Exhibit 10.4
XXXXXXX OPERATING LIMITED PARTNERSHIP
AMENDMENT TO SECOND RESTATED AGREEMENT OF LIMITED PARTNERSHIP RELATING TO
8.875% SERIES B CUMULATIVE REDEEMABLE PERPETUAL PREFERRED UNITS
This Amendment to Second Restated Agreement of Limited Partnership of
Xxxxxxx Operating Limited Partnership, a Delaware limited partnership (the
"PARTNERSHIP"), dated February 23, 1999 (this "AMENDMENT") amends the Second
Restated Agreement of Limited Partnership of the Partnership, dated September 2,
1997, as amended (the "PARTNERSHIP AGREEMENT"), by and among Xxxxxxx Real
Estate, Inc. (the "GENERAL PARTNER") and each of the limited partners executing
a signature page hereto (the "CONTRIBUTORS"). 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;
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:
SECTION 1. DEFINITIONS. For purposes of this Amendment, (i) the term
"PARITY PREFERRED UNITS" shall be used to refer to any class or series of
Partnership Interests of the Partnership now or hereafter authorized, issued or
outstanding expressly designated by the Partnership to rank on a parity with
Series B Preferred Units (as hereinafter defined) with respect to distributions
and rights upon voluntary or involuntary liquidation, winding-up or dissolution
of the Partnership and shall include, without limitation, the Series A Preferred
Units (as defined in that certain Amendment to Second Restated Agreement of
Limited Partnership, dated August 6, 1998 (the "SERIES A PREFERRED AMENDMENT"),
(ii) the term "PRIORITY RETURN" shall mean, an amount equal to 8.875% per annum,
determined on the basis of a 360 day year of twelve 30 day months (or actual
days for any month which is shorter than a full monthly period), cumulative to
the extent not distributed for any given distribution period pursuant to Section
8.4 of the Partnership Agreement, of the stated value of $25.00 per Series B
Preferred Unit, commencing on the date of issuance of such Series B Preferred
Unit, (iii) the term "SUBSIDIARY" shall mean with respect to any person, any
corporation, partnership, limited liability company, joint venture or other
entity of which a majority of (x) voting power of the voting equity securities
or (y) the outstanding equity interests, is owned, directly or indirectly, by
such person, (iv) the term "PTP" shall mean a "publicly traded partnership"
within the meaning of Section 7704 of the Code, (v) the term "AFFILIATE" shall
mean, as to any Person, any Entity which, directly or indirectly through one or
more intermediaries, controls, is controlled by or is under common control with
such Person, and (vi) "CONTRIBUTION AGREEMENTS" mean those certain Contribution
Agreements, dated February 23, 1999, by and among the General Partner and the
Partnership and respectively, Belcrest Realty Corporation and Belair Real Estate
Corporation.
SECTION 2. DESIGNATION AND NUMBER. Pursuant to Section 3.1.C of the
Partnership Agreement, a series of Units of Partnership Interests in the
Partnership designated as the "8.875% Series B Cumulative Redeemable Perpetual
Series B Preferred Units" (the "SERIES B PREFERRED UNITS") is hereby
established. The number of Series B Preferred Units shall be 2,000,000.
SECTION 3. DISTRIBUTIONS. (a) PAYMENT OF DISTRIBUTIONS. Subject
to the rights of holders of Parity Preferred Units as to the payment of
distributions, pursuant to Section 8.4 of the Partnership Agreement, holders
of Series B Preferred Units shall be entitled to receive, when, as and if
declared by the Partnership acting through the General Partner, out of
Operating Cash Flow and Capital Cash Flow, cumulative preferential cash
distributions at the rate per annum of 8.875% of the original Capital
Contribution per Series B Preferred Unit. Such distributions shall be
cumulative, shall accrue from the original date of issuance and will be
payable (i) quarterly in arrears, on the last day (or, if not a Business Day
(as hereinafter defined), the next succeeding Business Day of each of March,
June, September and December of each year commencing on March 31, 1999 and,
(ii) in the event of (A) an exchange of Series B Preferred Units into Series
B Preferred Stock (as hereinafter defined), or (B) a redemption of Series B
Preferred Units, on the exchange date or redemption date, as applicable (each
a "SERIES B PREFERRED UNIT DISTRIBUTION PAYMENT DATE"). The amount of the
distribution payable for any period will be computed on the basis of a
360-day year of twelve 30-day months and for any period shorter than a full
quarterly period for which distributions are computed, the amount of the
distribution payable will be computed on the basis of the actual number of
days elapsed in such a 30-day month. If any date on which distributions are
to be made on the Series B Preferred Units is not a Business Day, then
payment of the distribution to be made on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay) except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and
effect as if made on such date. Distributions on the Series B Preferred Units
will be made to the holders of record of the Series B Preferred Units on the
relevant record dates to be fixed by the Partnership acting
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through the General Partner, which record dates shall be the same day as the
record date for any distribution payable on Junior Units (as hereinafter
defined), with respect to the same period, or, if no such distribution is
payable in respect of the Junior Units, the 20/th/ day of the calendar month
in which the applicable distribution falls or on such earlier date designated
on at least 10 days' notice by the Board of Directors of the General Partner
as the record date for such distribution that is not more than 30 nor less
than 10 days prior to such Series B Preferred Unit Distribution Payment Date
(the "SERIES B PREFERRED UNIT PARTNERSHIP RECORD DATE").
