SECOND AMENDMENT TO FIRST AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF COGDELL SPENCER LP
Exhibit 10.1
SECOND AMENDMENT
TO
FIRST AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
OF
XXXXXXX XXXXXXX XX
This SECOND AMENDMENT TO FIRST AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF
XXXXXXX XXXXXXX XX is made and entered as of December 20, 2010 (the “Amendment”).
Capitalized terms used but not defined herein shall have the meanings ascribed to them in the
Existing Partnership Agreement (as defined below).
RECITALS:
A. | CS Business Trust I, a Maryland statutory trust (the “General Partner”), entered into that certain First Amended and Restated Agreement of Limited Partnership of Xxxxxxx Xxxxxxx XX (the “Partnership”), dated as of November 1, 2005 (the “Existing Partnership Agreement”), as amended by that certain First Amendment to First Amended and Restated Agreement of Limited Partnership of Xxxxxxx Xxxxxxx XX made and entered as of March 10, 2008 (the “First Amendment” and together with the Existing Partnership Agreement, the “Partnership Agreement”), to set forth the agreements with respect to the business and affairs of the Partnership. | ||
B. | The name of the General Partner is, and has been at all times since the date of its formation as a Maryland statutory trust, CS Business Trust I. However, as a result of a scrivener’s error, the name of the General Partner appearing throughout the Partnership Agreement is incorrectly stated as “Xxxxxxx Xxxxxxx Business Trust I,” creating an ambiguity regarding the name of the General Partner. | ||
C. | The name of the Parent Limited Partner is, and has been at all times since the date of its formation as a Maryland statutory trust, CS Business Trust II. However, as a result of a scrivener’s error, the name of the Parent Limited Partner in Article 1 of the Partnership Agreement is incorrectly stated as “Xxxxxxx Xxxxxxx Business Trust II,” creating an ambiguity regarding the name of the Parent Limited Partner. | ||
D. | A Pricing Committee of the Board of Directors (the “Board”) of Xxxxxxx Xxxxxxx Inc., a Maryland corporation (the “Parent”), adopted resolutions at a meeting held on December 10, 2010 classifying and designating 2,990,000 shares of Preferred Stock (as defined in the Articles of Amendment and Restatement of the Parent (the “Charter”)) as Series A Preferred Stock (as defined below). | ||
E. | The Parent filed Articles Supplementary to the Charter with the State Department of Assessments and Taxation of Maryland, effective on December 20, 2010, establishing the Series A Preferred Stock, with such preferences, rights, powers, restrictions, limitations as to distributions, qualifications and terms and conditions of redemption as described in the Series A Articles Supplementary (as defined below). | ||
F. | On December 20, 2010, the Parent issued 2,600,000 shares of the Series A Preferred Stock; as of the date hereof, the Parent is authorized to issue an additional 390,000 shares of Series A Preferred Stock. |
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G. | The General Partner has determined that, in connection with the Parent’s issuance of the Series A Preferred Stock, it is necessary and desirable to amend the Partnership Agreement to create additional Partnership Units in the form of Series A Preferred Partnership Units (as defined below) having designations, preferences, conversion and other rights which are substantially the same as the designations, preferences, conversion and other rights of the Series A Preferred Stock. | ||
H. | Pursuant to Section 7.3.C of the Existing Partnership Agreement (“Section 7.3.C”), the General Partner has the exclusive power, without the prior consent of the Limited Partners, to amend the Existing Partnership Agreement to, among other things, (1) issue additional Partnership Interests in accordance with Section 4.3 of the Existing Partnership Agreement and to set forth in the Existing Partnership Agreement the rights, powers, duties and preferences of the holders of any additional Partnership Units issued pursuant to the Existing Partnership Agreement and (2) reflect a change that is of an inconsequential nature and does not adversely affect the Limited Partners in any material respect, and further, pursuant to Section 7.3.C, the General Partner shall provide notice to the Limited Partners when such action with respect to (1) and (2) set forth above is taken. |
NOW, THEREFORE, the General Partner desires to effect this Amendment to the Existing
Partnership Agreement as provided herein:
1. Definitions. Article 1 of the Existing Partnership Agreement is hereby amended to add
the following definitions:
“Common Partnership Interest” shall mean an ownership interest in the Partnership, other
than a Preferred Partnership Interest, and includes any and all benefits to which the holder of
such an ownership interest may be entitled as provided in this Agreement or the Act, together
with all obligations of such person to comply with the terms and provisions of this Agreement
and the Act.
“Common Partnership Unit” shall mean a fractional, undivided share of the Common
Partnership Interests of all Partners issued hereunder.
“NASDAQ” shall mean the NASDAQ Stock Market or any successor thereto.
