Exhibit 10.19
AMENDMENT TO SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
XXXXXX HOTEL PROPERTIES, L.P.
THIS AMENDMENT TO THE SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP OF XXXXXX HOTEL PROPERTIES, L.P. (this "Amendment") is made as of
February 1, 1999.
INTRODUCTION:
WHEREAS, Xxxxxx Lodging Company, the general partner (the "General
Partner") of Xxxxxx Hotel Properties, L.P. (the "Partnership"), desires to issue
Class A Cumulative Preferred Shares, Series 1999-A (the "Preferred Shares")
having the designations, preferences and rights set forth in Exhibit A hereto;
WHEREAS, the General Partner will contribute to the Partnership the
proceeds resulting from any issuance of Preferred Shares;
WHEREAS, the General Partner desires to, with the Limited Partners,
amend the Second Amended and Restated Agreement of Limited Partnership (the
"Partnership Agreement") to create a class of preferred units having economic
interests substantially similar to the Preferred Shares;
NOW, THEREFORE, in accordance with Article XI, Section 11.1 of the
Partnership Agreement, the Partnership Agreement is amended as follows:
A. DEFINED TERMS. Each term used in this Amendment that is defined in
the Partnership Agreement has the meaning in this Amendment that is ascribed to
that term in the Partnership Agreement. On and after the effective date of this
Amendment, each reference in the Partnership Agreement to "this Agreement",
"hereunder", "hereof", or words of like import referring to the Partnership
Agreement shall mean and refer to the Partnership Agreement as amended hereby.
The terms of this Amendment shall modify and amend the terms of the Partnership
Agreement to the extent expressed herein; but every other term, condition,
covenant, representation and warranty contained in the Partnership Agreement is
hereby ratified and affirmed and shall remain unchanged unless expressly
modified or amended hereby.
B. PREFERRED UNITS. The Partnership is authorized to issue to the
General Partner Series 1999-A Preferred Units (the "Preferred Units"). Upon the
issuance by the General Partner of any Preferred Shares, the General Partner
shall contribute to the Partnership the proceeds from that issuance in exchange
for a number of Preferred Units equal to the number of Preferred Shares issued
by the General Partner. Upon the right to receive any payments from the General
Partner to the holders of the Preferred Shares of dividends, or of amounts on
redemption, liquidation or conversion, the holders of the Preferred Units shall
be entitled to receive from the Partnership an amount of cash equal to the value
to be paid to the holders of the Preferred Shares
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prior to the payment of any such amounts to the holders of units that are not
Preferred Units; all those payments being made to the extent necessary to cause
the holders of Preferred Shares and Preferred Units to have substantially the
same economic rights and preferences. Upon redemption, purchase or other
acquisition by the General Partner of any of the Preferred Shares, the
Partnership shall redeem an equal number of Preferred Units. Upon any conversion
of the Preferred Shares into Common Shares, an equal number of the Preferred
Units shall automatically be converted into a number of Partnership Units equal
to the number of Common Shares issued upon the conversion of the Preferred
Shares. Upon the issuance of Preferred Shares at any time and from time to time,
the General Partner shall take all such actions as may be necessary to ensure
that the Preferred Units of the Partnership held by the General Partner have the
same economic rights and preferences as the outstanding Preferred Shares, all as
set forth in the Certificate of Amendment to the Amended and Restated Articles
of Incorporation dated as of February 1, 1999.
IN WITNESS WHEREOF, the parties have hereunto set their hands as of the
day first written above.
GENERAL PARTNER:
XXXXXX LODGING COMPANY,
an Ohio corporation
/s/ Xxxxxx X. Xxxxxx
By:
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Exhibit A
Terms of Class A Cumulative Preferred Shares, Series 1999-A
CERTIFICATE OF AMENDMENT
TO THE
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
XXXXXX LODGING COMPANY
Xxxxxx X. Xxxxxx, Secretary, of Xxxxxx Lodging Company, an Ohio
corporation (the "Corporation"), does hereby certify that the Executive
Committee of the Board of Directors of the Corporation adopted the following
resolution to amend the Amended and Restated Articles of Incorporation (the
"Articles") of the Corporation by written action pursuant Section 1701.63(D) of
the Ohio Revised Code and pursuant to the authority granted by Section
1701.70(B)(1) of the Ohio Revised Code and Section I.1. of Division A of the
Articles:
RESOLVED, that the Amended and Restated Articles of Incorporation of
the Corporation be, and they hereby are, amended by adding at the end of
Division A.I. of Article FOURTH a new Section 6 that reads as follows:
SECTION 6. CLASS A CUMULATIVE PREFERRED SHARES, SERIES 1999-A.
