the Partnership Agreement is hereby further amended
pursuant to Section 12.3 thereof by deleting EXHIBIT A thereto and replacing
EXHIBIT A attached hereto therefor.
11
IN WITNESS WHEREOF, this Amendment has been executed as of the date first
above written.
XXXXXXX REAL ESTATE, INC.
By: /s/ Xxxxxx X. D'Arcy
------------------------------------------
Xxxxxx X. D'Arcy
Chairman, President and Chief Executive Officer
12