“NYSE” shall mean the New York Stock Exchange or any successor thereto.
“Preferred Partnership Interest” shall mean an ownership interest in the Partnership
evidenced by a designated series of Preferred Units, having a preference in payment of
distributions or on liquidation as determined by the General Partner for such series of
Preferred Units and as set forth in an amendment to this Agreement, and includes all benefits to
which the holder of such an ownership interest may be entitled as provided in this Agreement or
the Act, together with all obligations of such Person to comply with the terms and provisions of
this Agreement and the Act.
“Series A Articles Supplementary” shall mean the Articles Supplementary Establishing and
Fixing the Rights and Preferences of a Series of Preferred Stock, designating the rights and
preferences of the 8.500% Series A Cumulative Redeemable Perpetual Preferred Stock, filed as
part of the Parent’s Charter with the State Department of Assessments and Taxation of Maryland,
effective on December 20, 2010.
“Series A Preferred Partnership Interests” shall mean an ownership interest in the
Partnership evidenced by the Series A Preferred Partnership Units, having a preference in
payment of distributions or on liquidation as set forth in this Amendment.
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“Series A Preferred Partnership Units” shall mean the series of Preferred Units established
pursuant to this Amendment, representing a fractional, undivided share of the Series A Preferred
Partnership Interests of all Partners issued under the Partnership Agreement.
“Series A Preferred Stock” shall mean the 8.500% Series A Cumulative Redeemable Perpetual
Preferred Stock of the Parent, with such preferences, rights, voting powers, restrictions,
limitations as to distributions, qualifications and terms and conditions of redemption as
described in the Series A Articles Supplementary.
2. Series A Preferred Partnership Units. In accordance with Section 4.3 of the Partnership
Agreement, set forth in Exhibit F hereto are the terms and conditions of the Series A Preferred
Partnership Units (the “Partnership Unit Designation”) hereby established and issued to the Parent
in consideration of its contribution to the Partnership of the proceeds of the issuance and sale of
the Series A Preferred Stock by the Parent. The Partnership Agreement is amended to incorporate
the Partnership Unit Designation as Exhibit F thereto and to replace Exhibit A thereto with a
revised Exhibit A to reflect the issuance of the Series A Preferred Partnership Units.
3. Name of General Partner. All references to “Xxxxxxx Xxxxxxx Business Trust I” in the
Partnership Agreement, including, but not limited to, the recitals thereto, are hereby deleted in
their entirety and replaced with “CS Business Trust I.”
4. Name of Parent Limited Partner. All references to “Xxxxxxx Xxxxxxx Business Trust II”
in the Partnership Agreement, including, but not limited to, the recitals thereto, are hereby
deleted in their entirety and replaced with “CS Business Trust II.”
5. Partnership Agreement. Except as set forth herein, the Partnership Agreement shall
remain in full force and effect.
6. No Oral Modification. This Amendment may not be changed orally, but only by an
agreement in writing executed by the parties hereto.
7. Governing Law. This Amendment shall be governed by, and construed in accordance with,
the laws of the State of Delaware.
8. Severability. If any provision of this Amendment is or becomes invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not be affected thereby.
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed
this Amendment as of the date first written above.
GENERAL PARTNER: CS BUSINESS TRUST I, a Maryland statutory trust |
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By: | /s/ Xxxxxxx X. Xxxxx | |||
Name: | Xxxxxxx X. Xxxxx | |||
Title: | President and CEO | |||
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EXHIBIT F
PARTNERSHIP UNIT DESIGNATION
A. Designation and Number. A series of Preferred Units, designated as Series A
Preferred Partnership Units, is hereby established. The number of Series A Preferred Partnership
Units shall be 2,990,000.
B. Rank. The Series A Preferred Partnership Units shall, with respect to rights to
receive distributions and to participate in distributions or payments upon liquidation, dissolution
or winding up of the Partnership, rank (a) senior to the Common Partnership Units and any Junior
Units of the Parent, now or hereafter issued and outstanding; (b) on a parity with any other
Partnership Units of the Partnership, now or hereafter issued and outstanding, other than
Partnership Units referred to in clauses (a) and (c) (“Parity Units”); and (c) junior to
all Partnership Units of the Partnership the terms of which specifically provide that such
Partnership Units rank senior to the Series A Preferred Partnership Units.
C. Distributions.
(i) Subject to the rights of holders of any Preferred Units ranking senior to the Series A
Preferred Partnership Units as to the payment of distributions, the Parent, in its capacity as
the holder of the then outstanding Series A Preferred Partnership Units, shall be entitled to
receive, when, as and if authorized by the General Partner, out of funds legally available for
payment of distributions, cumulative cash distributions at the rate of 8.500% per annum of the
$25 liquidation preference of each Series A Preferred Partnership Unit (equivalent to $2.125 per
annum per Series A Preferred Partnership Unit).