The term "BUSINESS DAY" shall mean each day, other than a Saturday or a
Sunday, which is not a day on which banking institutions in New York, New York
are authorized or required by law, regulation or executive order to close.
(b) PROHIBITION ON DISTRIBUTION. No distributions on Series B 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 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) DISTRIBUTIONS CUMULATIVE. Distributions on the Series B Preferred
Units will accrue whether or not the terms and provisions of any agreement of
the Partnership, including any agreement relating to its indebtedness 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 of such distributions and whether or not such distributions
are authorized. Accrued but unpaid distributions on the Series B Preferred Units
will accumulate as of the Series B Preferred Unit Distribution Payment Date on
which they first become payable. Distributions on account of arrears for any
past distribution periods may be declared and paid at any time, without
reference to a regular Series B Preferred Unit Distribution Payment Date to
holders of record of the Series B Preferred Units on the record date fixed by
the Partnership acting through the General Partner which date shall not exceed
thirty (30) days prior to the payment date. Accumulated and unpaid distributions
will not bear interest.
(d) PRIORITY AS TO DISTRIBUTIONS. (i) So long as any Series B
Preferred Units are outstanding, no distribution of cash or other property
shall be authorized, declared, paid or set apart for payment on or with
respect to any class or series of Partnership Interest ranking junior as to
the payment of distributions or rights upon a voluntary or involuntary
liquidation, dissolution or winding-up of the Partnership to the Series B
Preferred Units (collectively, "JUNIOR UNITS"), nor shall any cash or other
property be set aside for or applied to the purchase, redemption or other
acquisition for consideration of any Series B Preferred Units, any Parity
Preferred Units or any Junior Units, unless, in each case, all distributions
accumulated on all Series B Preferred Units
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and all classes and series of outstanding Parity Preferred Units have been
paid in full. The foregoing sentence will not prohibit (a) distributions
payable solely in Junior Units, (b) the conversion of Junior Units or Parity
Preferred Units into Partnership Interests ranking junior to the Series B
Preferred Units, or (c) the redemption of Partnership Interests corresponding
to any Series B Preferred Stock, Parity Preferred Stock or Junior Stock to be
purchased by the General Partner pursuant to Article IX of the Charter) to
preserve the General Partner's status as a real estate investment trust,
provided that such redemption shall be upon the same terms as the
corresponding purchase pursuant to Article IX of the Charter.
(ii) So long as distributions have not been paid in full (or a sum
sufficient for such full payment is not irrevocably deposited in trust for
payment) upon the Series B Preferred Units, all distributions authorized and
declared on the Series B Preferred Units and all classes or series of
outstanding Parity Preferred Units shall be authorized and declared so that the
amount of distributions authorized and declared per Series B Preferred Unit and
such other classes or series of Parity Preferred Units shall in all cases bear
to each other the same ratio that accrued distributions per Series B Preferred
Unit and such other classes or series of Parity Preferred Units (which shall not
include any accumulation in respect of unpaid distributions for prior
distribution periods if such class or series of Parity Preferred Units do not
have cumulative distribution rights) bear to each other. Any distribution
payment made on the Series B Preferred Units shall first be credited against the
earliest accrued but unpaid distribution due with respect to such Series B
Preferred Units which remains payable.
(e) NO FURTHER RIGHTS. Holders of Series B Preferred Units shall not be
entitled to any distributions, whether payable in cash, other property or
otherwise, in excess of the full cumulative distributions described herein.
SECTION 4. ALLOCATIONS. Section 7.1 of the Partnership Agreement is
hereby amended as follows:
To the extent permitted under Section 704(b) of the Code, solely for
the purposes of allocating Profits or Losses in any taxable year (or a portion
thereof) to the holders of Series B Preferred Units pursuant to Section 7 of the
Partnership Agreement, items of Profits or Losses, as the case may be, shall not
include Depreciation with respect to properties that are "ceiling limited" in
respect of holders of Series B Preferred Units. For purposes of the preceding
sentence, Partnership property shall be considered "ceiling limited" in respect
of a holder of Series B Preferred Units if Depreciation attributable to such
Partnership property which would otherwise be allocable to such holder, without
regard to this paragraph, exceeded depreciation determined for federal income
tax purposes attributable to such Partnership property which would otherwise be
allocable to such holder by more than 5%.