A. DESIGNATION AND AMOUNT. Of the 5,000,000 authorized Class A
Cumulative Preferred Shares, 75,000 are designated as "Class A Cumulative
Preferred Shares, Series 1999-A" (the "Series 1999-A Preferred Shares"). The
Series 1999-A Preferred Shares have the express terms set forth in this Division
as being applicable to all Class A Cumulative Preferred Shares as a class and,
in addition, the following express terms. The number of Series 1999-A Preferred
Shares may be increased or decreased by resolution of the Board of Directors and
by the filing of a certificate of amendment pursuant to the General Corporation
Law of the State of Ohio stating that the increase or reduction has been so
authorized, but no decrease may reduce the number of Series 1999-A Preferred
Shares to a number less than that of the Series 1999-A Preferred Shares then
outstanding plus the number of Series 1999-A Preferred Shares issuable upon
exercise of outstanding rights, options or warrants or upon conversion of
outstanding securities issued by the Corporation.
B. DIVIDENDS AND DISTRIBUTIONS.
(1) Subject to the rights of the holders of any series of preferred
shares (or any similar shares) ranking prior to the Series 1999-A Preferred
Shares with respect to dividends, the holders of Series 1999-A Preferred Shares,
in preference to the holders of Common Shares and of any other shares ranking
junior to the Series 1999-A Preferred Shares, will be entitled to receive, when,
as and if declared by the Board of Directors out of funds legally available for
the purpose, (1) quarterly dividends payable in cash on the same day as the
quarterly dividend payment date for any regular quarterly dividend payable on
the Common Shares with respect to the same period or, if no such regular
quarterly dividend is payable on the Common Shares, on the fifth day of May,
August, November and February in each year (each such date, a "Quarterly
Dividend Payment Date"), commencing on the first Quarterly Dividend Payment Date
after the first issuance of a Series 1999-A Preferred Share or fraction thereof,
in
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an amount per share (rounded to the nearest cent) equal to the greater of (a)
$47.00 or (b) subject to adjustment as hereinafter set forth, 100 times the per
share amount of all regular quarterly cash dividends, and 100 times the per
share value of all regular quarterly noncash dividends or other distributions
(as determined by the Board of Directors in good faith), other than any dividend
payable in Common Shares or a subdivision of the outstanding Common Shares (by
reclassification or otherwise), declared on the Common Shares with respect to
the same period, and (2) if a dividend or distribution other than a regular
quarterly dividend and other than a dividend payable in Common Shares or a
subdivision of the outstanding Common Shares (by reclassification or otherwise)
is authorized, declared or paid to the holders of Common Shares (including
without limitation a dividend or distribution of cash, rights, options or other
securities or any noncash property), a per share cash dividend in an amount
equal to the value of the per share amount payable on each Common Share (as
determined by the Board of Directors in good faith) multiplied by the Dividend
Multiple (as defined below), payable on the same day as the payment date for
that dividend on the Common Shares. The multiple of dividends declared on the
Common Shares to which holders of the Series 1999-A Preferred Shares are
entitled, which is 100 initially but which will be adjusted from time to time as
hereinafter provided, is hereinafter referred to as the "Dividend Multiple." If
the Company at any time after February 1, 1999: (i) declares or pays any
dividend on the Common Shares payable in Common Shares, or (ii) effects a
subdivision or combination or consolidation of the outstanding Common Shares (by
reclassification or otherwise than by payment of a dividend in Common Shares)
into a greater or lesser number of Common Shares, then in each such case the
Dividend Multiple will thereafter be the Dividend Multiple applicable
immediately prior to that event multiplied by a fraction, the numerator of which
is the number of Common Shares outstanding immediately after that event and the
denominator of which is the number of Common Shares that were outstanding
immediately prior to that event.