(ii) Distributions on each outstanding Series A Preferred Partnership Unit shall be
cumulative from and including the date of original issuance, and shall be payable (i) for the
period from December 20, 2010 to March 1, 2011 on March 1, 2011, and (ii) for each quarterly
distribution period thereafter, quarterly in equal amounts in arrears on the 1st of
each March, June, September and December, commencing on June 1, 2011 (each such day being
hereinafter called a “Series A Distribution Payment Date”) at the then applicable annual
rate; provided, however, that if any Series A Distribution Payment Date falls on any day other
than a Business Day (as defined in the Series A Articles Supplementary), the distribution which
would otherwise have been payable on such Series A Distribution Payment Date may be paid on the
next succeeding Business Day with the same force and effect as if paid on such Series A
Distribution Payment Date, and no interest or other sums shall accrue on the amount so payable
from such Series A Distribution Payment Date to such next succeeding Business Day. Each
distribution is payable to holders of record as they appear on the Partnership Unit records of
the Partnership at the close of business on the record date, not exceeding 30 days preceding the
applicable Series A Distribution Payment Date, as shall be fixed by the General Partner.
Distributions shall accumulate from the most recent Series A Distribution Payment Date to which
distribution have been paid, whether or not there shall be funds legally available for the
payment of such distributions, whether the Partnership has earnings or whether such
distributions are authorized. No interest, or sum of money in lieu of interest, shall be
payable in respect of any distribution payment or payments on the Series A Preferred Partnership
Units that may be in arrears. Holders of the Series A Preferred Partnership Units shall not be
entitled to any distributions, whether payable in cash, property or stock, in excess of full
cumulative distributions, as herein provided, on the Series A Preferred Partnership Units.
Distributions payable on the Series A Preferred Partnership Units for any period greater or less
than a full distribution period shall be computed on the basis of a 360-day year consisting of
twelve 30-day months. Distributions payable on the Series A Preferred Partnership Units for
each full distribution period shall be computed by dividing the applicable annual
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distribution rate by four. After full cumulative distributions on the Series A Preferred
Partnership Units have been paid or declared and funds therefor set aside for payment with
respect to a distribution period, the holders of Series A Preferred Partnership Units shall not
be entitled to any further distributions with respect to that distribution period.
(iii) No distributions on the Series A Preferred Partnership Units shall be authorized and
declared by the General Partner or paid or set apart for payment by the General Partner at such
time as the terms and provisions of any agreement of the General Partner, including any
agreement relating to its indebtedness, 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.
(iv) So long as any Series A Preferred Partnership Units are outstanding, no distributions,
except as described in the immediately following sentence, shall be authorized and declared or
paid or set apart for payment on any series or class or classes of Parity Units for any period
unless full cumulative distributions have been declared and paid or are contemporaneously
declared and paid or declared and a sum sufficient for the payment thereof set apart for such
payment on the Series A Preferred Partnership Units for all prior distribution periods. When
distributions are not paid in full or a sum sufficient for such payment is not set apart, as
aforesaid, all distributions authorized and declared upon the Series A Preferred Partnership
Units and all distributions authorized and declared upon any other series or class or classes of
Parity Units shall be authorized and declared ratably in proportion to the respective amounts of
distributions accumulated and unpaid on the Series A Preferred Partnership Units and such Parity
Units.
(v) So long as any Series A Preferred Partnership Units are outstanding, no distributions
(other than distributions paid solely in Junior Units of, or in options, warrants or rights to
subscribe for or purchase, Junior Units) shall be authorized and declared or paid or set apart
for payment or other distribution authorized and declared or made upon Junior Units, nor shall
any Junior Units be redeemed, purchased or otherwise acquired (other than a redemption, purchase
or other acquisition of Partnership Units made for purposes of and in compliance with
requirements of an employee incentive or benefit plan of the Parent or any subsidiary, or a
conversion into or exchange for Junior Units or redemptions for the purpose of preserving the
Parent’s qualification as a REIT (as defined in the Charter), or redemptions of Partnership
Units pursuant to Article 8 of the Existing Partnership Agreement), for any consideration (or
any monies to be paid to or made available for a sinking fund for the redemption of any such
units) by the Parent, directly or indirectly (except by conversion into or exchange for Junior
Units), unless in each case full cumulative distributions on all outstanding shares of Series A
Preferred Partnership Units and any Parity Units at the time such dividends are payable shall
have been paid or set apart for payment for all past distribution periods with respect to the
Series A Preferred Partnership Units and all past distribution periods with respect to such
Parity Units.