SECTION 5. LIQUIDATION PROCEEDS. (a) Subject to the rights of
holders of Parity Preferred Units with respect to rights upon any voluntary
or involuntary liquidation,
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dissolution or winding-up of the Partnership and subject to preferred
Partnership Interests ranking senior to the Series B Preferred Units with
respect to rights upon any voluntary or involuntary liquidation, dissolution
or winding-up of the Partnership, the holders of Series B Preferred Units
shall be entitled to receive out of the assets of the Partnership legally
available for distribution or the proceeds thereof, after payment or
provision for debts and other liabilities of the Partnership, but before any
payment or distributions of the assets shall be made to holders of Junior
Units, an amount equal to the sum of (i) a liquidation preference in an
amount equal to the positive Capital Account balance of the holder of the
Series B Preferred Units and (ii) to the extent properly allocable under
Article 7 of the Partnership Agreement and not previously allocated to the
Capital Account balance of the holders of the Series B Preferred Units, an
amount equal to any accumulated and unpaid distributions thereon, whether or
not declared, to the date of payment. In the event of any conflict between
the provisions of this Section 5 and Section 15.2 of the Partnership
Agreement, the provisions of this Section 5 shall control.
(b) NOTICE. Written notice of any such voluntary or involuntary
liquidation, dissolution or winding-up of the Partnership, stating the payment
date or dates when, and the place or places where, the amounts distributable in
such circumstances shall be payable, shall be given by (i) fax and (ii) by first
class mail, postage pre-paid, not less than thirty (30) and not more than sixty
(60) days prior to the payment date stated therein, to each record holder of the
Series B Preferred Units at the respective addresses of such holders as the same
shall appear on the transfer records of the Partnership.
(c) NO FURTHER RIGHTS. After payment of the full amount of the liquidating
distributions to which they are entitled, the holders of Series B Preferred
Units will have no right or claim to any of the remaining assets of the
Partnership (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).
(d) CONSOLIDATION, MERGER OR CERTAIN OTHER TRANSACTIONS. The voluntary
sale, conveyance, lease, exchange or transfer (for cash, shares of stock,
securities or other consideration) of all or substantially all of the property
or assets of the General Partner or the Partnership to, or the consolidation or
merger or other business combination of the Partnership or the General Partner
with or into, any corporation, trust or other entity (or of any corporation,
trust or other entity with or into the Partnership) or a statutory share
exchange of the General Partner shall not be deemed to constitute a liquidation,
dissolution or winding-up of the Partnership.
SECTION 6. OPTIONAL REDEMPTION. (a) RIGHT OF OPTIONAL
REDEMPTION. The Series B Preferred Units may not be redeemed prior to the
fifth (5/th/) anniversary of the issuance date. On or after such date, the
Partnership shall have the right to redeem the Series B Preferred Units, in
whole or in part, at any time or from time to time, upon not less than 30 nor
more than 60 days' written notice, at a redemption price (the "SERIES B
REDEMPTION PRICE"), payable in cash
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(or such number of Series B Preferred Shares to which the holders of the
Series B Preferred Units would be entitled upon an exchange of the Series B
Preferred Units in accordance with Section 9 of this Amendment to the extent
all such redeemed Series B Preferred Units would be exchangeable for Series B
Preferred Shares pursuant to Section 9 of this Amendment), equal to the
Capital Account balance of the holder of Series B Preferred Units; provided,
however, that no redemption pursuant to this SECTION 6 will be permitted if
the Redemption Price does not equal or exceed the original Capital
Contribution of such holder plus the cumulative Priority Return, whether or
not declared, to the redemption date to the extent not previously
distributed. If fewer than all of the outstanding Series B Preferred Units
are to be redeemed, the Series B Preferred Units to be redeemed shall be
selected pro rata (as nearly as practicable without creating fractional
Units).
(b) LIMITATION ON REDEMPTION. (i) The Redemption Price of the Series B
Preferred Units (other than the portion thereof consisting of accumulated but
unpaid distributions) will be payable solely out of the sale proceeds of capital
stock of the General Partner, which will be contributed by the General Partner
to the Partnership as additional capital contribution, or out of the sale of
limited partner interests in the Partnership and from no other source. For
purposes of the preceding sentence, "capital stock" means any equity securities
(including Common Stock and Preferred Stock (as such terms are defined in the
Charter)), shares, depository receipts, 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.
(ii) The Partnership may not redeem fewer than all of the outstanding
Series B Preferred Units unless all accumulated and unpaid distributions have
been paid on all Series B Preferred Units for all quarterly distribution periods
terminating on or prior to the date of redemption.
(c) PROCEDURES FOR REDEMPTION. (i) Notice of redemption will be (A)
faxed, and (B) mailed by the Partnership, by certified mail, postage prepaid,
not less than 30 nor more than 60 days prior to the redemption date,
addressed to the respective holders of record of the Series B Preferred Units
at their respective addresses as they appear on the records of the
Partnership. No failure to give or defect in such notice shall affect the
validity of the proceedings for the redemption of any Series B Preferred
Units except as to the holder to whom such notice was defective or not given.
In addition to any information required by law, each such notice shall state:
(m) the redemption date, (n) the Redemption Price, (o) the aggregate number
of Series B Preferred Units to be redeemed and if fewer than all of the
outstanding Series B Preferred Units are to be redeemed, the number of Series
B Preferred Units to be redeemed held by such holder, which number shall
equal such holder's pro rata share (based on the percentage of the aggregate
number of outstanding Series B Preferred Units the total number of Series B
Preferred Units held by such holder represents) of the aggregate number of
Series B Preferred Units to be redeemed, (p) the place or places where such
Series B Preferred Units are to be surrendered for payment of
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the Redemption Price, (q) that distributions on the Series B Preferred Units
to be redeemed will cease to accumulate on such redemption date and (r) that
payment of the Redemption Price will be made upon presentation and surrender
of such Series B Preferred Units.