(2) The Board of Directors may fix in accordance with applicable law a
record date for the determination of holders of Series 1999-A Preferred Shares
entitled to receive payment of a dividend or other distribution declared
thereon, which will be the same day as the record date for any dividend or
distribution payable on the Common Shares with respect to the same period if any
such dividend or distribution is so payable. Dividends on the Series 1999-A
Preferred Shares will accrue and be cumulative (i) with respect to shares
included in the initial issuance of Series 1999-A Preferred Shares and shares
issued any time thereafter to and including the record date for the payment of
the first dividend on the shares included in that initial issuance (the "First
Record Date"), from the date of that initial issuance, (ii) with respect to
shares issued any time after the First Record Date and not between a record date
and the dividend payment date to which that record date applies (that period,
the "Ex-dividend Period"), from the dividend payment date immediately preceding
the date of issue of those shares, and (iii) with respect to shares issued after
the First Record Date and during an Ex-dividend Period, from the dividend
payment date on which that Ex-dividend Period ends. Accrued but unpaid dividends
will not bear interest. Dividends paid on the Series 1999-A Preferred Shares in
an amount less than the total amount of dividends at the time accrued and
payable on those shares will be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding. The amount of accrued and unpaid
dividends on any Series 1999-A Preferred Share at any date is the amount of any
dividends payable thereon in accordance with this Section 6.B. (whether or not
declared) that have not been paid.
C. REDEMPTION. The Series 1999-A Preferred Shares are redeemable, in
whole but not in part, in accordance with Section 3 of Division A.1.of Article
FOURTH, at any time on or after (but not before) the fifth anniversary of the
initial issuance of a Series 1999-A Preferred Share, at the option of the Board
of Directors, upon payment of an amount in cash for each share redeemed equal to
the Conversion Multiple (as defined in Section E.1., below) times the Adjusted
Share Price, together with all accrued and unpaid dividends thereon to the
redemption date (the "Redemption Price"). The Board of Directors may, at its
option, pay all or any portion of the Redemption Price for any Series 1999-A
Preferred Shares redeemed in accordance with this Section 6.C. by delivering to
the holder thereof the
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number of Common Shares derived by dividing the portion of the redemption price
to be so paid by the Adjusted Share Price, so long as that form of payment will
not result in the holder beneficially owning more than nine percent (9.0%) of
the total number of the outstanding Common Shares (determined pursuant to
Section 13(d) of the Securities Exchange Act of 1934, as amended), or violating
Division C of this Article FOURTH, whichever is more restrictive. For purposes
of this Section 6.C., "Adjusted Share Price" means a dollar amount equal to the
average last sale price (or bid price if there were no sales) per Common Share
on the NYSE over the twenty-one (21) days on which the NYSE is open and for
which trades in Common Shares are reported immediately preceding the date on
which the Corporation delivers the applicable redemption notice (adjusted to
take into account any splits, combinations, reclassifications, or other changes
in the Corporation's capitalization that occur between the date of that notice
and the redemption date). If the Common Shares are no longer trading on the
NYSE, then the Adjusted Share Price will be determined using the prices reported
on the exchange or automated quotation system on which the Common Shares then
trade. Each holder of Series 1999-A Preferred Shares may exercise the conversion
rights described in Section 6.E. for those shares at any time prior to the date
set for redemption of those shares.
D. LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any liquidation
(voluntary or otherwise), dissolution or winding up of the Corporation, no
distribution may be made (x) to the holders of shares ranking junior (either as
to dividends or upon liquidation, dissolution or winding up) to the Series
1999-A Preferred Shares unless, prior thereto, the holders of Series 1999-A
Preferred Shares shall have received an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment, plus an amount equal to the greater of (1) $1,648 per share or (2)
an aggregate amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate amount to be distributed
per share to holders of Common Shares, or (y) to the holders of shares ranking
on a parity (either as to dividends or upon liquidation, dissolution or winding
up) with the Series 1999-A Preferred Shares, except distributions made ratably
on the Series 1999-A Preferred Shares and all other such parity shares in
proportion to the total amounts to which the holders of all such shares are
entitled upon such liquidation, dissolution or winding up (the holders of Series
1999-A Preferred Shares being entitled to receive, for this purpose, the amount
determined pursuant to clause (x) of this sentence). If the Corporation at any
time after February 1, 1999 (i) declares or pays any dividend on Common Shares
payable in Common Shares, or (ii) effects a subdivision or combination or
consolidation of the outstanding Common Shares (by reclassification or otherwise
than by payment of a dividend in Common Shares) into a greater or lesser number
of Common Shares, then in each such case the aggregate amount per share to which
holders of Series 1999-A Preferred Shares were entitled immediately prior to
such event under clause (x)(2) of the immediately preceding sentence will be
adjusted by multiplying that amount by a fraction, the numerator of which is the
number of Common Shares outstanding immediately after that event and the
denominator of which is the number of Common Shares that were outstanding
immediately prior to that event.