(vi) Any distribution payment made on the Series A Preferred Partnership Units shall first
be credited against the earliest accrued but unpaid distribution due with respect to such Series
A Preferred Partnership Units which remains payable.
(vii) Except as provided herein, the Series A Preferred Partnership Units shall not be
entitled to participate in the earnings or assets of the Partnership.
D. Liquidation Preference.
(i) 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
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made to or set apart for the holders of Junior Units, the holders of the Series A Preferred
Partnership Units shall be entitled to receive $25.00 per Series A Preferred Partnership Unit
(the “Liquidation Preference”) plus an amount per Series A Preferred Partnership Unit
equal to all distributions (whether or not earned or declared) accumulated and unpaid thereon
to, but not including, the date of final distribution to such holders; but such holders of the
Series A Preferred Partnership Units shall not be entitled to any further payment. If, upon any
such liquidation, dissolution or winding up of the Partnership, the assets of the Partnership,
or proceeds thereof, distributable among the holders of the Series A Preferred Partnership Units
shall be insufficient to pay in full the preferential amount aforesaid and liquidating payments
on any other Parity Units, then such assets, or the proceeds thereof, shall be distributed among
the holders of such Series A Preferred Partnership Units and any such other Parity Units ratably
in accordance with the respective amounts that would be payable on such Series A Preferred
Partnership Units and any such other Parity Units if all amounts payable thereon were paid in
full. For the purposes of this Section D, none of (i) a consolidation or merger of the
Partnership with one or more entities, (ii) a statutory Partnership Unit exchange or (iii) a
sale or transfer of all or substantially all of the Partnership’s assets shall be deemed to be a
liquidation, dissolution or winding up, voluntary or involuntary, of the Partnership.
(ii) Subject to the rights of the holders of Parity Units, upon any liquidation,
dissolution or winding up of the Partnership, after payment shall have been made in full to the
holders of the Series A Preferred Partnership Units, as provided in this Section D, any
series or class or classes of Junior Units shall, subject to any respective terms and provisions
applying thereto, be entitled to receive any and all assets remaining to be paid or distributed,
and the holders of the Series A Preferred Partnership Units shall not be entitled to share
therein.
E. Redemption.
(a) In connection with the redemption by the Parent of any shares of Series A Preferred
Stock in accordance with the provisions of the Series A Articles Supplementary, the
Partnership shall provide cash to the Parent for such purpose which shall be equal to the
redemption price (as set forth in the Series A Articles Supplementary), plus any and all
accumulated and unpaid dividends on the Series A Preferred Stock (whether or not earned or
declared), to, but not including, the redemption date, and one Series A Preferred
Partnership Unit shall be concurrently redeemed with respect to each share of Series A
Preferred Stock so redeemed by the Parent. From and after the applicable redemption date,
the Series A Preferred Partnership Units so redeemed shall no longer be outstanding and all
rights hereunder, to distributions or otherwise, with respect to such Series A Preferred
Partnership Units shall cease. Any Series A Preferred Partnership Units so redeemed may be
reissued to the Parent and/or General Partner at such time as the Parent reissues a
corresponding number of shares of Series A Preferred Stock so redeemed or repurchased, in
exchange for the contribution by the Parent to the Partnership of the proceeds from such
reissuance.
(b) Following any such redemption by the Parent pursuant to this Section E, the
General Partner shall make such revisions to the Partnership Agreement as it determines are
necessary to reflect such redemption.
F. Voting Rights. Except as required by applicable law or the Partnership Agreement,
the holder of the Series A Preferred Partnership Units, as such, shall have no voting rights.
G. Conversion. The Series A Preferred Partnership Units are not convertible into or
exchangeable for any other property or securities of the Corporation, except as provided herein.
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(a) In the event of a conversion of the Series A Preferred Stock into REIT Shares, upon
conversion of such Series A Preferred Stock, the Partnership shall convert an equal whole
number of the Series A Preferred Partnership Units into Common Partnership Units as such
Series A Preferred Stock are converted into REIT Shares. In the event of a conversion of
the Series A Preferred Stock into REIT Shares, to the extent the Parent is required to pay
cash in lieu of fractional REIT Shares pursuant to the Series A Articles Supplementary in
connection with such conversion, the Partnership shall distribute an equal amount of cash to
the Parent, either directly or through the General Partner.
(b) Following any such conversion by the Parent pursuant to this Section G, the
General Partner shall make such revisions to the Partnership Agreement as it determines are
necessary to reflect such conversion.
H. Allocations. Allocations of the Partnership’s items of income, gain, loss and
deduction shall be allocated among holders of Series A Preferred Partnership Units in accordance
with Article VI of the Partnership Agreement.
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