(ii) If the Partnership gives a notice of redemption in respect of
Series B Preferred Units (which notice will be irrevocable) then, by 12:00 noon,
New York City time, on the redemption date, the Partnership will deposit
irrevocably in trust for the benefit of the Series B Preferred Units being
redeemed funds sufficient to pay the applicable Redemption Price and will give
irrevocable instructions and authority to pay such Redemption Price to the
holders of the Series B Preferred Units upon surrender of the Series B Preferred
Units by such holders at the place designated in the notice of redemption. If
the Series B Preferred Units are evidenced by a certificate and if fewer than
all Series B Preferred Units evidenced by any certificate are being redeemed, a
new certificate shall be issued upon surrender of the certificate evidencing all
Series B Preferred Units, evidencing the unredeemed Series B Preferred Units
without cost to the holder thereof. On and after the date of redemption,
distributions will cease to accumulate on the Series B Preferred Units or
portions thereof called for redemption, unless the Partnership defaults in the
payment thereof. If any date fixed for redemption of Series B Preferred Units is
not a Business Day, then payment of the Redemption Price payable on such date
will be made on the next succeeding day that is a Business Bay (and without any
interest or other payment in respect of any such delay) except that, if such
Business Day falls in the next calendar year, such payment will be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date fixed for redemption. If payment of the Redemption Price
is improperly withheld or refused and not paid by the Partnership, distributions
on such Series B Preferred Units will continue to accumulate from the original
redemption date to the date of payment, in which case the actual payment date
will be considered the date fixed for redemption for purposes of calculating the
applicable Redemption Price.
SECTION 7. VOTING RIGHTS. (a) GENERAL. Holders of the Series B
Preferred Units will not have any voting rights or right to consent to any
matter requiring the consent or approval of the Limited Partners, except as set
forth in Section 17 of the Partnership Agreement and in this Section 7.
(b) CERTAIN VOTING RIGHTS. So long as any Series B Preferred Units
remain outstanding, the Partnership shall not, without the affirmative vote
of the holders of at least two-thirds of the Series B Preferred Units
outstanding at the time: (i) authorize or create, or increase the authorized
or issued amount of, any class or series of Partnership Interests ranking
prior to the Series B Preferred Units with respect to payment of
distributions or rights upon liquidation, dissolution or winding-up or
reclassify any Partnership Interests into any such Partnership Interest, or
create, authorize or issue any obligations or security convertible into or
evidencing the right to purchase any such Partnership Interests; (ii)
authorize or create, or increase the authorized or issued amount of any
Parity Preferred Units or reclassify any Partnership Interest into any such
Partnership Interest or create, authorize or issue any obligations or
security
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convertible into or evidencing the right to purchase any such Partnership
Interests but only to the extent such Parity Preferred Units are issued to an
Affiliate of the Partnership (unless issued to the General Partner insofar as
the issuance of such interests is in connection with the issuance by the
General Partner of corresponding preferred stock either (1) to persons who
are not Affiliates of the Partnership, or (2) to persons who are Affiliates
of the Partnership upon terms no more favorable to such Affiliates than those
it would offer in an arm's length transaction to an unrelated party); or
(iii) either (A) consolidate, merge into or with, or convey, transfer or
lease its assets substantially as an entirety to, any corporation or other
entity or (B) amend, alter or repeal the provisions of the Partnership
Agreement (including, without limitation, the first paragraph of Section
3.1(F) thereof), whether by merger, consolidation or otherwise, in each case
in a transaction or manner that would materially and adversely affect the
powers, special rights, preferences, privileges or voting power of the Series
B Preferred Units or the holders thereof; PROVIDED, HOWEVER, that with
respect to the occurrence of a merger, consolidation or a sale or lease of
all of the Partnership's assets as an entirety, so long as (l) the
Partnership is the surviving entity and the Series B Preferred Units remain
outstanding with the terms thereof unchanged, or (2) the resulting, surviving
or transferee entity is a partnership, limited liability company or other
pass-through entity organized under the laws of any state and substitutes the
Series B Preferred Units for other interests in such entity having
substantially the same terms and rights as the Series B Preferred Units,
including with respect to distributions, voting rights and rights upon
liquidation, dissolution or winding-up, then the occurrence of any such event
shall not be deemed to materially and adversely affect such rights,
privileges or voting powers of the holders of the Series B Preferred Units;
and PROVIDED FURTHER that any increase in the amount of Partnership Interests
or the creation or issuance of any other class or series of Partnership
Interests or obligation or security convertible into or evidencing the right
to purchase any such Partnership Interests, in each case ranking (y) junior
to the Series B Preferred Units with respect to payment of distributions or
the distribution of assets upon liquidation, dissolution or winding-up, or
(z) on a parity to the Series B Preferred Units with respect to payment of
distributions or the distribution of assets upon liquidation, dissolution or
winding-up to the extent such Partnership Interests are not issued to an
Affiliate of the Partnership, (unless issued to the General Partner to the
extent the issuance of such interests is in connection with the issuance by
the General Partner of corresponding preferred stock either (1) to persons
who are not Affiliates of the Partnership or (2) persons who are Affiliates
of the Partnership upon terms no more favorable to such Affiliates than those
it would offer in an arm's length transaction to an unrelated party), shall
not be deemed to materially and adversely affect such rights, preferences,
privileges or voting powers of the Series B Preferred Units. In the event of
any conflict between the provisions of Section 17 of the Partnership
Agreement and the provisions of this Section 7, the provisions of this
Section 7 shall control.