Neither the consolidation of nor merger of the Corporation with or into
any other corporation or corporations, nor the sale or other transfer of all or
substantially all of the assets of the Corporation, will be considered a
liquidation, dissolution or winding up of the Corporation within the meaning of
this paragraph D.
E. CONVERSION RIGHTS.
(1) The holders of Series 1999-A Preferred Shares have the right, at
their option, to convert all or any portion of their Series 1999-A Preferred
Shares into Common Shares at any time and from time to time, on the basis set
forth below, but (a) no such holder may so convert Series 1999-A Preferred
Shares if, immediately after that conversion, that holder would be the record or
beneficial owner of more than nine percent (9.0%) of the total number of the
outstanding Common Shares (determined
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pursuant to Section 13(d) of the Securities Exchange Act of 1934, as amended),
or violate Division C of this Article FOURTH, whichever is more restrictive, and
(b) the right to convert Series 1999-A Preferred Shares that have been called
for redemption pursuant to Section 6.C. terminates at the close of business on
the redemption date for those Series 1999-A Preferred Shares pursuant to Section
6.C., unless the Corporation defaults in making payment of any cash payable on
that redemption. Each Series 1999-A Preferred Share is initially convertible
into 100 Common Shares (the number of Common Shares into which each Series
1999-A Preferred Share is convertible, the "Conversion Multiple"). If the
Corporation, at any time after February 1, 1999: (i) declares or pays any
dividend on the Common Shares payable in Common Shares, or (ii) effects a
subdivision or combination or consolidation of the outstanding Common Shares (by
reclassification or otherwise than by payment of a dividend in Common Shares)
into a greater or lesser number of Common Shares, then in each such case the
Conversion Multiple will thereafter be the Conversion Multiple applicable
immediately prior to that event multiplied by a fraction, the numerator of which
is the number of Common Shares outstanding immediately after that event and the
denominator of which is the number of Common Shares that were outstanding
immediately prior to that event.
(2) In order for a holder of Series 1999-A Preferred Shares to convert
Series 1999-A Preferred Shares into Common Shares, that holder shall surrender
the certificate or certificates for those Series 1999-A Preferred Shares at the
office of the transfer agent for the Series 1999-A Preferred Shares (or at the
principal office of the Corporation if the Corporation serves as its own
transfer agent), together with written notice that the holder elects to convert
all or any number of the Series 1999-A Preferred Shares represented by that
certificate or certificates. That notice must state the holder's name or the
names of the nominees in which the holder wishes the certificate or certificates
for Common Shares to be issued and the number of Series 1999-A Preferred Shares
to be converted. If required by the Corporation, certificates surrendered for
conversion must be endorsed or accompanied by a written instrument or
instruments of transfer, in form satisfactory to the Corporation, duly executed
by the registered holder or his or its attorney duly authorized in writing. The
date of receipt of those certificates and notice by the transfer agent or by the
Corporation (if the Corporation serves as its own transfer agent) will be the
conversion date (the "Conversion Date") and the conversion will be effective as
of the close of business on the Conversion Date. The Corporation shall, as soon
as practicable after the Conversion Date, issue and deliver at that office, or
send, on the converting holder's written instruction, to that holder or to his
or its nominees, a certificate or certificates for the number of Common Shares
to which that holder is entitled, together with cash in lieu of any fraction of
a share.
(3) The Corporation shall at all times when any Series 1999-A Preferred
Shares are outstanding, reserve and keep available out of its authorized but
unissued shares, for the purpose of effecting the conversion of the Series
1999-A Preferred Shares, such number of its duly authorized Common Shares as are
from time to time sufficient to effect the conversion of all outstanding Series
1999-A Preferred Shares.
(4) Upon any conversion effected in accordance with this Section 6.E.,
the Corporation shall pay all accrued and unpaid dividends on the Series 1999-A
Preferred Shares surrendered for conversion.