SECTION 8. TRANSFER RESTRICTIONS. The Series B Preferred Units shall
be subject to all of the provisions of Article 12 of the Partnership Agreement.
Article 12 is hereby amended as follows:
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(i) the references in 12.2.C(v) to "the Financing Partnership (or any
other entity taxed as a partnership for federal income tax purposes)" shall be
deemed to be references to "any subsidiary of the Partnership taxed as a
partnership for federal income tax purposes"); and
(ii) A new Section 12.2(D) shall be added at the end of Section 12.2
as follows:
"Notwithstanding anything to the contrary in Section 12.2(A) or
Section 12.2(B) hereof, provided that a Transfer, and, if applicable, a
Transferee, of all or any portion of the Series B Preferred Units (A) does not
violate the provisions of Section 12.2(C) hereof, (B) effects a Transfer to an
entity that is an accredited investor within the meaning of Regulation D under
the Securities Act, (C) for so long as the Partnership shall satisfy the private
placement safe harbor of Treasury Regulation Section 1.7704-1(h) (taking into
account any person treated as a partner under Treasury Regulation Section
1.7704-1(h) (3)), does not cause the total number of such persons holding Series
B Preferred Units to exceed five (5) and (D) with respect to such Transfer, the
Transferor and Transferee, as applicable, represent to the General Partner in an
ownership certificate (the "OWNERSHIP CERTIFICATE") in such form as is
reasonably acceptable to the General Partner
(i) for so long as the Partnership is complying with the safe
harbor of Notice 88-75 (1988-2 C.B. 386) the maximum number of Look-Through
Partners (as hereinafter defined) in the Transferee;
(ii) that such Transferee would not cause the General Partner to fail
to satisfy the requirements of Section 856(a)(6) and 856(h) of the Code if (A)
all Series B Preferred Units, including those to be Transferred to such
Transferee, were exchanged for Series B Preferred Stock (as defined below), (B)
there were no outstanding stock of any other class of the General Partner and
(C) such determination was made during the last half of the General Partner's
taxable year;
(iii) for so long as the Partnership is complying with the safe harbor
of Notice 88-75 (1988-2 C.B. 386), such purported Transferee's undertaking not
to allow the number of Look-Through Partners certified in clause (i) to increase
without the General Partner's prior written consent;
(iv) such purported Transferee's undertaking not to permit the fact
stated in clause (ii) to become untrue; and
(v) such purported Transferee's undertaking to become a Substituted
Limited Partner and to be bound by the terms of the Partnership Agreement,
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the General Partner shall not withhold its consent to such Transfer to such
Transferee and, after receiving such consent, (i) such Transferee shall be
considered a substituted Limited Partner upon receipt by the General Partner
of a written agreement of the Transferee to become a Substituted Limited
Partner and to be bound by the terms of the Partnership Agreement; (ii) the
Partnership and the General Partner shall treat such Transferee as the
absolute owner of the interest transferred in all respects; and (iii) the
General Partner shall not have the right to require any such transferor to
have such transferor's transferred Partnership Interest redeemed; provided,
however, that notwithstanding the foregoing the General Partner may withhold
such consent if either (x) any purported Transferee shall fail to deliver the
Ownership Certificate or (y) at such time the Partnership is relying on the
safe harbor of Notice 88-75 (1988-2 C.B. 386) and the sum of the total number
of partners on a look-through basis, determined pursuant to Notice 88-75
(1988-2 C.B. 386) ("LOOK-THROUGH PARTNERS"), of a purported Transferee plus
the total number of Look-Through Partners of all other holders of Series B
Preferred Units would as of the date of such Transfer exceed 200.