(5) All Series 1999-A Preferred Shares that have been surrendered for
conversion as herein provided will no longer be considered outstanding, and all
rights with respect to those shares, including the rights, if any, to receive
notices and to vote, will cease and terminate at the close of business on the
Conversion Date, except only the right of the holders thereof to receive Common
Shares in exchange therefor and the dividend payment provided for in paragraph
(4), above. If certificates representing more than one Series 1999-A Preferred
Share are surrendered for conversion at one time by the same holder, the number
of Common Shares issuable on conversion thereof will be computed on the basis of
the aggregate number of Series 1999-A Preferred Shares so surrendered.
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F. FRACTIONAL SHARES. Series 1999-A Preferred Shares may be issued in
whole shares or in any fraction of a share, which will entitle the holder, in
proportion to that holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions and have the benefit of all
other rights of holders of Series 1999-A Preferred Shares. In lieu of issuing
fractional shares of less than one one-hundredth (1/100) of a Preferred Share,
the Corporation may elect to make a cash payment in an amount equal to the same
fraction of the last sale price (or bid price if there were no sales) per Common
Share on the New York Stock Exchange on the business day that immediately
precedes the Conversion Date or, if the Common Shares are not the listed on the
New York Stock Exchange, of the market price per share determined using the
prices reported on the exchange or automated quotation system on which the
Common Shares then trade, as equitably adjusted to reflect any change or
adjustment to the Conversion Multiple after February 1, 1999.
G. CERTAIN TRANSACTIONS. If the Corporation is a party to any
transaction (including without limitation a merger, consolidation, statutory
share exchange, self tender offer for all or substantially all Common Shares
outstanding, sale of all or substantially all of the Corporation's assets or
recapitalization of the Common Shares but excluding the payment of any dividend
payable in Common Shares or a subdivision, combination or consolidation of the
outstanding Common Shares (by reclassification or otherwise)) (each of the
foregoing being referred to herein as a "Transaction"), in each case as a result
of which Common Shares are converted into the right to receive shares,
securities or other property (including cash or any combination thereof), each
Series 1999-A Preferred Share that is not redeemed or converted into the right
to receive shares, securities or other property in connection with that
Transaction will thereafter be convertible into the kind and amount of shares,
securities and other property (including cash or any combination thereof)
receivable upon the consummation of that Transaction by a holder of that number
of Common Shares into which one Series 1999-A Preferred Share was convertible
immediately prior to that Transaction, assuming that holder of Common Shares (i)
is not a Person with which the Corporation consolidated or into which the
Corporation merged or that merged into the Corporation or to which that sale or
transfer was made, as the case may be (a "Constituent Person"), or an affiliate
of a Constituent Person and (ii) failed to exercise his or her rights of
election, if any, as to the kind or amount of shares, securities and other
property (including cash) receivable upon that Transaction (but if the kind or
amount of shares, securities and other property (including cash) receivable upon
that Transaction is not the same for each Common Share held immediately prior to
that Transaction by other than a Constituent Person or an affiliate thereof and
in respect of which those rights of election have not been exercised
("Non-Electing Share"), then for the purpose of this Section 6.G., the kind and
amount of shares, securities and other property (including cash) receivable upon
that Transaction by each Non-Electing Share will be considered to be the kind
and amount so receivable per share by a plurality of the Non-Electing Shares).
The Corporation shall not be a party to any Transaction unless the terms of that
Transaction are consistent with the provisions of this Section 6.G. and it shall
not consent or agree to the occurrence of any Transaction until the Corporation
has entered into an agreement with the successor or purchasing entity, as the
case may be, for the benefit of the holders of the Series 1999-A Preferred
Shares that will contain provisions enabling the holders of the Series 1999-A
Preferred Shares that remain outstanding after that Transaction to convert their
Series 1999-A Preferred Shares into the consideration received by holders of
Common Shares at the Conversion Multiple in effect immediately prior to that
Transaction. The provisions of this Section 6.G. similarly apply to successive
Transactions.
H. NOTICE. Whenever the Dividend Multiple or the Conversion Multiple is
adjusted as herein provided, the Corporation shall promptly deliver to each
holder of the Series 1999-A Preferred Shares, at that holder's last address
shown on the share records of the Corporation, a notice of that adjustment,
setting forth the adjusted Dividend Multiple or Conversion Multiple, as
applicable, and the effective date of that adjustment and a brief statement of
the facts requiring that adjustment.
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IN WITNESS WHEREOF, the undersigned has executed this instrument as of
February 1, 1999.
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Xxxxxx X. Xxxxxx, Secretary
Xxxxxx Lodging Company
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