SECTION 9. EXCHANGE RIGHTS. (a) RIGHT TO EXCHANGE. (i) Series
B Preferred Units will be exchangeable, subject to Section 9(a)(v), (A) in
whole or in part at any time on or after the tenth (10/th/) anniversary of
the date of issuance, at the option of the holders thereof, for authorized
but previously unissued shares of 8.875% Series B Cumulative Redeemable
Preferred Stock of the General Partner (the "SERIES B PREFERRED STOCK") at an
exchange rate of one share of Series B Preferred Stock for one Series B
Preferred Unit, subject to adjustment as described below (the "SERIES B
EXCHANGE PRICE"); (B) at any time, in whole or in part, at the option of the
holders of Series B Preferred Units for Series A Preferred Stock if (y) at
any time full distributions shall not have been timely made on any Series B
Preferred Unit with respect to six (6) prior quarterly distribution periods,
whether or not consecutive, provided, however, that a distribution in respect
of Series B Preferred Units shall be considered timely made if made within
two (2) Business Days after the applicable Series B Preferred Unit
Distribution Payment Date if at the time of such late payment there shall not
be any prior quarterly distribution periods in respect of which full
distributions were not timely made or (z) upon receipt by a holder or holders
of Series B Preferred Units of (1) notice from the General Partner that the
General Partner has taken the position that the Partnership is, or upon the
occurrence of a defined event in the immediate future will be, a PTP and (2)
an opinion rendered by an outside nationally recognized independent counsel
familiar with such matters addressed to a holder or holders of Series B
Preferred Units, that the Partnership is or likely is, or upon the occurrence
of a defined event in the immediate future will be or likely will be, a PTP;
(C) in whole or in part, at the option any holder prior to the tenth (10th)
anniversary of the issuance date and after the third anniversary thereof if
such holder of Series B Preferred Units shall deliver to the General Partner
either (i) a private ruling letter addressed to such holder of Series B
Preferred Units or (ii) an opinion of independent counsel reasonably
acceptable to the General Partner based on the enactment of temporary or
final Treasury Regulations or the publication of a Revenue Ruling, in either
case to the effect that an exchange of the Series B Preferred Units at such
earlier time would not cause the Series B Preferred Units to be considered
"stock and securities" within the meaning of section 351(e) of
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the Internal Revenue Code of 1986, as amended (the "CODE") for purposes of
determining whether the holder of such Series B Preferred Units is an
"investment company" under section 721(b) of the Code if an exchange is
permitted at such earlier date; and (D) in whole but not in part (regardless
of whether held by Contributors) for Series B Preferred Stock (but only if
the exchange in whole may be accomplished consistently with the ownership
limitations set forth under the Article IX of the Charter of the General
Partner as supplemented by Section 5(e) of the Articles Supplementary of the
General Partner setting forth the terms of the Series B Preferred Stock (the
"SERIES B ARTICLES"), taking into account exceptions thereto and the
provisions of Section 9(a)(v) below) if at any time, (i) the Partnership
reasonably determines that the assets and income of the Partnership for a
taxable year after 1999 would not satisfy the income and assets tests of
Section 856 of the Code for such taxable year if the Partnership were a real
estate investment trust within the meaning of the Code or (ii) any holder of
Series B Preferred Units shall deliver to the Partnership and the Company an
opinion of independent counsel based upon information referred to in
paragraph 4(f)(iii) of the Contribution Agreements or information contained
in the Company publicly filed documents and which is acceptable to the
Company in its reasonable discretion to the effect that, based on the assets
and income of the Partnership for a taxable year after 1999, the Partnership
would not satisfy the income and assets tests of Section 856 of the Code for
such taxable year if the Partnership were a real estate investment trust
within the meaning of the Code and that such failure would create a
meaningful risk that a holder of the Series B Preferred Units would fail to
maintain qualification as a real estate investment trust.
(ii) Notwithstanding anything to the contrary set forth in SECTION
9(A)(I), if an Exchange Notice (as hereinafter defined) has been delivered to
the General Partner, then the General Partner may, at its option, elect to
redeem or cause the Partnership to redeem all or a portion of the outstanding
Series B Preferred Units for cash in an amount equal to the original Capital
Contribution per Series B Preferred Unit and all accrued and unpaid
distributions thereon to the date of redemption. The General Partner may
exercise its option to redeem the Series B Preferred Units for cash pursuant to
this SECTION 9(A)(II) by giving each holder of record of Series B Preferred
Units notice of its election to redeem for cash, within ten (10) Business Days
after receipt of the Exchange Notice, by (m) fax, and (n) registered mail,
postage paid, at the address of each holder as it may appear on the records of
the Partnership stating (A) the redemption date, which shall be no later than
sixty (60) days following the receipt of the Exchange Notice, (B) the redemption
price, (C) the place or places where the Series B Preferred Units are to be
surrendered for payment of the redemption price, (D) that distributions on the
Series B Preferred Units will cease to accrue on such redemption date; (E) that
payment of the redemption price will be made upon presentation and surrender of
the Series B Preferred Units and (F) the aggregate number of Series B Preferred
Units to be redeemed, and if fewer than all of the outstanding Series B
Preferred Units are to be redeemed, the number of Series B Preferred Units to be
redeemed held by such holder, which number shall equal such holder's pro-rata
share (based on the percentage of the aggregate number of outstanding Series B
Preferred Units the total number of Series B Preferred Units held by such holder
represents) of the aggregate number of Series B Preferred Units being redeemed.
11
(iii) In the event an exchange of all or a portion of Series B
Preferred Units pursuant to SECTION 9(A)(I) would violate the provisions on
ownership limitation of the General Partner set forth in Article IX of the
Charter of the General Partner as supplemented by Section 5(e) of the Series B
Articles with respect to the Series B Preferred Stock, the General Partner shall
give written notice thereof to each holder of record of Series B Preferred
Units, within ten (10) Business Days following receipt of the Exchange Notice,
by (m) fax, and (n) registered mail, postage prepaid, at the address of each
such holder set forth in the records of the Partnership. In such event, each
holder of Series B Preferred Units shall be entitled to exchange, pursuant to
the provision of SECTION 9(B) a number of Series B Preferred Units which would
comply with the provisions on the ownership limitation of the General Partner
set forth in such Article IX of the Charter of the General Partner as
supplemented by Section 5(e) of the Series B Articles (taking into account any
waiver granted pursuant to the provisions of subsection (v) below) and any
Series B Preferred Units not so exchanged (the "EXCESS UNITS") shall, if the
same are not the result of an exchange permitted solely by virtue of the
exchange rights set forth in Sections 9(a)(i)(A), 9(a)(i)(B)(z) (but only to the
extent the Partnership has become a PTP and there has been a breach by the
holders of the Series B Preferred Units of their obligations under Section 8 of
this Amendment) or 9(a)(i)(C), be redeemed by the Partnership for cash in an
amount equal to the original Capital Contribution per Excess Unit, plus any
accrued and unpaid distributions thereon, whether or not declared, to the date
of redemption. The written notice of the General Partner shall state (A) the
number of Excess Units held by such holder, (B) the redemption price of the
Excess Units, (C) the date on which such Excess Units shall be redeemed, which
date shall be no later than sixty (60) days following the receipt of the
Exchange Notice, (D) the place or places where such Excess Units are to be
surrendered for payment of the Redemption Price, (E) that distributions on the
Excess Units will cease to accrue on such redemption date, and (F) that payment
of the redemption price will be made upon presentation and surrender of such
Excess Units.
(iv) The redemption of Series B Preferred Units described in SECTION
9(A)(II) and (III) shall be subject to the provisions of SECTION 6(B)(I) and
SECTION 6(C)(II); provided, however, that the term "redemption price" in such
Section shall be read to mean the original Capital Contribution per Series B
Preferred Unit being redeemed plus all accrued and unpaid distributions to the
redemption date.
(v) Notwithstanding anything to the contrary set forth hereinabove,
(A) no Series B Preferred Units will be exchangeable hereunder for Series B
Preferred Stock to the extent such exchange of all such Series B Preferred Units
tendered for exchange for Series B Preferred Stock would cause such Holder of
such Series B Preferred Units, after giving effect to such exchange, to violate
the limitations set forth in Section 5(e) of the Series B Articles; provided,
however, that the General Partner will waive such limitations if (i) such Holder
demonstrates to the General Partner's reasonable satisfaction that the exchange
of such Series B Preferred Units would not cause the General Partner to fail to
satisfy the requirements of Section 856(a)(6) and 856(h) of the Code assuming
(a) that there were no outstanding stock of
12
any other class of the General Partner and (b) such determination were made
during the last half of the General Partner's taxable year and (ii) such waiver
and exchange does not jeopardize the REIT status of the General Partner
(including, but not limited to, by taking into account all beneficial and
constructive ownership in the General Partner of such Holder) or cause it to
incur income which would fail to qualify as rents from real property pursuant to
856(d)(2)(B) of the Code and is not inconsistent with its fiduciary duties to
all of its shareholders and the Limited Partners, including the holders of the
Series B Preferred Units and Series B Preferred Stock and (B) at no time will
fewer than 500,000 Series B Preferred Units be exchangeable, unless the total
number of outstanding Series B Preferred Units shall be less than 500,000 at
such time, in which case no fewer than all such outstanding Series B Preferred
Units shall be exchangeable, subject, in any event, to the provisions in the
foregoing clause (A).
(b) PROCEDURE FOR EXCHANGE. (i) Any exchange shall be exercised pursuant
to a notice of exchange (the "EXCHANGE NOTICE") delivered to the General Partner
by the holder who is exercising such exchange right, by (a) fax and (b) by
certified mail postage prepaid. Except as otherwise provided in Sections
9(a)(ii) and 9(a)(iii), the General Partner and the Partnership shall effect any
exchange of Series B Preferred Units by delivering to each holder of record of
Series B Preferred Units, within ten (10) Business Days following receipt of the
Exchange Notice, (1) certificates representing the Series B Preferred Stock
being issued in exchange for the Series B Preferred Units of such holder being
exchanged and (2) a written notice stating (A) the exchange date, which may be
the date of such written notice or any other date which is not later than
fifteen (15) Business Days following the receipt of the Exchange Notice, (B) the
Exchange Price, and (C) that distributions on the Series B Preferred Units will
cease to accrue on such exchange date. As a condition to the exchange, the
General Partner may require the holders of Series B Preferred Units to make such
representations as may be reasonably necessary for the General Partner to
establish that the issuance of Series B Preferred Stock pursuant to the exchange
shall not be required to be registered under the Securities Act of 1933, as
amended, or any state securities laws. Any Series B Preferred Stock issued
pursuant to this SECTION 9 shall be delivered as shares which are duly
authorized, validly issued, fully paid and nonassessable, free of pledge, lien,
encumbrance or restriction other than those provided in the Charter, the Bylaws
of the General Partner, the Securities Act of 1933, as amended and relevant
state securities or blue sky laws or created by the exchanging holder of Series
B Preferred Units. Each Series B Preferred Unit exchanged hereunder for a share
of Series B Preferred Stock shall be transferred to and acquired by the General
Partner and shall not be canceled or redeemed while such share of Series B
Preferred Stock is outstanding.
The certificates representing the Series B Preferred Shares issued
upon exchange of the Series B Preferred Units shall contain the following
legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED,
SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED
13
OF EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR (B) IF THE
CORPORATION HAS BEEN FURNISHED WITH A SATISFACTORY OPINION OF
COUNSEL FOR THE HOLDER OF THE SHARES REPRESENTED HEREBY, OR OTHER
EVIDENCE SATISFACTORY TO THE CORPORATION, THAT SUCH TRANSFER, SALE,
ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION IS EXEMPT
FROM THE PROVISIONS OF SECTION 5 OF THE ACT AND THE RULES AND
REGULATIONS THEREUNDER
(ii) In the event of an exchange of Series B Preferred Units for
shares of Series B Preferred Stock, an amount equal to the accrued and unpaid
distributions, whether or not declared, to the date of exchange on any Series B
Preferred Units tendered for exchange shall (a) accrue on the shares of the
Series B Preferred Stock into which such Series B Preferred Units are exchanged,
and (b) continue to accrue on such Series B Preferred Units, which shall remain
outstanding following such exchange, with the General Partner as the holder of
such Series B Preferred Units. Notwithstanding anything to the contrary set
forth herein, in no event shall a holder of a Series B Preferred Unit that was
validly exchanged into Series B Preferred Stock pursuant to this section (other
than the General Partner now holding such Series B Preferred Unit), receive a
distribution out of Operating Cash Flow or Capital Cash Flow of the Partnership,
if such holder, after exchange, is entitled to receive a distribution out of
Operating Cash Flow or Capital Cash Flow with respect to the share of Series B
Preferred Stock for which such Series B Preferred Unit was exchanged or
redeemed.
(iii) Fractional shares of Series B Preferred Stock are not to be
issued upon exchange but, in lieu thereof, the General Partner will pay a cash
adjustment based upon the fair market value of the Series B Preferred Stock on
the day prior to the exchange date as determined in good faith by the Board of
Directors of the General Partner.
(c) ADJUSTMENT OF EXCHANGE PRICE. (i) The Exchange Price is subject to
adjustment upon certain events, including, (a) subdivisions, combinations and
reclassification of the Series B Preferred Stock, and (b) distributions to all
holders of Series B Preferred Stock of evidences of indebtedness of the General
Partner or assets (including securities, but excluding dividends and
distributions paid in cash out of equity applicable to Series B Preferred
Stock).
(ii) In case the General Partner shall be a party to any transaction
(including, without limitation, a merger, consolidation, statutory share
exchange, tender offer for all or substantially all of the General Partner's
capital stock or sale of all or substantially all of the General Partner's
assets), in each case as a result of which the Series B Preferred Stock will be
14
converted into the right to receive shares of capital stock, other securities or
other property (including cash or any combination thereof), each Series B
Preferred Unit will thereafter be exchangeable into the kind and amount of
shares of capital stock and other securities and property receivable (including
cash or any combination thereof) upon the consummation of such transaction by a
holder of that number of shares of Series B Preferred Stock or fraction thereof
into which one Series B Preferred Unit was exchangeable immediately prior to
such transaction. The General Partner may not become a party to any such
transaction unless the terms thereof are consistent with the foregoing. In the
event of any conflict between the provisions of this Section 9(c)(ii) and
Section 17.2 of the Partnership Agreement, the provisions of this Section
9(c)(ii) shall control.
SECTION 10. NO CONVERSION RIGHTS. The holders of the Series B
Preferred Units shall not have any rights to convert such shares into shares of
any other class or series of stock or into any other securities of, or interest
in, the Partnership.
SECTION 11. NO SINKING FUND. No sinking fund shall be established
for the retirement or redemption of Series B Preferred Units.
SECTION 12. EXHIBIT A TO PARTNERSHIP AGREEMENT. In order to duly
reflect the issuance of the Series B 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.
SECTION 13. SPECIAL DISTRIBUTION AND ALLOCATION FOR CERTAIN PROPERTY.
Nothing to the contrary contained in Section 8.9 of the Partnership Agreement
shall limit any of the rights or obligations set forth in this Amendment.
SECTION 14. NO PREEMPTIVE OR OTHER RIGHTS. The holder of Series B
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 B
Preferred Units.
15
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
----------------------------
Name: Xxxxxx X. D'Arcy
Title: President and Chief Executive
Officer
16
BELCREST REALTY CORPORATION
By: /s/ Xxxxxx X. Xxxxx, Xx.
----------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Executive Vice President
BELAIR REAL ESTATE CORPORATION
By: /s/ Xxxxxx X. Xxxxx, Xx.
----------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Executive Vice President
